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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 28, 2001
REGISTRATION STATEMENT NO. 333-
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PET QUARTERS, INC.
(Exact name of registrant as specified in its charter)
ARKANSAS 62-169-8524
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
720 FRONT STREET
LONOKE, ARKANSAS 72086
(Address of Principal Executive Offices)
PET QUARTERS, INC.
MANAGEMENT INCENTIVE PLAN
(Full Title of Plan)
STEVEN DEMPSEY
CHIEF EXECUTIVE OFFICER
PET QUARTERS, INC.
720 FRONT STREET
LONOKE, ARKANSAS 72086
(Name and address of agent for service)
501-676-9222
(Telephone number, including area code, of agent for service)
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Copy of all communications to:
JOHN R. TISDALE
WRIGHT, LINDSEY & JENNINGS LLP
200 WEST CAPITOL AVENUE, SUITE 2200
LITTLE ROCK, ARKANSAS 72201
(501) 371-0808
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED SHARE OFFERING PRICE REGISTRATION FEE
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Common Stock, $.001 par 3,900,000 Shares $0.26(3) $1,014,000(3) $253.50(3)
value(1)
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement also covers an indeterminate amount of interest to be offered or sold
pursuant to the employee benefit plan described herein.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) and (h) and based on the average of the high and low prices of a
share of common stock reported on the OTCBB on June 22, 2000.
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PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Pet Quarters, Inc. ("Registrant" or "Company") hereby incorporates the
following documents by reference into this Registration Statement and makes them
a part hereof:
(a) The Company's Prospectus filed pursuant to Rule 424(b)(3) on June
8, 2001, which includes audited financial statements of the Company for
the fiscal year ended June 30, 2000;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year
covered by the financial statements referred to in (a) above; and
(c) The description of the Company's common stock, $.001 par value,
contained in Amendment No. 5 to Form 10-SB, filed March 9, 2000,
including any amendment or report filed for the purpose of updating
such description.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained or 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 part hereof.
All reports and other documents filed by the Company subsequent to the
date of this registration statement 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 securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference into this registration statement and to be a
part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of common stock offered hereby will be
passed upon for Pet Quarters by Wright, Lindsey & Jennings LLP, Little Rock,
Arkansas. As of the date hereof, partners of that firm beneficially owned
approximately 49,655 shares of the Company's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article IX of our Articles of Incorporation provides that, under
specified circumstances, PetQuarters shall indemnify its directors, officers,
employees, or agents against expenses (including attorney's fees), judgments,
fines, and amounts paid in settlements actually and reasonably incurred by them
in connection with any action, suit, or proceeding brought by third parties by
reason of the fact that they were or are directors, officers, employees, or
agents if they acted in good faith and in a manner they 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 reason to believe their conduct was
unlawful. In a derivative action (i.e., one by or in the right of the
corporation), indemnification may be made only for expenses actually
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and reasonably incurred by directors, officers, employees or agents in
connection with the defense or settlement of an action or suit, and only with
respect to a matter as to which they shall have acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation, except that no indemnification shall be made if such person
shall have been adjudged liable to the corporation, unless and only to the
extent that the court in which the action or suit was brought shall determine
upon application that the defendant directors, officers, employees, or agents
are fairly and reasonably entitled to indemnity for such expenses despite such
adjudication of liability.
Article VII of our Articles of Incorporation provides that the
Company's directors will not be personally liable to PetQuarters or its
stockholders for monetary damages resulting from breaches of their fiduciary
duty as directors except (a) for any breach of the duty of loyalty to
PetQuarters or our stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) under
Arkansas Code Annotated Section 4-27-833, which makes directors liable for
unlawful dividends or unlawful stock repurchases or redemptions, (d) for
transactions from which directors derive improper personal benefit, or (e) for
liability to any third party other than PetQuarters or its stockholders based
upon an act, omission, transaction, or breach of duty.
Our directors and officers are also covered by insurance policies
indemnifying them against certain civil liabilities, including liabilities under
the federal securities laws, which might be incurred by them in such capacity.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this Registration
Statement:
Exhibit No. Exhibit
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4.1 - Articles of Incorporation, as amended, of Pet Quarters, Inc.(1)
4.2 - Articles of Amendment of Pet Quarters, Inc., dated May 8, 2000, designating the Series
A Convertible Preferred Stock(2)
4.3 - Bylaws of Pet Quarters, Inc.(1)
4.4 - Pet Quarters, Inc. Management Incentive Plan(3)
4.5 - Form of Stock Option Agreement
5.1 - Opinion of Wright, Lindsey & Jennings LLP
23.1 - Consent of Ernst & Young LLP.
23.2 - Consent of Crouch, Bierwolf & Chisholm.
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23.3 - Consent of Kronick Kalada Berdy & Co., P.C.
23.4 - Consent of Clumeck, Stern, Phillips & Schenkelberg.
23.5 - Consent of Wright, Lindsey & Jennings LLP. (included in Exhibit 5.1)
24.1 - Power of Attorney. (included on signature page hereto)
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(1) Incorporated by reference from the registrant's Form 10SB-12g, filed on
December 10, 1999.
(2) Incorporated by reference from the registrant's Form S-1, filed on June 8,
2000.
(3) Incorporated by reference from the registrant's Form 10-Q filed on November
14, 2000.
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. 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 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; 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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.
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(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 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 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 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.
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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 Lonoke, State of Arkansas, on June 25, 2001.
PET QUARTERS, INC.
By: /s/ Steven Dempsey
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Steven Dempsey
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Steven Dempsey and Gregg Rollins, and each or either one of them, 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 on Form S-8 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 or necessary to be done to effectuate the same.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by or on behalf the following persons in
the capacities and on the date indicated.
June 25, 2001 By: /s/ Steven Dempsey
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Steven Dempsey, Chief Executive Officer and
Director
June 25, 2001 By: /s/ Gregg Rollins
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Gregg Rollins, Chief Financial Officer
June 25, 2001 By: /s/ Niloo Howe
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Niloo Howe, Director
June 25, 2001 By: /s/ Robert M. Brown III
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Robert M. Brown III, Director
June 25, 2001 By: /s/ Frank Creer
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Frank Creer, Director
June 25, 2001 By: /s J. Tod Fetherling
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J. Tod Fetherling, Director
June 25, 2001 By: /s Dino Moshova
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Dino Moshova, Director
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INDEX TO EXHIBITS
Exhibit No. Exhibit
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4.1 - Articles of Incorporation, as amended, of Pet Quarters, Inc.(1)
4.2 - Articles of Amendment of Pet Quarters, Inc., dated May 8, 2000, designating the Series
A Convertible Preferred Stock(2)
4.3 - Bylaws of Pet Quarters, Inc.(1)
4.4 - Pet Quarters, Inc. Management Incentive Plan(3)
4.5 - Form of Stock Option Agreement
5.1 - Opinion of Wright, Lindsey & Jennings LLP
23.1 - Consent of Ernst & Young LLP.
23.2 - Consent of Crouch, Bierwolf & Chisholm.
23.3 - Consent of Kronick Kalada Berdy & Co., P.C.
23.4 - Consent of Clumeck, Stern, Phillips & Schenkelberg.
23.5 - Consent of Wright, Lindsey & Jennings LLP. (included in Exhibit 5.1)
24.1 - Power of Attorney. (included on signature page hereto)