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As filed with the Securities and Exchange Commission on December 3, 1997
Registration No. 333-______________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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AMPACE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 36-3988574
(State of Incorporation) (I.R.S. Employer Identification No.)
201 Perimeter Park, Suite A
Knoxville, Tennessee 37922
(Address of principal executive offices)
NON-EMPLOYEE DIRECTORS AND ADVISORS PLAN
(Full Title of the Plan)
BRUCE W. JONES
Chairman and Chief Financial Officer
Ampace Corporation
130 Mabry Hood Road, Suite 220
Knoxville, Tennessee 37922
(423) 691-5799
(Name, address and telephone number of agent for service)
(with copies to:)
MATTHEW S. HEITER
Baker, Donelson, Bearman & Caldwell
165 Madison Avenue, 2000 First Tennessee Building
Memphis, Tennessee 38103
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock 150,000 shares (1) $1.3125 (2) $196,875 (2) $58.08 (1)(2)
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(1) This figure represents the number of shares of Common Stock registered
hereby for purchase by certain persons under the Non-Employee Directors
and Advisors Plan (the "Plan"). There are also registered an
undetermined number of additional shares of Common Stock that may
become available for purchase in accordance with the provisions of the
Plan in the event of certain changes in the outstanding shares of
Common Stock of the Company, including a stock dividend or stock split.
(2) Estimated solely for the purpose of determining the amount of the
registration fee. Such estimate has been calculated in accordance with
Rule 457(h) under the Securities Act of 1933, as amended, and are based
upon the average high and low sales prices of the Registrant's Common
Stock as reported on the National Market of The Nasdaq Stock Market on
December 2, 1997
Pursuant to Rule 462 of the 1933 Act, the Registration Statement on
Form S-8 shall be effective upon filing with the Commission.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission are
incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-KSB for the year ended December
31, 1996.
2. The Registrant's Quarterly Reports on Form 10-QSB for the quarters ended
March 31, 1997 and June 30, 1997.
3. The description of the Registrant's Common Stock contained in its
Registration Statement on Form 8-A filed by the Registrant to register the
Common Stock under the Exchange Act, including all amendments and reports filed
for the purpose of updating such description prior to the termination of the
offering of the Common Stock offered hereby.
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part thereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
No response is required to this item.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
No response is required to this item.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is incorporated under the laws of the State of Delaware.
Under the Delaware General Corporation Law including, without limitation,
Section 145, a Delaware corporation may indemnify any person who is, or may be a
party to any 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 acting in the corporation's behalf
as a director, officer, or agent, against expenses (including attorneys' fees),
judgments, fines and amount paid in settlement actually and reasonably incurred
by such person in connection with such proceeding, provided such person acted in
good faith and in a manner the person reasonably believed to be in or not
opposed to the corporation's best interests and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that the person's
conduct was illegal. A Delaware corporation may indemnify any person described
above who is, or may be a party to any proceeding by or in the right of the
corporation against expenses if the person acted in good faith and with
reasonable belief that such person's actions were not opposed to the
corporation's best interests; provided that no indemnification may be made if
the person is adjudged liable to the corporation, unless a court determines that
such indemnification is permissible. Where an officer or director is successful
on the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director has actually and reasonably incurred.
The Registrant's Certificate of Incorporation and Article 6.1 of the
Registrant's Bylaws provide for the indemnification of directors and officers of
the Company to the fullest extent permitted by the laws of the State of
Delaware, as now in effect and as hereafter amended; provided that such future
amendments grant broader indemnification rights than the prior law. Article 6.1
of the Registrant's Bylaws provides that the right to
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indemnification is a contract right and includes the right to be paid by the
Registrant the expenses incurred in defending any such proceeding in advance of
its final disposition. The Registrant's Bylaws provide that 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 indemnification
of directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
No response is required to this item.
ITEM 8. EXHIBITS
Exhibit Number Description
5 Opinion and Consent of Baker, Donelson, Bearman & Caldwell
10 Amendment to Non-Employee Directors And Advisors Plan Adopted on August
21, 1997(1)
23(a) Consent of Baker, Donelson, Bearman & Caldwell (contained in Exhibit 5)
23(b) Consent of KPMG Peat Marwick LLP
24 Power of Attorney (Included on signature page)
(1) Non-Employee Directors And Advisors Plan as adopted on
February 23, 1995 is attached as Exhibit 10.5(a) to the
Registrant's Form SB-2 Registration Statement No. 33-87656C as
filed with the SEC on December 22, 1994, and is hereby
incorporated by reference.
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 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "1933 Act"), each such posteffective amendment 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.
(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.
(b) The undersigned registrant hereby undertakes that, for the purposes
of determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Act) 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
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bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, 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 1933 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 1933 Act 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
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 Knoxville, State of Tennessee, on the 22d day of
October, 1997.
AMPACE CORPORATION
By: /s/ Bruce W. Jones
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Bruce W. Jones, Chairman &
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Bruce W. Jones his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him 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
Securities and Exchange 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 and necessary fully to all intents and purposes as
he might or could do in person thereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitutes or
substitute, 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 below by the following persons in the
capacities and on the date indicated.
NAME TITLE DATE
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/s/ Bruce W. Jones Chairman of the Board, October 22, 1997
- --------------------- Chief Financial Officer
Bruce W. Jones and Director
/s/ Jay N. Taylor Chief Executive Officer, October 22, 1997
- --------------------- President and Director
Jay N. Taylor
/s/ David C. Freeman Executive Vice President October 22, 1997
- --------------------- and Director
David C. Freeman
/s/ Douglas M. Harper Director October 22, 1997
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Douglas M. Harper
/s/ David A. Lyman Director October 22, 1997
- ---------------------
David A. Lyman
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EXHIBIT 5
December 3, 1997
Ampace Corporation
130 Mabry Hood Road, Suite 220
Knoxville, Tennessee 37922
RE: Non-Employee Directors And Advisors Plan
Gentlemen:
We have acted as securities counsel for Ampace Corporation, a Delaware
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8 (the "Registration Statement"), pursuant to the Securities
Act of 1933, as amended, relating to the Company's Non-Employee Directors And
Advisors Plan (the "Plan"). This opinion is being furnished in response to Item
601 of Regulation S-K and the instructions to Form S-8.
We are familiar with the proceedings to date with respect to the
proposed offering and have examined such records, documents and matters of law
and satisfied ourselves as to such matters of fact as we have considered
relevant for purposes of this opinion.
On the basis of the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and existing under the
laws of the State of Delaware.
2. The Plan has been duly and validly authorized and adopted, and the
shares of Common Stock of the Company (the "Shares") that may be issued and sold
from time to time in accordance with the Plan have been duly authorized for
issuance and will, when issued, sold and paid for in accordance with the Plan,
be validly issued, fully paid and non-assessable.
The foregoing opinion is limited to the federal laws of the United
States and the laws of the State of Tennessee, and we are expressing no opinion
as to the effect of the laws of any other jurisdiction.
In rendering the foregoing opinion, we have relied to the extent we
deem such reliance appropriate as to certain matters on statements,
representations and other information obtained from public officials, officers
of the Company and other sources believed by us to be responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and to the reference to us in the Prospectus that is a
part of the Registration Statement. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
BAKER, DONELSON, BEARMAN & CALDWELL,
a Professional Corporation
By:/s/ Matthew S. Heiter
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Matthew S. Heiter, a Shareholder
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EXHIBIT 10
AMENDMENT NO. 1
TO AMPACE CORPORATION NON-EMPLOYEE DIRECTORS
AND ADVISORS PLAN
The Ampace Corporation Non-Employee Directors and Advisors Plan (the
"Plan") is hereby amended as follows:
I. Section 2 of the Plan is amended further by deleting in the
last sentence of said section the words "sixty thousand (60,000)" and inserting
in lieu thereof "one hundred fifty thousand (150,000)."
II. Section 3 of the Plan is amended by deleting the phrase "one
hundred twenty-five (125%) percent" in the first sentence of said section and
inserting in lieu thereof "one hundred (100%) percent".
III. Section 4 of the Plan is amended by deleting the words "thirty
(30) days" in the second sentence of said section and inserting in lieu thereof
"twelve (12) months".
IV. Section 6 of the Plan is amended by deleting the text of said
section in its entirety and inserting the following in lieu thereof:
The Board may amend the Plan from time to time in such
respects as the Board may deem advisable, provided that in no
event shall any amendment to the Plan adversely affect the
rights of any eligible director or advisor with respect to (a)
any Option then in effect or (b) any shares of Common Stock
previously purchased pursuant to the exercise of an Option.
V. Except as otherwise amended herein, all other terms,
conditions and provisions of the Plan shall continue to be in full force and
effect.
VI. This Amendment has been approved by the Board of Directors of
the Company as of August 21, 1997.
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EXHIBIT 23(B)
Accountants' Consent
The Board of Directors
Ampace Corporation:
We consent to the use of our report incorporated herein by reference.
Little Rock, Arkansas /s/KPMG Peat Marwick LLP
November 20, 1997
