As filed with the Securities and Exchange Commission on _______________.
Registration No.___
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
AMERICAN PACIFIC CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 59-6490478
(State or other jurisdiction of (I.R.S. Employer
incorporation or Organization) Identification No.)
3770 Howard Hughes Parkway
Suite 300
Las Vegas, Nevada 89109
(Address, including zip code, of Registrant's principal executive offices)
American Pacific Corporation 401(k) Plan
(Full title of the Plan)
David N. Keys
Executive Vice President
American Pacific Corporation
3770 Howard Hughes Parkway
Suite 300
Las Vegas, Nevada 89109
(702) 735-2200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Victor M. Rosenzweig, Esq.
Olshan Grundman Frome Rosenzweig & Wolosky LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
CALCULATION OF REGISTRATION FEE
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Title of each class of Proposed maximum Proposed maximum
Securities to be Amount to be offering price aggregate Amount of
registered registered per share offering price registration fee
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Participation Interests (1) (2) (2) (3)
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, the
registration statement covers an indeterminate amount of plan interests to
be offered or sold pursuant to the American Pacific Corporation 401(k) Plan
(the "Plan").
(2) Not applicable.
(3) Pursuant to Rule 457(h)(3) under the Securities Act of 1933, as amended, no
registration fee is required to be paid.
EXPLANATORY NOTE
American Pacific Corporation (the "Company") has prepared this
Registration Statement in accordance with the requirements of Form S-8 under the
Securities Act of 1933, as amended (the "Securities Act"), to register an
indeterminate number of participation interests in the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The Company will provide documents containing the information
specified in Part I of Form S-8 to participating employees as specified by Rule
428(b)(1) under the Securities Act. Pursuant to the instructions to Form S-8,
the Company is not required to file these documents either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference and
made a part hereof:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 2002;
(2) The Company's Quarterly Report on Form 10-Q for the period ended
December 31, 2002;
(3) The Company's Quarterly Report on Form 10-Q for the period ended
March 31, 2003;
(4) The Company's Quarterly Report on Form 10-Q for the period ended
June 30, 2003;
(5) The Company's Current Report on Form 8-K filed on December 13,
2002;
(6) The Company's Current Report on Form 8-K filed on May 7, 2003;
(7) The Company's Current Report on Form 8-K filed on August 1,
2003; and
(8) The Annual Report on Form 11-K filed by the Plan concurrently
with this Registration Statement.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13, 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
de-registers all securities remaining unsold, shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of the filing of such
reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Delaware General Corporation Law ("DGCL"), the
Company's Certificate of Incorporation, as amended, limits the personal
liability of a director or officer to the Company for monetary damages for
breach of fiduciary duty of care as a director. Liability is not eliminated for
(i) any breach of the director's duty of loyalty to the Company or its
stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) unlawful payment of
dividends or stock purchase or redemptions pursuant to Section 174 of the DGCL,
or (iv) any transaction from which the director derived an improper personal
benefit.
The Company has also entered into indemnification agreements with
each of its directors. The indemnification agreements provide that the directors
will be indemnified to the fullest extent permitted by applicable law against
all expenses (including attorneys' fees), judgments, fines and amounts
reasonably paid or incurred by them for settlement in any threatened, pending or
completed action, suit or proceeding, including any derivative action, on
account of their services as a director of the Company. No indemnification will
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be provided under the indemnification agreements, however, to any director in
certain limited circumstances, including with respect to expenses or liabilities
paid by insurance or arising from purchases or sales of securities in violation
of Section 16(b) of the Exchange Act. To the extent the provisions of the
indemnification agreements exceed the indemnification permitted by applicable
law, such provision may be unenforceable or may be limited to the extent they
are found by a court of competent jurisdiction to be contrary to pubic policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
*4.1 - The American Pacific Corporation 401(k) Plan (the "Plan").
*4.2 - Adoption Agreement.
*4.3 - EGTRRA Amendment to the Plan.
*5.1 - Opinion of Olshan Grundman Frome Rosenzweig & Wolosky
LLP.
*5.2 - A favorable determination letter dated August 7, 2001
from the Internal Revenue Service that the Plan is
qualified under Section 401(a) of the Internal Revenue
Code.
*23.1 - Consent of Deloitte & Touche LLP, independent auditors.
*23.2 - Consent of Olshan Grundman Frome Rosenzweig & Wolosky
LLP (included in its opinion filed as Exhibit 5.1).
*24 - Powers of Attorney (included on signature page to this
Registration Statement).
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* Filed herewith.
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;
(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;
provided, however, that paragraphs (i) and (ii) above 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 15(d) of the Exchange
Act that are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
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offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that 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, each
filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
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
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 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 Commission such indemnification is
against public policy as expressed in the Securities 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 a controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities 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, 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 Las Vegas, State of Nevada on September 12, 2003.
AMERICAN PACIFIC CORPORATION
By: /s/ John R. Gibson
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John R. Gibson
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of John R. Gibson and David N. Keys
his true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for and in his or her name, place and stead, in any and all
capacities, to sign any or 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 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 or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his or her
substitute, 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 on the date indicated.
Signature Title Date
--------- ----- ----
/s/ John R. Gibson President, Chief Executive Officer September 12, 2003
------------------------------------ (Principal Executive Officer) and
John R. Gibson Chairman of the Board
/s/ David N. Keys Executive Vice President, Chief September 12, 2003
------------------------------------ Financial Officer (Principal Financial
David N. Keys and Accounting Officer), Treasurer,
Secretary and Director
/s/ Fred D. Gibson, Jr. Director September 12, 2003
------------------------------------
Fred D. Gibson, Jr.
/s/ Jan H. Loeb Director September 12, 2003
------------------------------------
Jan H. Loeb
/s/ Berlyn D. Miller Director September 12, 2003
------------------------------------
Berlyn D. Miller
/s/ Norval F. Pohl Director September 12, 2003
------------------------------------
Norval F. Pohl
/s/ C. Keith Rooker Director September 12, 2003
------------------------------------
C. Keith Rooker
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Director September __, 2003
------------------------------------
Victor M. Rosenzweig
/s/ Dean M. Willard Director September 12, 2003
------------------------------------
Dean M. Willard
/s/ Jane L. Williams Director September 12, 2003
------------------------------------
Jane L. Williams
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