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As filed with the Securities and Exchange Commission on April 15, 1998.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
AMERICA SERVICE GROUP INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 51-0332317
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
105 Westpark Drive
Suite 300
Brentwood, Tennessee 37027
(Address of Principal Executive Offices, including Zip Code)
---------------------------
AMERICA SERVICE GROUP INC
LAWRENCE H. POMEROY INCENTIVE STOCK PLAN
(Full title of the Plan)
---------------------------
Michael Catalano, Esq.
105 Westpark Drive
Suite 300
Brentwood, Tennessee 37027
(615) 376-1319
(Name, address, including zip code, and telephone number, including area code,
of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
TITLE OF PROPOSED PROPOSED
SECURITIES MAXIMUM MAXIMUM AMOUNT OF
TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share 60,000 Shares $10.5625 $633,750.00 $186.96
===================================================================================================================
</TABLE>
1 An undetermined number of additional shares may be issued if the
anti-dilution adjustment provisions of the plan become operative.
2 Estimated solely for the purpose of computing the registration fee,
pursuant to Rule 457(h) of the Securities Act of 1933, based upon the
price at which the options to purchase the shares of Common Stock being
registered may be exercised, $10.5625.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in the
registration statement:
(a) The registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997 filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934;
(b) All other reports filed by the registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since December 31, 1997; and
(c) The description of the common stock contained in the registrant's
registration statement on Form 8-A filed under the Securities Exchange Act of
1934 (File No. 0-19673), including any amendment or report filed for the purpose
of updating such description.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all shares offered
have been sold or which deregisters all shares then remaining unsold, shall be
deemed to be incorporated by reference in this registration statement and to be
part hereof from the date of filing of such documents (such documents and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this registration statement to the
extent that a statement contained herein or in other subsequently filed
Incorporated Documents modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of directors and officers under certain
circumstances, as therein set forth.
Section 8.7 of the registrant's By-Laws provides that the registrant
shall indemnify officers and directors, and to the extent authorized by the
Board of Directors, employees and agents of the registrant, to the fullest
extent permitted by law and in the manner permissible under the laws of the
State of Delaware. The By-Laws also permit the Board of Directors to authorize
the registrant to purchase and maintain insurance against any liability asserted
against any director, officer, employee or agent of the Company arising out of
his or her capacity as such.
2
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following are filed as exhibits to this registration statement:
4.1 Amended and Restated Certificate of Incorporation of America
Service Group Inc. (incorporated by reference to Exhibit 3.1
to the registrant's Registration Statement on Form S-1,
Registration No. 33-43306, as amended).
4.2 Amended and Restated By-Laws of America Service Group Inc.
(incorporated by reference to Exhibit 3.2 to the registrant's
Annual Report on Form 10-K for the year ended December 31,
1996).
5 Opinion of King & Spalding regarding legality.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Price Waterhouse LLP, independent accountants.
23.3 Consent of King & Spalding (included in opinion filed as
Exhibit 5).
24.1 Power of Attorney (included on signature page).
ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) that, for the purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(2) insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in Item 6 above
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Nashville, State of Tennessee, on April 14, 1998.
AMERICA SERVICE GROUP INC.
By: /s/ Scott L. Mercy
--------------------------------------
Scott L. Mercy
President and Chief Executive Officer,
Director
Each person whose signature appears below constitutes and appoints
Scott L. Mercy, William D. Eberle and Michael Catalano, and each of them, as his
or her true and lawful attorney-in-fact and agent, each with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same
with all exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto each said attorney-in-fact and agent full power and
authority to do and perform each act and thing requisite and necessary to be
done, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on April 14,
1998 in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/s/ Scott L. Mercy President and Chief Executive Officer and Director
- ------------------------------------------ (Principal Executive Officer)
Scott L. Mercy
/s/ Bruce A. Teal Senior Vice President and Chief Financial Officer
- ------------------------------------------ (Principal Financial and Accounting Officer)
Bruce A. Teal
- ------------------------------------------ Director
Thomas F. Bogan
/s/ Jack O. Bovender, Jr. Director
- ------------------------------------------
Jack O. Bovender, Jr.
/s/ William D. Eberle Director
- ------------------------------------------
William D. Eberle
</TABLE>
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SIGNATURE TITLE
/s/ John W. Gildea Director
- --------------------------------------------
John W. Gildea
/s/ Carol R. Goldberg Director
- --------------------------------------------
Carol R. Goldberg
/s/ Douglas L. Jackson Director
- --------------------------------------------
Douglas L. Jackson
5
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EXHIBIT INDEX
Exhibit Number Description
4.1 Amended and Restated Certificate of Incorporation of America
Service Group Inc. (incorporated by reference to Exhibit 31 to
the registrant's Registration Statement on Form S-1,
Registration No. 33-43306, as amended).
4.2 Amended and Restated By-Laws of America Service Group Inc.
(incorporated by reference to Exhibit 3.2 to the registrant's
Annual Report on Form 10-K for the year ended December 31,
1996).
5 Opinion of King & Spalding regarding legality.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Price Waterhouse LLP, independent accountants.
23.3 Consent of King & Spalding (included in opinion filed as
Exhibit 5).
24.1 Power of Attorney (included on signature page).
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KING & SPALDING
191 Peachtree Street
Atlanta, Georgia 30303
April 14, 1998
America Service Group Inc.
105 Westpark Drive
Suite 300
Brentwood, Tennessee 37207
Re: 60,000 Shares of Common Stock, $0.01 Par Value (The "Common
Stock") To Be Issued Pursuant To The Lawrence H. Pomeroy
Incentive Stock Option Plan (the "Plan")
Gentlemen:
We have acted as counsel to America Service Group Inc. (the "Company"),
in connection with the preparation and filing of a registration statement on
Form S-8 (the "Registration Statement"), for registration under the Securities
Act of 1933, as amended, of 60,000 shares of Common Stock, $0.01 par value, of
the Company (the "Common Stock"), to be issued pursuant to the Plan.
In rendering the opinions expressed below we have examined the
Registration Statement, the Plan, and such other documents as we have deemed
necessary to enable us to express the opinions hereinafter set forth. In
addition, we have examined and relied, to the extent we deemed proper, on
certificates of officers of the Company as to factual matters, on the originals
or copies certified or otherwise identified to our satisfaction of all such
corporate records of the Company and such other instruments and certificates of
public officials and other persons as we have deemed appropriate. In our
examination, we have assumed the authenticity of all documents submitted to us
as originals, the conformity to the original documents of all documents
submitted to us as copies, and the genuineness of all signatures on documents
reviewed by us and the legal capacity of natural persons.
Based upon and subject to the foregoing, we are of the opinion that all
legal and corporate proceedings necessary for the authorization and issuance of
the shares of Common Stock to be issued by the Company pursuant to the Plan have
been duly taken and the shares of Common Stock, upon issuance pursuant to the
terms of the Plan, will be duly authorized, validly issued, fully paid and
nonassessable.
We hereby consent to (a) the filing of the foregoing legal opinion as
an exhibit to the Registration Statement and all amendments thereto and (b) all
references to our firm in the Registration Statement.
Very truly yours
/s/ King & Spalding
King & Spalding
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the America Service Group Inc.
Registration Statement on Form S-8 (Registration No. 333 - ), pertaining to the
Lawrence H. Pomeroy Incentive Stock Plan for 60,000 shares of common stock, of
our report dated March 17, 1998, with respect to the consolidated financial
statements and schedule of America Service Group Inc. included in the Annual
Report (Form 10-K) for the year ended December 31, 1997.
/s/ Ernst & Young LLP
Nashville, Tennessee
April 14, 1998
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (Lawrence H. Pomeroy Incentive Stock Plan for 60,000
shares of common stock) of America Service Group, Inc. of our report dated March
11, 1996, except as to Note 15, which is as of March 28, 1996, which appears on
page F-3 of the Company's Annual Report on Form 10-K for the year ended December
31, 1997. We also consent to the incorporation by reference of our report on the
Financial Statement Schedule, which appears on page F-27 of such Annual Report
on Form 10-K.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Linthicum, Maryland
April 13, 1998
