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As filed with the Securities and Exchange Commission on May 21, 1999
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
MODTECH HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0825386
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2830 BARRETT AVENUE
PERRIS, CA 92571
(Address of Principal Executive Office) (Zip Code)
MODTECH HOLDINGS, INC. 1999 PREDECESSOR OPTIONS CONVERSION PLAN
MODTECH HOLDINGS, INC. 1999 NONSTATUTORY STOCK OPTION PLAN
(Full titles of the plans)
EVAN M. GRUBER
2830 BARRETT AVENUE
PERRIS, CA 92571
(Name and address of agent for service)
(909) 943-4014
(Telephone number, including area code, of agent for service)
COPY TO:
JON R. HADDAN, ESQ.
HADDAN & ZEPFEL LLP
4675 MACARTHUR COURT, SUITE 710
NEWPORT BEACH, CA 92660
(949) 752-6100
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CALCULATION OF REGISTRATION
<TABLE>
<CAPTION>
========================================================================================================================
Title of Securities Amount to Proposed Maximum Proposed Maximum Amount of
to Be Registered Be Registered Offering Price Per Share Aggregate Offering Price Registration Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 389,909 $2.26(1) $ 881,194(1) $ 245
$0.01 par value 1,250,000 $8.91(2) $11,137,500(2) $3,096
========================================================================================================================
</TABLE>
(1) Calculated pursuant to Rule 457(h) based on the weighted average per
share exercise price.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) based on the average of the
high and low prices per share of Common Stock as reported on the Nasdaq
National Market on May 20, 1999.
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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") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act") by Modtech Holdings, Inc. ( the "Company") are
hereby incorporated by reference in this Registration Statement except as
superseded or modified herein:
(a) the Annual Report on Form 10-K for the year ended December 31,
1998, including any amendment or reports filed for the purpose of updating such
description; and
(b) the description of the Registrant's Common Stock that is contained
in the Registrant's registration statement on Form 8-A filed under Section 12 of
the Exchange Act, including any amendment or report filed for the purpose of
updating that description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the time a post-effective amendment which
indicates that the securities offered hereby 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. Any statement contained in any document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as modified or superseded, to constitute
a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, as amended (the
"DGCL") permits a corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action.
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In a suit brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorney's fees, actually
and reasonably incurred in connection with the defense or settlement of the
case, and the corporation may not indemnify for amounts paid in satisfaction of
a judgment or in settlement of the claim. In any such action, no indemnification
may be paid in respect of any claim, issue or matter as to which such persons
shall have been adjudged liable to the corporation, except as otherwise provided
by the Delaware Court of Chancery or the court in which the claim was brought.
In any other type of proceeding, the indemnification may extend to judgments,
fines and amounts paid in settlement, actually and reasonably incurred in
connection with such other proceeding, as well as to expenses (including
attorneys' fees).
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interest of the corporation and, in the
case of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. There are additional limitations applicable to
criminal actions and to actions brought by or in the name of the corporation.
The determination as to whether a person seeking indemnification has met the
required standard of conduct is to be made (i) by a majority vote of a quorum of
disinterested members of the board of directors, or (ii) by independent counsel
in a written opinion, if such a quorum does not exist or if the disinterested
directors so direct, or (iii) by the stockholders.
The Certificate of Incorporation and Bylaws of the Company require the
Company to indemnify the Company's directors and officers to the fullest extent
permitted under Delaware law. The Company's Certificate of Incorporation limits
the personal liability of a director to the Company or its stockholders to
damages for breach of the director's fiduciary duty.
The above discussion of the Company's Certificate of Incorporation and
Bylaws and the DGCL is not intended to be exhaustive and is qualified in its
entirety by such Certificate, Bylaws and statute.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
ITEM 8. EXHIBITS.
3.1 Certificate of Incorporation of the Company (1)
3.2 Bylaws of the Company (1)
5.1 Opinion of Haddan & Zepfel LLP
23.1 Consent of KPMG LLP
24.2 Consent of Haddan & Zepfel LLP (included in Exhibit 5.1)
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(1) Incorporated by reference from the Company's Registration Statement on Form
S-4, filed with the Commission on October 27, 1998 (Commission File No.
333-69033).
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ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(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 (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,
represents 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 (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 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
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 the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 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 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 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 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 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 Newport Beach, State of California, on May 21, 1999.
MODTECH HOLDINGS, INC.
By: /s/ EVAN M. GRUBER
--------------------------------
Evan M. Gruber
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Evan M. Gruber his attorney-in-fact and agent, with
full power of substitution, for him and in his 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 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 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 substitute or 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 and on the date indicated:
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
(1) Principal Executive Officer
/s/ EVAN M. GRUBER Chief Executive Officer, Chairman May 21, 1999
- ------------------------------------ of the Board and a Director
Evan M. Gruber
(2) Principal Financial and Accounting Officer
/s/ MICHAEL G. RHODES Chief Financial Officer and May 21, 1999
- ------------------------------------ Chief Operating Officer
Michael G. Rhodes
(3) Directors
/s/ PATRICK VAN DEN BOSSCHE President, Secretary May 21, 1999
- ------------------------------------ and a Director
Patrick Van Den Bossche
/s/ CHARLES C. McGETTIGAN Director May 21, 1999
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Charles C. McGettigan
/s/ MYRON A. WICK III Director May 21, 1999
- ------------------------------------
Myron A. Wick III
/s/ DANIEL J. DONAHOE III Director May 21, 1999
- ------------------------------------
Daniel J. Donahoe III
/s/ CHARLES A. HAMILTON Director May 21, 1999
- ------------------------------------
Charles A. Hamilton
/s/ CHARLES R. GWIRTSMAN Director May 21, 1999
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Charles R. Gwirtsman
/s/ ROBERT W. CAMPBELL Director May 21, 1999
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Robert W. Campbell
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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3.1 Certificate of Incorporation of the Company (1)
3.2 Bylaws of the Company (1)
5.1 Opinion of Haddan & Zepfel LLP
23.1 Consent of KPMG LLP
24.2 Consent of Haddan & Zepfel LLP (included in Exhibit 5.1)
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(1) Incorporated by reference from the Company's Registration Statement on Form
S-4, filed with the Commission on October 27, 1998 (Commission File No.
333-69033).
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EXHIBIT 5.1
[LETTERHEAD OF HADDAN & ZEPFEL LLP]
May 21, 1999
Modtech Holdings, Inc.
2830 Barrett Avenue
Perris, CA 92571
Dear Sirs:
You have requested our opinion with respect to certain matters in
connection with the filing by Modtech Holdings, Inc. (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission, covering the registration of up to 1,639,909
shares of the Company's Common Stock, $0.01 par value (the "Shares"), for
issuance pursuant to (i) the Agreement and Plan of Reorganization and Merger,
dated September 28, 1998, and (ii) the Modtech Holdings, Inc. 1999 Nonstatutory
Stock Option Plan (collectively, the "Stock Option Plans").
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Company's Certificate of Incorporation and Bylaws,
the Stock Option Plans, and the originals or copies certified to our
satisfaction of such records, documents, certificates, memoranda and other
instruments as in our judgment are necessary or appropriate to enable us to
render the opinion expressed below. We have assumed the genuineness and
authenticity of all documents submitted to us as originals, the conformity to
originals of all documents submitted to us as copies thereof and the due
execution and delivery of all documents where due execution and delivery are a
prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the
opinion that the Shares, when sold and issued in accordance with the
Registration Statement and the Stock Option Plans, will be validly issued, fully
paid, and nonassessable shares of Common Stock of the Company.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Haddan & Zepfel LLP
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Haddan & Zepfel LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 17, 1999, with
respect to the financial statements of Modtech, Inc. included in the Annual
Report of Modtech Holdings, Inc. on Form 10-K for the year ended December 31,
1998.
/s/ KPMG LLP
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KPMG LLP
Costa Mesa, California
May 20, 1999
