As filed with the Securities and Exchange Commission on December 18, 1998
Registration No. ___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
-----------------------
EUROPEAN MICRO HOLDINGS, INC.
(Exact Name of Registrant as Specified in Its Charter)
NEVADA
(State or Other Jurisdiction of Incorporation or Organization)
65-0803752
(I.R.S. Employer Identification No.)
6073 N.W. 167TH STREET, UNIT C-25
MIAMI, FLORIDA 33015
(Address of Principal Executive Offices)
EUROPEAN MICRO HOLDINGS, INC. 1998 STOCK INCENTIVE PLAN
EUROPEAN MICRO HOLDINGS, INC. 1998 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
JOHN B. GALLAGHER
6073 N.W. 167TH STREET, UNIT C-25
MIAMI, FLORIDA 33015
(Name and Address of Agent For Service)
(305) 825-2458
(Telephone Number, Including Area Code, of Agent for Service)
COPY TO:
Clayton E. Parker, Esq.
Kirkpatrick & Lockhart LLP
201 South Biscayne Boulevard, Suite 2000
Miami, Florida 33131
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title Of Maximum Maximum
Securities Amount Offering Aggregate Amount Of
To Be To Be Price Per Offering Registration
Registered Registered Share (1)(2) Price (1)(2) Fee (1)(2)
- --------------------------------------------------------------------------------
Common Stock, par 550,000 shares $11.78 $6,479,000 $1,801.16
value $0.01 per
share
- --------------------------------------------------------------------------------
(1) This Registration Statement covers, in addition to the number of shares
of Common Stock stated above, options to purchase or acquire the shares of
Common Stock covered by the Prospectus.
(2) Pursuant to Rule 457(h)(1) of the Securities Exchange Act of 1934,
the proposed maximum offering price per share, proposed maximum aggregate
offering price and amount of registration fee were computed based upon
the average of the high and low prices of the shares of Common Stock on
December 16, 1998.
<PAGE>
PART I
INFORMATION REQUIRED IN THIS
SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
(plan information and registrant information) will be sent or given to employees
as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Act"). Such documents need not be filed with the Securities and Exchange
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424. These documents, which include the
statement of availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Act.
PART II
INFORMATION REQUIRED IN THIS
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been previously filed by European Micro
Holdings, Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") and are hereby incorporated by reference into this Registration
Statement as of their respective dates:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1998 filed with the Commission on September 28, 1998.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998 filed with the Commission on November 13, 1998.
(c) The Company's Current Report on Form 8-K filed with the Commission
on November 10, 1998.
(d) The Company's Post-Effective Amendment No. 1 to the Registration
Statement on Form S-1 filed with the Commission on November 5, 1998.
(e) The Company's Proxy Statement on Schedule 14A filed with the
Commission on October 27, 1998.
(f) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission on March 26, 1998,
as amended, pursuant to the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, after the date of this Registration Statement, but prior to
the filing of a post-effective amendment to this Registration Statement that
indicates that all securities offered by this Registration Statement have been
sold or which deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement. Each
document incorporated by reference into this Registration Statement shall be
deemed to be a part of this Registration Statement from the date of the filing
of such document with the Commission until the information contained therein is
superseded or updated by any subsequently filed document that is incorporated by
reference into this Registration Statement or by any document that constitutes
part of the prospectus relating to the European Micro Holdings, Inc. 1998 Stock
Incentive Plan or the European Micro Holdings, Inc. Employee Stock Purchase Plan
that meets the requirements of Section 10(a) of the Securities Act of 1933, as
amended.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
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<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company has entered into indemnification agreements with each of
its officers and directors. These agreements provide that the Company will
indemnify each director and officer to the fullest extent permitted by law from
and against any and all claims of any type arising from or related to his past
or future acts or omissions as a director or officer of the Company and any of
its subsidiaries. In addition, the Company has agreed to advance all expenses of
each director and officer as they are incurred and in advance of the final
disposition of any claim.
Section 78.751 of the Nevada Revised Statutes (the "NRS") provides, in
effect, that any person made a party to any action by reason of the fact that he
is or was a director, officer, employee or agent of the Company may and, in
certain cases, must be indemnified by the Company against, in the case of a
non-derivative action, judgments, fines, amounts paid in settlement and
reasonable expenses (including attorneys' fees) incurred by him as a result of
such action, and in the case of a derivative action, against expenses (including
attorneys' fees), if in either type of action he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company. This indemnification does not apply, in a derivative action, to
matters as to which it is adjudged that the director, officer, employee or agent
is liable to the Company, unless upon court order it is determined that, despite
such adjudication of liability, but in view of all the circumstances of the
case, he is fairly and reasonably entitled to indemnification for expenses, and,
in a non-derivative action, to any criminal proceeding in which such person had
reasonable cause to believe his conduct was lawful.
Section 78.037 of the NRS allows the Company to eliminate or limit the
personal liability of a director to the Company or to any of its shareholders
for monetary damage for a breach of fiduciary duty as a director, except for:
(i) acts or omissions which involve intentional misconduct, fraud or knowing
violation of law; or (ii) the payment of distributions in violation of NRS
78.300.
Article VI of the Company's Articles of Incorporation provides that the
Company shall indemnify any person (and the heirs, executors or administrators
of such person) who was or is a party or is threatened to be made a party to, or
is involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Company or is or was
serving at the request of the Company as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, to the
fullest extent permitted by Nevada Law. Each such indemnified party shall have
the right to be paid by the Company for any expenses incurred in connection with
any such proceeding in advance of its final disposition to the fullest extent
authorized by Nevada Law. Article VI of the Company Articles of Incorporation
also provides that the Company may, by action of its Board of Directors, provide
indemnification to such of the employees and agents of the Company to such
extent and to such effect as the Board of Directors shall determine to be
appropriate and authorized by Nevada Law.
The Company maintains an insurance policy that provides protection,
within the maximum liability limits of the policy and subject to a deductible
amount for each claim, to the Company under its indemnification obligations and
to the directors and officers of the Company with respect to certain matters
that are not covered by the Company's indemnification obligations.
Pursuant to an Underwriting Agreement, Tarpon Scurry Investments, Inc.
has agreed to indemnify the directors, officers and controlling persons of the
Company against certain civil liabilities that may be incurred in connection
with the Company's initial public offering which closed on or about June 12,
1998, including certain liabilities under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
3
<PAGE>
ITEM 8. EXHIBITS.
Exhibit No. Description Location
----------- ----------- --------
4.1 European Micro Holdings, Incorporated by reference to
Inc. 1998 Stock Incentive Exhibit 4.01 to the Company's
Plan Registration Statement (the
"Registration Statement") on
Form S-1 filed with the
Securities and Exchange
Commission on January 16,
1998
4.2 European Micro Holdings, Incorporated by reference to
Inc. 1998 Employee Stock Exhibit 4.02 to the Company's
Purchase Plan Registration Statement
5.1 Opinion of Kirkpatrick & Provided herewith
Lockhart LLP re: legality
23.1 Consent of Kirkpatrick & Provided herewith (contained
Lockhart LLP in Exhibit 5.1)
23.2 Consent of KPMG Provided herewith
24.1 Power of Attorney Provided herewith
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant will:
(1) File, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Act;
(ii) 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;
(iii) Include any additional or changed 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 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) For purposes of determining any liability under the Securities
Act, treat each post-effective amendment as 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) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end 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
4
<PAGE>
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) The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report, to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Articles 3 of Regulation S-X is not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the prospectus is sent
or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
(d) 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.
5
<PAGE>
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 Miami, State of Florida on this 18th day of
December 1998.
EUROPEAN MICRO HOLDINGS, INC.
By: /S/ JOHN B. GALLAGHER
-------------------------------------
Printed Name: John B. Gallagher
Title: Co-President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John B. Gallagher his true and lawful
attorney-in-fact and agent, with full power of substitution and revocation, for
him and in his name, place and stead, in any and all capacities (until revoked
in writing), 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 and necessary to be done as fully for 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 by the following persons in the
capacities indicated, which together constitute a majority of the board of
directors of the Company.
<TABLE>
<CAPTION>
<S> <C>
Date: December 18, 1998 By: /S/ John B. Gallagher
---------------------------------------
Printed Name: John B. Gallagher
Title: Co-President and Co-Chairman of the Board
(Principal Executive Officer)
Date: December 18, 1998 By: /S/ Harry D. Shields
---------------------------------------
Printed Name: Harry D. Shields
Title: Co-President and Co-Chairman of the Board
(Principal Executive Officer)
Date: December 18, 1998 By: /S/ Jay Nash
---------------------------------------
Printed Name: Jay Nash
Title: Chief Financial Officer, Controller, Treasurer and
Secretary (Principal Financial Officer and Controller)
Date: December 18, 1998 By: /S/ Barrett Sutton
-------------------------------------
Printed Name: Barrett Sutton
Title: Director
Date: December 18, 1998 By: /S/ Kyle Saxon
-------------------------------------
Printed Name: Kyle Saxon
Title: Director
Date: December 18, 1998 By: /S/ Laurence Gilbert
-------------------------------------
Printed Name: Laurence Gilbert
Title: Director
Date: December 18, 1998 By: /S/ Bernadette Spofforth
-------------------------------------
Printed Name: Bernadette Spofforth
Title: Director
</TABLE>
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<PAGE>
EXHIBIT LIST
------------
Exhibit No. Description Location
----------- ----------- --------
4.1 European Micro Holdings, Inc. Incorporated by reference
1998 Stock Incentive Plan to Exhibit 4.01 to the
Company's Registration
Statement (the
"Registration Statement")
on Form S-1 filed with the
Securities and Exchange
Commission on January 16,
1998
4.2 European Micro Holdings, Inc. Incorporated by reference
1998 Employee Stock Purchase to Exhibit 4.02 to the
Plan Company's Registration
Statement
5.1 Opinion of Kirkpatrick & Provided herewith
Lockhart LLP re: legality
23.1 Consent of Kirkpatrick & Provided herewith
Lockhart LLP (contained in Exhibit 5.1)
23.2 Consent of KPMG Provided herewith
24.1 Power of Attorney Provided herewith
7
EXHIBIT 5.1
-----------
KIRKPATRICK & LOCKHART LLP
201 South Biscayne Boulevard, Suite 2000
Miami, FL 33131-2399
December 18, 1998
European Micro Holdings, Inc.
4073 N.W. 167th Street, Unit C-25
Miami, Florida 33015
RE: EUROPEAN MICRO HOLDINGS, INC.
REGISTRATION STATEMENT ON FORM S-8 (THE "REGISTRATION STATEMENT")
Gentlemen:
We have acted as counsel to European Micro Holdings, Inc., a Nevada
corporation (the "CORPORATION"), in connection with the preparation of the
above-referenced Registration Statement to be filed with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"1933 ACT"), relating to the offering and sale by the Corporation of up to
550,000 shares of the Corporation's Common Stock, par value $0.01 per share (the
"COMMON STOCK"), pursuant to stock options (the "OPTIONS") granted or to be
granted under the Corporation's 1998 Employee Stock Purchase Plan and the
Corporation's 1998 Employee Stock Incentive Plan (collectively, the "PLANS"). We
are furnishing this opinion to you in accordance with Item 601(b)(5) of
Regulation S-K promulgated under the 1933 Act for filing as Exhibit 5.1 to the
Registration Statement.
We are familiar with the Registration Statement, and we have
examined the Corporation's Articles of Incorporation, as amended to date, the
Corporation's Bylaws, as amended to date, and minutes and resolutions of the
Corporation's Board of Directors and shareholders. We have also examined such
other documents, certificates, instruments and corporate records, and such
statutes, decisions and questions of law as we have deemed necessary or
appropriate for the purpose of this opinion.
Based upon the foregoing, we are of the opinion that the 550,000
shares of Common Stock proposed to be sold pursuant to the exercise of Options
granted under and in accordance with the terms of the Plans will, when issued,
be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ Kirkpatrick & Lockhart LLP
------------------------------
Kirkpatrick & Lockhart LLP
EXHIBIT 23.2
------------
The Board of Directors
European Micro Holdings, Inc.:
We consent to the use of our report incorporated herein by reference.
/s/ KPMG Peat Marwick LLP
- -----------------------
Nashville, Tennessee
December 15, 1998
EXHIBIT 24.1
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John B. Gallagher his true and lawful
attorney-in-fact and agent, with full power of substitution and revocation, for
him and in his name, place and stead, in any and all capacities (until revoked
in writing), 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 and necessary to be done as fully for 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.
