As filed with the Securities and Exchange Commission
on July 26, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ALATENN RESOURCES, INC.
(Exact name of registrant as specified in its charter)
Alabama 63-0821819
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
P. O. Box 918
Florence, Alabama 35631
(205) 383-3631
(Address, including zip code, and telephone number,
including
area code, of registrant's principal executive
offices)
AlaTenn Resources, Inc. 1994 Key Employee
Stock Incentive Plan
(Full Title of the Plan)
Jerry A. Howard
P. O. Box 918
Florence, Alabama 35631
(205) 383-3631
(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
Copies to:
B. G. Minisman, Jr., Esq.
BERKOWITZ, LEFKOVITS, ISOM & KUSHNER
A Professional Corporation
1600 SouthTrust Tower
Birmingham, Alabama 35203
(205) 328-0480
CALCULATION OF REGISTRATION FEE
Title of securities to be registered
Common Shares, par value
$.10 per
share.................
Amount to be registered 105,000 shares <1>
Proposed maximum offering price per share <2>
<2>
Proposed maximum aggregate offering price <2>
$1,935,069
Amount of registration fee
$668
<1>
Plus such indeterminate number of additional shares of common
stock as may be issued as the result of adjustments required by
certain antidilution provisions, in accordance with Rule 416(a) under
the Securities Act of 1933, as amended (the "Securities Act").
<2>
Estimated solely for purposes of determining the registration
fee pursuant to Rule 457 under the Securities Act. With
respect to 32,800 common shares which are the subject of outstanding
options, the registration fee has been calculated on the basis of the
price at which such options may be exercised, which is $17.50 per
share. With respect to 44,100 common shares which are the subject
of outstanding options, the registration fee has been calculated on
the basis of the price at which such options may be exercised,
which is $18.00 per share. With respect to 1,000 common shares
which have been issued as restricted shares and with respect
to 27,100 common shares which are available for future
options, the registration fee has been calculated on the basis
of the average of the high and low prices reported on July 21, 1995
on Nasdaq, which price was $20.19 per share.
PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
The following documents filed by AlaTenn
Resources, Inc. (the
"Registrant")
with the Securities and Exchange Commission (the
"Commission") are
incorporated
in this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-K
for the year
ended December
31, 1994;
(b) The Registrant's Quarterly Report on Form 10-Q
for the
quarter ended
March 31, 1995;
(c) All other reports filed pursuant to Section
13(a) or
15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act")
for periods
since December
31, 1994; and
(d) The description of the Common Stock contained
in the
Registrant's
Registration Statement on Form 8-A filed with the
Commission under
the Exchange
Act on February 15, 1990.
All documents filed by the Registrant pursuant to
Sections
13, 14 and 15(d)
of the Exchange Act subsequent to the date of this
Registration
Statement, and
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
in this
Registration Statement and to be a part thereof from
the date of
filing of such
documents.
Any statement made in a document incorporated or
deemed to be
incorporated
by reference herein shall be deemed to be modified or
superseded
for purposes of
this Registration Statement to the extent that a
statement
contained herein or
in any other subsequently filed document which is also
incorporated or deemed to
be incorporated by reference herein 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.
TEM 4. DESCRIPTION OF SECURITIES
(Not Applicable)
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
(Not Applicable)
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
(a) Ala. Code SS 10-2B-8.51 provides that a
corporation may
indemnify
directors under certain conditions. However,
indemnification is
only permitted
to the extent such director (i) acted in good faith;
(ii)
reasonably believed
that, in the case of conduct in his official capacity
with the
corporation, such
conduct was in its best interests, and in all other
cases, such
conduct was at
least not opposed to its best interests; and (iii) in
the case of
any criminal
proceeding, he had no reasonable cause to believe his
conduct was
unlawful.
(b) Article Eight of the Bylaws of the Registrant,
as
amended, provides
as follows with respect to indemnification of the
Registrant's
directors and
officers:
ARTICLE EIGHT:
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES OR AGENTS;
LIABILITY INSURANCE
8.01. Action Against Party Because of
Corporate Position.
The
Corporation shall indemnify any person who was, or
is, a
party, or
is threatened to be made a party, to any
threatened, pending
or
completed claim, action or proceeding, whether
civil,
criminal,
administrative or investigative, including
appeals, other
than an
action by or in the right of the Corporation, by
reason of
the fact
that he 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, partner, 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 him
in connection with such action or proceeding if he
acted in
good
faith and in a matter he 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
his conduct was unlawful. The termination of any
action 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 he 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
his
conduct was unlawful.
8.02. Action By or in the Right of the
Corporation. The
Corporation
shall indemnify any person who was, or is, a
party, or is
threatened
to be made party, to any threatened, pending or
completed
claim or
action by, or in the right of, the Corporation to
procure a
judgment
in its favor by reason of the fact that he 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,
partner,
employee or agent of another corporation,
partnership, joint
venture, trust or other enterprise against
expenses,
including
attorneys' fees, actually and reasonably incurred
by him in
connection with the defense or settlement of such
action if
he acted
in good faith and in a manner he reasonably
believed to be
in, or
not opposed to, the best interests of the
Corporation, 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
for negligence or misconduct in the performance of
his duty
to the
Corporation unless, and only to the extent that
the court in
which
such action was brought shall determine upon
application
that,
despite the adjudication of liability but in view
of all
circumstances of the case, such person is fairly
and
reasonably
entitled to indemnity for such expenses which such
court
shall deem
proper.
8.03. Reimbursement if Successful. To the
extent that a
director,
officer, employee or agent of the Corporation has
been
successful on
the merits or otherwise in defense of any action
or
proceeding
referred to in Sections 8.01 and 8.02 above or in
defense of
any
claim, issue or matter therein, he shall be
indemnified
against
expenses, including attorneys' fees, actually and
reasonably
incurred by him in connection therewith,
notwithstanding that
he has
not been successful on any other claim, issue or
matter in
any such
action or proceeding.
8.04. Authorization. Any indemnification
under Sections
8.01 or
8.02 above, 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
director, officer,
employee or agent is proper in the circumstances
because he
has met
the applicable standard of conduct set forth in
Sections 8.01
and
8.02 above. Such determination shall be made:
(a) By the Board of Directors by a majority vote
of a quorum
consisting of directors who were not parties to,
or who have
been
wholly successful on the merits or otherwise with
respect to,
such
claim, action or proceeding;
(b) If such a quorum is not obtainable, or even
if
obtainable a
quorum of disinterested directors so directs, by
independent
legal
counsel in a written opinion; or
(c) By the shareholders.
8.05. Advance Reimbursement. Expenses,
including
attorneys' fees,
incurred in defending a civil or criminal claim,
action or
proceeding may be paid by the Corporation in
advance of the
final
disposition of such claim, action or proceeding as
authorized
in the
manner provided in Section 8.04 above upon receipt
of an
undertaking
by or on behalf of the director, officer, employee
or agent
to repay
such amount if, and to the extent that, it shall
ultimately
be
determined that he is not entitled to be
indemnified by the
Corporation as authorized in this Article.
8.06. Indemnification Not Exclusive. The
indemnification
authorized
by this Article shall not be deemed exclusive of,
and shall
be in
addition to, any other rights to which those
indemnified may
be
entitled under any statute, rule of law, provision
of the
Articles
of Incorporation, these Bylaws, agreement or vote
of
shareholders or
disinterested directors, or otherwise, both as to
action in
his
official capacity and as to action in another
capacity while
holding
such office and shall 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.
Where such other provision or provisions provide
broader
rights of
indemnification than these Bylaws, such other
provision or
provisions shall control.
8.07. Insurance. The 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,
partner,
employee or agent of another corporation,
partnership, joint
venture, trust or other enterprise against any
liability
asserted
against him and incurred by him in any such
capacity or
arising out
of his status as such, whether or not the
Corporation would
have the
power to indemnify him against such liability
under the
provisions
of this Article.
8.08. Subsidiaries. All references in this
Article to a
director,
officer, employee or agent of the Corporation
shall be deemed
to
include any director, officer, employee, or agent
of
corporations
which are majority owned subsidiaries of this
Corporation.
8.09. Invalidity. The invalidity or
unenforceability of
any
provision hereof shall not in any way affect the
remaining
portions
hereof, which shall continue in full force and
effect.
(c) Ala. Code SS 10-2B-8.57 empowers the Registrant
to
purchase and maintain
insurance on behalf of directors and officers of the
Registrant,
whether or not
the Registrant would have the power to indemnify such
person
against the insured
liability under the provisions of Section 10-2B-8.51
described
above. The
purchase of such insurance is also permitted by Article
Eight of
the Registrant's
Bylaws, as set forth above. Under the terms of a
directors and
officers
liability policy purchased by the Registrant, the
directors and
officers of the
Registrant are insured against certain liabilities
incurred in
connection with
the performance of their duties. The foregoing is
subject to the
detailed
provisions of such policy.
(d) The AlaTenn Resources, Inc. 1994 Key Employee
Stock
Incentive Plan (the
"Stock Incentive Plan") provides that no member of the
Board of
Directors of the
Registrant or the Committee appointed by the Board of
Directors in
accordance
with Section 3(a) of the Stock Incentive Plan (the
"Committee"),
nor any officer
or employee of the Registrant or any subsidiary acting
on behalf
of the Board of
Directors or the Committee, shall be personally liable
for any
action,
determination, or interpretation taken or made in good
faith with
respect to the
Stock Incentive Plan, and all members of the Board of
Directors or
the Committee
and each and any officer or employee of the Registrant
or any
subsidiary acting
on their behalf shall, to the extent permitted by law,
be fully
indemnified and
held harmless by the Registrant in respect of any such
action,
determination or
interpretation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
(Not Applicable)
ITEM 8. EXHIBITS
The following exhibits are included herewith or
incorporated
herein by
reference as indicated. The number of each exhibit
corresponds to
the number
assigned to it in Item 601 of Regulation S-K.
Exhibit Description
4(a) Articles of Incorporation of
the Registrant, as amended (incorporated
herein by reference to Exhibit 3a to
the Annual Report on Form
10-K of the Registrant, dated
March 27, 1987 {SEC File No.0-10763})<F1>
4(b) Rights Agreement, dated as of
February 1, 1990, between the Registrant and
American Stock Transfer & Trust Company Incorporated
herein by reference to Exhibit 1 to the
Registration Statement on Form 8-A of the
Registrant, dated February 15, 1990) <F1>
4(c) AlaTenn Resources, Inc. 1994
Key Employee Stock
Incentive Plan (incorporated
herein by reference
to Appendix A to the
Definitive Proxy Statement
of the Registrant dated
March 31, 1995 {SEC File
No. 0-10763}) <F1> <F3>
4(d) Form of Incentive Stock Option
Agreement <F2> <F3>
5 Opinion of Berkowitz,Lefkovits,
Isom & Kushner,
A Professional Corporation <F2>
23(a) Consent of Arthur Andersen LLP <F2>
23(b) Consent of Berkowitz,
Lefkovits, Isom & Kushner,
A Professional Corporation
(included in Exhibit 5) <F2>
<FN>
<F1> Incorporated herein by reference as indicated.
<F2> Filed herewith.
<F3> Management contract or compensatory plan or
arrangement.
</FN>
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) ofthe Securities Act of 1933;
(ii) To reflect in the Prospectus any
facts or
events arising after the effective date of this
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
this
Registration Statement;
and
(iii) To include any material
information with
respect to the plan of distribution not previously
disclosed in
this Registration Statement or any material change to
such
information in this Registration Statement;
provided, however, that paragraphs (i) and (ii) above
shall not
apply if the information required to be included in a
post-effective amendment by such paragraphs is
contained in
periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of
1934 that
are incorporated by reference in this Registration
Statement;
(2) That, for the purpose of determining any
liability
under the Securities Act of 1933, each such
post-effective
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
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 this
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 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
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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933,
as amended, 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 Florence, State of Alabama,
on July 26,
1995.
ALATENN RESOURCES,INC.
By: /s/ Jerry A. Howard
Jerry A. Howard
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act
of 1933,
as amended,
this Registration Statement on Form S-8 has been signed
below by
the following
persons, in the capacities and on the dates indicated.
Name Title Date
/s/ Jerry A. Howard Chairman of the Board, July 26,1995
Jerry A. Howard President, Chief
Executive Officer
and Director
(Principal executive officer)
/s/ George G. Petty Vice President - Finance, July 26, 1995
George G. Petty Chief Financial Officer
and Secretary-Treasurer
(Principal financial and
accounting officer)
/s/ Emile A. Battat Director July 26, 1995
Emile A. Battat
/s/ Richard O. Jacobson Director July 26, 1995
Richard O. Jacobson
/s/ Jerome J. McGrath Director July 26, 1995
Jerome J. McGrath
/s/ Hugh J. Morgan, Jr. Director July 26, 1995
Hugh J. Morgan, Jr.
/s/ J. Kenneth Smith Director July 26, 1995
J. Kenneth Smith
/s/ Roger F. Stebbing Director July 26, 1995
Roger F. Stebbing
/s/ John P. Stupp, Jr. Director July 26, 1995
John P. Stupp, Jr.
EXHIBIT INDEX
Exhibit Description Page
4(d) Form of Incentive Stock
Option Agreement 12
5 Opinion of Berkowitz,
Lefkovits, Isom & Kushner,
A Professional Corporation 17
23(a) Consent of Arthur Andersen LLP 19
23(b) Consent of Berkowitz,
Lefkovits,Isom & Kushner,
A Professional Corporation
(included in Exhibit 5)