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As filed with the Securities and Exchange Commission on June 5, 2001
Registration No. 333-______________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TBA ENTERTAINMENT CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 62-1535897
(State of Incorporation) (I.R.S. Employer Identification No.)
16501 VENTURA BOULEVARD, ENCINO, CALIFORNIA 91436
(Address of principal executive offices) (zip code)
TBA ENTERTAINMENT CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
RANDALL E. ROBERTS, ESQ.
WINSTEAD SECHREST & MINICK P.C.
5400 RENAISSANCE TOWER
1201 ELM STREET
DALLAS, TEXAS 75270
(Name and address of agent for service)
(214) 745-5400
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
=========================================================================================================================
Proposed Proposed
Title of Amount Maximum Maximum
Securities to be to be Offering Price Aggregate Amount of
Registered Registered Per Share(1) Offering Price(1) Registration Fee
------------------------- ------------------- ------------------------ ------------------------- -----------------------
Common Stock, $.001 400,000 $3.825 $1,530,000 $382.50
par value per share
=========================================================================================================================
(1) Estimated on the basis of the average of the high and low prices of the
Common Stock of the Registrant on the American Stock Exchange on June 1,
2001 solely for the purposes of calculating the registration fee
pursuant to Rules 457(c) and (h).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
1. PLAN INFORMATION.*
2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
--------------------
* Information required by Part I of Form S-8 to be contained in a
prospectus meeting the requirements of Section 10(a) of the Securities
Act of 1933 is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933 and the Note to Part I of
Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are incorporated herein by reference the following documents
heretofore filed by the Registrant with the Securities and Exchange Commission
(the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2000;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2001;
(c) The description of the Registrant's common stock, par value
$.001 per share (the "Common Stock"), contained in the
Registrant's registration statement on Form 8-A under the
Exchange Act (Registration No. 001-16299) filed by the
registrant with the Commission, including any amendments or
reports filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after 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 hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The Registrant's Common Stock has been registered under
Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law (the "DGCL") provides that a
corporation's certificate of incorporation may contain a provision which,
subject to the limitations described below, would limit or eliminate a
director's personal liability to the corporation or its stockholders for
monetary damages for breach of his or her fiduciary duty. The DGCL prohibits the
limitation of liability of a director (i) for breaches of the duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) for transactions from which the director derived an improper personal
benefit, or (iv) for the
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payment of unlawful dividends or expenditures of funds for unlawful stock
purchases or redemptions. The Registrant's Certificate of Incorporation
eliminates liability for monetary damages for breach of a director's fiduciary
duty to the fullest extent possible under Delaware law.
The DGCL permits a corporation to indemnify its directors, officers and
employees. The DGCL allows for indemnification if the person acted in good faith
and in a manner he or she believed to be in, or at least not opposed to, the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the conduct was unlawful. Under
the DGCL, indemnification of officers, directors and employees is permissive;
however, a director, officer, employee or agent of a corporation must be
indemnified against expenses if he or she is successful on the merits or
otherwise in defense of any action, suit or proceeding to which he or she was
made a party by reason of the fact that he or she is or was a director, officer,
employee or agent of the corporation, unless otherwise set forth in the
corporation's certificate of incorporation. A corporation may not indemnify a
director or officer of the corporation in connection with a proceeding by or in
the right of the corporation in which the director, officer, employee or agent
was adjudged liable to the corporation pursuant to the DGCL. The DGCL does,
however, permit indemnification in such a case if the Delaware Court of Chancery
or the court in which such action or suit was brought determines that the person
is fairly and reasonably entitled to indemnification. The Registrant's
Certificate of Incorporation does not limit indemnification of directors,
officers and employees.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit Number Description
-------------- -----------
4.1 Specimen Common Stock Certificate(1)
4.2 Paragraph 6 of the Charter of the Registrant(2)
4.3 Specimen Warrant Certificate(2)
5.1 Opinion of Winstead Sechrest & Minick P.C. regarding the
validity of the securities being registered*
10.1 TBA Entertainment Corporation Employee Stock Purchase
Plan*
23.1 Consent of Winstead Sechrest & Minick P.C. (included as
part of Exhibit 5.1)*
23.2 Consent of Arthur Andersen LLP*
24.1 Power of Attorney* (see page S-1 of this Registration
Statement)
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*filed herewith
(1) Incorporated by reference to the same exhibit number in the
Registrant's Registration Statement on Form SB-2 (Registration
No. 33-69944).
(2) Incorporated by reference to the same exhibit number in the
Registrant's Registration Statement on Form SB-2 (Registration
No. 33-97890).
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ITEM 9. UNDERTAKINGS.
(a) The 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 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;
(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 (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 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 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 that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered herein, 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
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Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 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 Hickory Valley, State of Tennessee, on June 5, 2001.
TBA ENTERTAINMENT CORPORATION
By: /s/ Thomas Jackson Weaver III
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Thomas Jackson Weaver III
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and officers of TBA Entertainment Corporation, a Delaware corporation, which is
filing a Registration Statement on Form S-8 with the Securities and Exchange
Commission, Washington, D.C. 20549, under the provisions of the Securities Act
of 1933, as amended, hereby constitutes and appoints Thomas Jackson Weaver III
and Bryan J. Cusworth, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign such Registration
Statement and any or all amendments and post-effective amendments to the
Registration Statement, and all other documents in connection therewith, to be
filed 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 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
attorneys-in-fact and agents or any of them, or their substitute or substitutes,
may lawfully do or cause to be done by virtue thereof.
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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 dates indicated.
Signature Title Date
--------- ----- ----
/s/ Thomas Jackson Weaver III Chairman of the Board and Chief April 10, 2001
-------------------------------------------- Executive Officer (Principal
Thomas Jackson Weaver III Executive Officer)
/s/ Bryan J. Cusworth Chief Financial Officer (Principal April 10, 2001
-------------------------------------------- Accounting and Financial Officer)
Bryan J. Cusworth
/s/ Frank Bumstead Director April 10, 2001
--------------------------------------------
Frank Bumstead
Director April __, 2001
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Charles Flood
/s/ Joseph C. Galante Director April 10, 2001
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Joseph C. Galante
/s/ S. Herbert Rhea Director April 10, 2001
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S. Herbert Rhea
/w/ W. Reid Sanders Director April 10, 2001
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W. Reid Sanders
Director April __, 2001
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Frank A. McKinnie Weaver, Sr.
/s/ Kyle Young Director April 10, 2001
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Kyle Young
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 Specimen Common Stock Certificate(1)
4.2 Paragraph 6 of the Charter of the Registrant(2)
4.3 Specimen Warrant Certificate(2)
5.1 Opinion of Winstead Sechrest & Minick P.C. regarding the
validity of the securities being registered*
10.1 TBA Entertainment Corporation Employee Stock Purchase Plan*
23.1 Consent of Winstead Sechrest & Minick P.C. (included as part
of Exhibit 5.1)*
23.2 Consent of Arthur Andersen LLP*
24.1 Power of Attorney* (see page S-1 of this Registration
Statement)
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*filed herewith
(1) Incorporated by reference to the same exhibit number in the
Registrant's Registration Statement on Form SB-2 (Registration
No. 33-69944).
(2) Incorporated by reference to the same exhibit number in the
Registrant's Registration Statement on Form SB-2 (Registration
No. 33-97890).