<PAGE> 1
As filed with the Securities and Exchange Commission on October 8, 1999
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)
Delaware 51-0332317
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
105 Westpark Drive, Suite 300
Brentwood, Tennessee 37027
(Address, including zip code, of registrant's principal executive offices)
AMERICA SERVICE GROUP INC.
1999 INCENTIVE STOCK PLAN
(Full title of plan)
Jean L. Byassee, Esq.
General Counsel
105 Westpark Drive, Suite 300
Brentwood, Tennessee 37027
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
Philip A. Theodore, Esq.
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
(404) 572-4600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Registered Amount to Offering Price Aggregate Registration
be Registered Per Share(1) Offering Price(1) Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share........ 786,000 $13.375 $10,512,750.00 $2,927.55
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and
low prices of the Registrant's Common Stock on September 30, 1999, as
reported by the Nasdaq National Market.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act") and the
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The Registrant hereby incorporates by reference the following
documents that the Registrant filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"):
(i) The Registrant's Current Report on Form 8-K filed on January
5, 1999;
(ii) The Registrant's Current Report on Form 8-K filed on February
10, 1999;
(iii) The Registrant's Current Report on Form 8-K/A filed on
February 25, 1999;
(iv) The Registrant's Current Report on Form 8-K/A filed on March
26, 1999;
(v) The Registrant's Annual Report on Form 10-K for its fiscal
year ended December 31, 1998, which was filed on March 26,
1999;
(vi) The Registrant's Quarterly Report on Form 10-Q for its
quarter ended March 31, 1999; which was filed on May 14,
1999;
(vii) The Registrant's Current Report on Form 8-K filed on July 7,
1999;
(viii) The Registrant's Current Report on Form 8-K/A filed on July
28, 1999;
(ix) The Registrant's Quarterly Report on Form 10-Q/A for its
quarter ended March 31, 1999; which was filed on July 28,
1999;
(x) The Registrant's Annual Report on Form 10-K/A for its fiscal
year ended December 31, 1998, which was filed on July 28,
1999;
(xi) The Registrant's Quarterly Report on Form 10-Q for its
quarter ended June 30, 1999; which was filed on August 13,
1999; and
(xii) The Registrant's Current Report on Form 8-K filed on August
31, 1999.
<PAGE> 3
All documents filed by the Registrant subsequent to the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act and prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part of
this Registration Statement from the date of filing of such documents.
Item 4. Description of Securities. Not Applicable.
Item 5. Interests of Named Experts and Counsel. Not Applicable.
Item 6. Indemnification of Officers, Directors, Employees and Agents;
Insurance.
Section 145 of the Delaware General Corporation Law, as amended,
provides in regard to indemnification of directors and officers as follows:
(1) A corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action,
suit or proceeding if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person's conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a manner
which the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that the person's conduct was
unlawful.
(2) A corporation shall have power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that the person is or was
a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred
by the person in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation and
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(3) To the extent that a present or former director or officer of
a corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(4) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of
the
<PAGE> 4
present or former director, officer, employee or agent is proper in the
circumstances because the person has met the applicable standard of conduct set
forth in subsections (a) and (b) of this section. Such determination shall be
made, with respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
(5) Expenses (including attorneys' fees) incurred by an officer
or director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the corporation deems appropriate.
(6) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office.
(7) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against such liability under this
section.
(8) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect to
the resulting or surviving corporation as such person would have with respect
to such constituent corporation if its separate existence had continued.
(9) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the corporation"
as referred to in this section.
(10) The indemnification and advancement of expenses provided by,
or granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
3
<PAGE> 5
(11) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise. The Court of Chancery
may summarily determine a corporation's obligations to advance expenses
(including attorneys' fees).
The Registrant's Amended and Restated Certificate of Incorporation and
Bylaws require the Registrant to indemnify its directors and officers to the
fullest extent permitted by applicable state law. The Registrant may, by action
of its Board of Directors, provide indemnification to employees and agents of
the Registrant with the same scope and effect as the foregoing indemnification
of directors and officers.
Item 7. Exemption from Registration Claimed. Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit Description
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of America
Service Group Inc. (incorporated herein by reference to
Exhibit 3.1 to the Company's Registration Statement on Form
S-1, Registration No. 33-43306).
4.2 Amended and Restated Bylaws of America Service Group Inc.
(incorporated herein by reference to Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996).
5.1 Opinion of King & Spalding regarding legality of shares being
registered.
23.1 Consent of Ernst & Young LLP
23.3 Consent of King & Spalding (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
</TABLE>
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information
set forth in the registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
4
<PAGE> 6
reports filed by the Registrant pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Act, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the
Act, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this 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.
(b) The undersigned Registrant hereby undertakes that, for
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 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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 therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant, 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 Act 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 Act and will be governed by the final adjudication of such
issue.
EXPERTS
The consolidated financial statements of America Service Group Inc.
incorporated by reference in the Annual Report (Form 10-K/A) for the year ended
December 31, 1998, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
5
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of 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 the 8th day of
October, 1999.
America Service Group Inc.
By: /s/ Michael Catalano
----------------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael Catalano and Jean L. Byassee and
each of them, as true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution for such person and in his name, place and
stead, in any and all capacities, to sign any and all 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
said attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully and to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and any of them, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and as of
the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Michael Catalano President, Chief Executive October 8, 1999
- ---------------------------------------
Michael Catalano Officer and Director
(Principal Executive Officer)
/s/ Bruce A. Teal Senior Vice President and
- --------------------------------------- Chief Financial Officer October 8, 1999
Bruce A. Teal (Principal Financial and
Accounting Officer)
/s/ William D. Eberle Director October 8, 1999
- ---------------------------------------
William D. Eberle
/s/ David A. Freeman Director October 8, 1999
- ---------------------------------------
David A. Freeman
</TABLE>
6
<PAGE> 8
<TABLE>
<S> <C> <C>
/s/ John W. Gildea Director October 8, 1999
- ---------------------------------------
John W. Gildea
/s/ Carol R. Goldberg Director October 8, 1999
- ---------------------------------------
Carol R. Goldberg
/s/ Richard M. Mastaler Director October 8, 1999
- ---------------------------------------
Richard M. Mastaler
/s/ Scott L. Mercy Director October 1, 1999
- ---------------------------------------
Scott L. Mercy
Director October ___, 1999
- ---------------------------------------
Richard D. Wright
/s/ Jeffrey L. McWaters Director October 1, 1999
- ---------------------------------------
Jeffrey L. McWaters
</TABLE>
7
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description Page
- ------- ----------- ----
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of America
Service Group Inc. (incorporated herein by reference to
Exhibit 3.1 to the Company's Registration Statement on Form
S-1, Registration No. 33-43306).
4.2 Amended and Restated Bylaws of America Service Group Inc.
(incorporated herein by reference to Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996).
5.1 Opinion of King & Spalding regarding legality of shares being
registered.
23.1 Consent of Ernst & Young LLP
23.3 Consent of King & Spalding (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
</TABLE>
<PAGE> 1
Exhibit 5.1
[Letterhead of King & Spalding]
404/572-4600 404/572-5100
October 8, 1999
America Service Group Inc.
105 Westpark Drive
Suite 300
Brentwood, Tennessee 37027
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for America Service Group Inc. (the "Company")
in connection with the preparation and filing of a registration statement on
Form S-8 (the "Registration Statement"), relating to the registration by the
Company under the Securities Act of 1933, as amended (the "Act"), of up to
786,000 shares of the Company's Common Stock, par value $.01 per share (the
"Common Stock"), to be issued by the Company from time to time pursuant to the
Stock Incentive Plan.
In connection with this opinion, we have considered such matters of law
and examined the originals or copies, certified or otherwise identified to our
satisfaction, of such documents and corporate and other records and have
obtained such certificates, letters, representations and information from the
officers, directors and employees of the Company and from others as we have
deemed necessary or appropriate to enable us to render the opinions expressed
herein.
Based upon and in reliance upon the foregoing, and subject to the
qualifications and assumptions set forth below, it is our opinion that, when (a)
the Registration Statement has become effective in accordance with the Act and
the rules and regulations thereunder and (b) the Common Stock has been duly
delivered against payment therefor or receipt by the Company of such lawful
consideration for which shares of the Common Stock to be issued by the Company
has occurred, then the Common Stock will be (i) duly authorized and (ii) legally
issued, fully paid and nonassessable.
Our opinion is limited by and subject to the following:
<PAGE> 2
America Service Group Inc.
October 8, 1999
Page 2
(a) In rendering our opinion we have assumed that, at the time of each
issuance and sale of the Common Stock, the Company will be a corporation validly
existing and in good standing under the laws of the State of Delaware.
(b) In our examination of all documents, certificates and records, we
have assumed without investigation the authenticity and completeness of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity and completeness of the
originals of all documents submitted to us as copies. We have also assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authority of all persons executing documents on behalf of the parties thereto
other than the Company, and the due authorization, execution and delivery of all
documents by the parties thereto other than the Company.
(c) Our opinion is based solely on and limited to the General
Corporation Law of the State of Delaware and federal laws of the United States
of America. We express no opinion as to the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ King & Spalding
<PAGE> 1
Exhibit 23.1
Consent of Ernst & Young LLP Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8 No.____) pertaining to the 1999 Incentive
Stock Plan of America Service Group Inc. and to the incorporation by reference
therein of our reports (a) dated February 12, 1999, except for the last
paragraph of Note 3 and Note 19, as to which the date is July 22, 1999, with
respect to the consolidated financial statements and schedule of America
Service Group Inc. included in its Annual Report (Form 10-K/A) for the year
ended December 31, 1998 and (b) dated March 20, 1999, except for the fifth
paragraph of Note 2, as to which the date is June 30, 1999, with respect to the
consolidated financial statements of EMSA Government Services, Inc. included in
the Form 8-K/A for the year ended December 31, 1998, both filed with the
Securities and Exchange Commission.
Nashville, Tennessee
October 4, 1999
