As filed with the Securities and Exchange Commission on October 28, 1998
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
QMS, INC.
________________________________________________________________________________
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 63-0737870
________________________________________________________________________________
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
ONE MAGNUM PASS, MOBILE, ALABAMA 36618
________________________________________________________________________________
(Address of Principal Executive Offices) (Zip Code)
QMS, INC. 1997 STOCK INCENTIVE PLAN
________________________________________________________________________________
(Full Title of the Plan)
James A. Wallace
QMS, Inc.
One Magnum Pass, Mobile, Alabama 36618
________________________________________________________________________________
(Name and Address of Agent for Service)
(334) 633-4300
________________________________________________________________________________
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
R. Preston Bolt, Esq.
Hand Arendall, L.L.C.
3000 AmSouth Bank Building
Mobile, Alabama 36602
CALCULATION OF REGISTRATION FEE
________________________________________________________________________________
Title of Proposed Proposed
Securities Maximum Maximum Amount of
to be Amount Offering Price Aggregate Offering Registration
Registered Registered(1) Per Share(2) Price (3) Fee
______________________________________________________________
Common Stock, 1,500,000 $3.4375 $5,156,250 $1,521.09
$0.01 par value shares
________________________________________________________________________________
(1) Representing shares of the Registrant's Common Stock, $0.01 par value (the
"Common Stock") to be issued and sold by the Registrant in connection with
the exercise of options granted under the Registrant's 1997 Stock Incentive
Plan (the "Plan"). This Registration Statement also covers such
indeterminable number of additional shares as may become issuable to
prevent dilution in the event of stock splits, stock dividends or similar
transactions pursuant to the terms of the Plan.
(2) Based on the average of the high and low prices of the Registrant's Common
Stock as reported on the New York Stock Exchange on October 26, 1998.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 (h)(1) under the Securities Act of 1933, as amended.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of the
instructions to the Registration Statement on Form S-8 will be sent or given to
employees of the Registrant selected to participate in the Plan as required by
Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
(the "Commission") (Commission File No. 1-9348, formerly 0-11394) are
incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended October 3, 1997;
(2) The Registrant's Quarterly Reports on Form 10-Q for the
periods ended January 2, 1998, April 3, 1998 and July 3, 1998;
and
(3) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed pursuant to
Section 12 of the Securities Exchange Act of 1934 (the "Exchange
Act").
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-
effective amendment indicating that all securities offered hereby have been sold
or that deregisters all such securities then remaining unsold shall be deemed to
be incorporated by reference in the registration statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable to this Registration Statement.
Item 5. Interests of Named Experts and Counsel.
An opinion on the legality of the shares which are the subject of this
Registration Statement is given by Hand Arendall, L.L.C., 3000 AmSouth Bank
Building, 107 St. Francis Street, Mobile, Alabama 36602. Jack Edwards, a member
of the firm, is a director of the Registrant. As of August 3, 1998, attorneys
in the law firm of Hand Arendall, L.L.C. owned an aggregate of 11,788 shares of
the Registrant's Common Stock, and Mr. Edwards holds options to purchase 15,000
shares of the Registrant's Common Stock pursuant to the Plan.
Item 6. Indemnification of Directors and Officers.
The Registrant generally is authorized by the General Corporation Law of
Delaware (the "DGCL") and its Certificate of Incorporation and Bylaws to
indemnify the directors, officers, employees and agents of the Registrant
against liabilities and expenses incurred by them in such capacities and in
certain other specified capacities.
The Registrant maintains directors' and officers' liability and corporation
reimbursement insurance policies covering claims made against its directors and
officers for certain wrongful acts done in such capacities and providing
reimbursement to the Registrant for its indemnification of its directors and
officers in respect of such claims.
The Registrant has entered into indemnification agreements
("Indemnification Agreements") with each of its directors. The Indemnification
Agreements provide that an indemnitee serving as a director or officer of the
Registrant or serving at the request of the Registrant as a director or officer
of the Registrant or serving at the request of the Registrant as a director,
officer, employee or agent of another entity will be indemnified to the full
extent permitted by the DGCL and that expenses incurred in defending or
investigating such actions shall be paid by the Registrant in advance of the
final disposition of such action, if the Indemnitee shall undertake to repay
such amount in the event that it is ultimately determined that he is not
entitled to indemnification. Under the Indemnification Agreements, no
indemnification and no advance of expenses shall be made by the Registrant if
the determination is reasonably and promptly made that the indemnitee acted in
bad faith and in a manner that such person did not believe to be in or not
opposed to the best interest of the Registrant or, with respect to any criminal
proceeding, that such person believed or had reasonable cause to believe that
his conduct was unlawful. No advance shall be made in instances where the
Registrant's Board of Directors or independent legal counsel reasonably
determines that the indemnitee deliberately breached his duty to the Registrant
or its stockholders. The Indemnification Agreements also set forth certain
procedures to be followed should an indemnification situation arise. The
Indemnification Agreements do not provide for indemnity where the indemnitee has
other indemnification or insurance coverage for the subject claim, or if, with
respect to the matters giving rise to the claim, he (i) received an improper
personal benefit, (ii) violated Section 16(b) of the Securities Exchange Act of
1934 or (iii) committed certain acts of dishonesty.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the Registrant has been
informed 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.
Item 8. Exhibits.
See Exhibit Index.
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;
(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;
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the
form of a prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
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 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 (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 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 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.
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 Mobile, Alabama on the 28th day of October, 1998.
QMS, Inc.
By: /s/ Edward E. Lucente
Edward E. Lucente
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Edward E. Lucente as 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 (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 Securities and Exchange Commission, granting
unto said attorney-in-fact and agent 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 to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his 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 below by the following persons in the
capacities indicated on the date indicated.
Signature Title Date
/s/ Edward E. Lucente October 28, 1998
Edward E. Lucente President and Director
(Principal Executive Officer)
/s/ James A. Wallace October 28, 1998
James A. Wallace Chief Financial Officer and
Director
/s/ James L. Busby October 28, 1998
James L. Busby Director
/s/ Lucius E. Burch, III October 28, 1998
Lucius E. Burch, III Director
/s/ F. Rigdon Currie October 28, 1998
F. Rigdon Currie Director
/s/ Charles D. Daley October 28, 1998
Charles D. Daley Director
Signature Title Date
/s/ Michael C. Dow October 28, 1998
Michael C. Dow Director
/s/ Jack Edwards October 28, 1998
Jack Edwards Director
/s/ S. Felton Mitchell, Jr. October 28, 1998
S. Felton Mitchell, Jr. Director
EXHIBIT INDEX
Exhibit Page
Number Description Number
4(a) Articles 4, 9 and 10 of the Registrant's Restated
Certificate of Incorporation, as amended as of
February 17, 1987(1) and Certificate of Amendment
thereto filed with the Secretary of State of
Delaware as of January 31, 1991.(2)
4(b) Articles II, VI and VII, Bylaws of Registrant.(3)
4(c) Rights Agreement dated November 20, 1988.(4)
5 Opinion of Hand Arendall, L.L.C. with respect to
the securities being registered.
23(a) Consent of Hand Arendall, L.L.C. (included in Exhibit 5).
23(b) Consent of Deloitte & Touche LLP.
(1) Incorporated herein by reference to Exhibit 3(a) in Registrant's Annual
Report on Form 10-K for fiscal year ended October 2, 1987 (Commission File No.
1-9348).
(2) Incorporated herein by reference to exhibit of same number in Registrant's
Annual Report on Form 10-K for fiscal year ended September 27, 1991 (Commission
File No. 1-9348).
(3) Incorporated hereby by reference to Exhibit 3(b) in Registrant's Annual
Report on Form 10-K for fiscal year ended October 2, 1987 (Commission File No.
1-9348).
(4) Incorporated herein by reference to Exhibit 4(b) in Registrant's Annual
Report on Form 10-K for fiscal year ended September 30, 1988 (Commission File
No. 1-9348).
EXHIBIT 5
HAND ARENDALL LETTERHEAD
October 28, 1998
QMS, Inc.
One Magnum Pass
Mobile, Alabama 36618
Re: Registration Statement on Form S-8
1997 Stock Incentive Plan
Ladies and Gentlemen:
We have served as counsel for QMS, Inc., a Delaware corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended, pursuant to a Registration Statement on Form S-8 (the
"Registration Statement") of an aggregate of 1,500,000 shares (the "Shares") of
common stock, $0.01 par value of the Company, to be offered and sold by the
Company pursuant to the Company's 1997 Stock Incentive Plan (the "Plan").
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the incorporation of the
Company and the adoption of the Plan as we have deemed necessary and advisable.
In all such examinations, we have assumed the genuineness of all signatures
on all originals and copies of documents we have examined, the authenticity of
all documents submitted to us as originals and the conformity to original
documents of all certified, conformed or photostatic copies. As to questions of
fact material and relevant to our opinion, we have relied upon certificates or
representations of Company officials and of appropriate state, local and federal
officials.
This opinion is limited to the Delaware General Corporation Law.
Based upon and subject to the foregoing and having regard for such legal
considerations as we have deemed relevant, it is our opinion that:
1. The Shares have been duly authorized; and
2. Upon the issuance and delivery of the Shares upon receipt of lawful
consideration therefor pursuant to the Plan, such Shares will be validly issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Hand Arendall, L.L.C.
HAND ARENDALL, L.L.C.
Exhibit 23(b)
We consent to the incorporation by reference in this Registration
Statement of QMS, Inc. on Form S-8 of our reports dated November 7, 1997
(December 8, 1997 as to Note 19b) included in the Annual Report on Form 10-K of
QMS, Inc. for the year ended October 3, 1997.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Birmingham, Alabama
October 28, 1998