<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 16, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TEXAS MICRO INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-2738973
(State or other jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
5959 CORPORATE DRIVE, HOUSTON, TEXAS 77036
(Address of Principal Executive Offices) (Zip Code)
1996 LONG TERM INCENTIVE PLAN
(Full Title of the Plan)
KERMIT R. SUMRALL
ACTING CHIEF FINANCIAL OFFICER AND SECRETARY
TEXAS MICRO INC.
5959 CORPORATE DRIVE
HOUSTON, TEXAS 77036
(713) 541-8200
(Name, Address and Telephone Number, Including
Area Code, of Agent For Service)
____________________________
With a copy to:
JEFFREY R. HARDER
ANDREWS AND KURTH L.L.P.
2170 BUCKTHORNE PLACE, SUITE 150
THE WOODLANDS, TEXAS 77380
(713) 220-4801
____________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be Registered to be Registered (1) Offering Price Aggregate Registration
Per Share (2) Offering Price (2) Fee (2)
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.40 per share 1,550,000 shares $4.19 $6,494,500 $1,805.47
=================================================================================
(1) Pursuant to Rule 416(a), this registration statement shall cover any additional securities issued to prevent dilution
resulting from stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h), based on the
average of the high and low sales prices per share of the Registrant's Common Stock, as reported on The Nasdaq Stock
Market on April 12, 1999.
============================================================================================================================
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of
Form S-8 will be sent or given to participating employees as specified by
Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
These documents and the documents incorporated by reference hereto pursuant to
Item 3 of Part II of this registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have heretofore been filed by Texas
Micro Inc. (the "Registrant") with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are hereby incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended
June 30, 1998;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 27, 1998;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended December 27, 1998;
(d) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed pursuant to Section 12 of
the Exchange Act, including all amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant 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 filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
de-registers all such 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 such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by Item 4 is not applicable to this
Registration Statement because the class of securities to be offered is
registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The information required by Item 5 is not applicable to this
Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL"), inter
alia, empowers a Delaware 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 (other than an action by or in the right of
the corporation) by reason of the fact that such person 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 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, suit or proceeding if he acted in good
faith and in a manner he 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 reasonable cause to believe his conduct was unlawful. Similar
indemnity is authorized for such persons against expenses (including attorneys'
fees) actually and reasonably incurred in connection with the defense or
settlement of any such threatened, pending or completed action or suit if such
person acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, and provided further that
(unless a court of competent jurisdiction otherwise provides) such person shall
not have been adjudged liable to the corporation. Any such indemnification may
be made only as authorized in each specific case upon a determination by the
stockholders or disinterested directors or by independent legal counsel in a
written opinion that indemnification is proper because the indemnitee has met
the applicable standard of conduct.
<PAGE>
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who 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 or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145. The
Registrant maintains policies insuring its and its subsidiaries' officers and
directors against certain liabilities for actions taken in such capacities,
including liabilities under the Securities Act.
Article VII of the Registrant's Certificate of Incorporation provides
that the Registrant will indemnify each person who is or was or has agreed to be
a director or officer of the Registrant against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement to the maximum extent
permitted from time to time under the Delaware General Corporation Law.
Article IX of the Registrant's Certificate of Incorporation also
provides that no director of the Registrant shall be liable for monetary damages
for any breach of fiduciary duty, except to the extent that the Delaware General
Corporation Law prohibits the elimination or limitation of liability of
directors for breach of fiduciary duty.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this
Registration Statement.
ITEM 8. EXHIBITS.
Exhibit
Number Description
- ------- -----------
4.1 + Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the Company's 1994
Annual Report on Form 10-K, as amended by Form 10-K/A
(File No. 0-18238)).
4.2 + Certificate of Amendment of Restated Certificate of Incorporation
of the Company (incorporated by reference to the Registrant's
1995 Annual Report on Form 10-K filed September 25, 1995 (File
no. 0-18238)).
4.3 + Certificate of Amendment of Restated Certificate of Incorporation
of the Registrant (incorporation by reference to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended March 30,
1997 filed May 12, 1997 (File no. 01-18238)).
4.4 + Amended and Restated By-Laws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1 (File No. 33-33024)).
4.5 + Specimen Common Stock Certificate
5.1 * Opinion of Andrews & Kurth L.L.P.
23.1 * Consent of Andrews & Kurth L.L.P. (contained in Exhibit 5.1).
23.2 * Consent of PricewaterhouseCoopers LLP.
24.1 * Power of Attorney (set forth on the signature page contained in
Part II of this Registration Statement)
99.1 + Merger and Stock Purchase Agreement dated as of November 9, 1995
by and among the Registrant, Sequoia Acquisition Corporation,
SPCO, Inc. and Keystone International, Inc., as amended
(incorporated by reference from Exhibit 2.1 to the Registrant's
Registration Statement on Form S-4 (File No. 33-54777), filed on
February 21, 1995).
99.2 + Amendment No. 1 to the Merger Agreement, dated as of February 7,
1995 (incorporated by reference from Exhibit 2.2 to the
Registrant's Registration Statement on Form S-4 (File
No. 33-54777), filed on February 21, 1995).
99.3 + Amendment No. 2 to the Merger Agreement, dated as of February 23,
1995 (incorporated by reference from Exhibit 2.3 to the
Registrant's Registration Statement on Form S-4/A (File
No. 33-54777), filed on February 24, 1995).
99.4 + Texas Micro Inc. 1996 Long Term Incentive Plan
- -------------------------
+ Incorporated herein by reference.
* Filed herewith.
II-3
<PAGE>
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 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) 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 with or furnished to The Securities and Exchange
Commission 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 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 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 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 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.
II-4
<PAGE>
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 Houston, State of Texas, on this 15th day of April,
1999.
TEXAS MICRO INC.
By: /s/ J. Michael Stewart
-----------------------
J. Michael Stewart
President, Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and directors of Texas Micro Inc. (the "Company") hereby constitutes and
appoints J. Michael Stewart and Kermit R. Sumrall, or either of them (with full
power to each of them to act alone), his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and on his
behalf and in his name, place and stead, in any and all capacities, to sign,
execute and file this Registration Statement under the Securities Act of 1933,
as amended, and any or all amendments (including, without limitation, post-
effective amendments), with all exhibits and any and all documents required to
be filed with respect thereto, with the Securities and Exchange Commission or
any regulatory authority, granting unto such attorneys-in-fact and agents, and
each of them acting alone, 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
in order to effectuate the same, as fully to all intents and purposes as he
himself might or could do if personally present, hereby ratifying and confirming
all that such attorneys-in-fact and agents, or any of them, or their substitute
or substitutes, may lawfully do or cause to be done.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934,
THIS REPORT HAS BEEN SIGNED BY THE FOLLOWING PERSONS ON BEHALF OF THE REGISTRANT
AND IN THE CAPACITIES AND ON THE DATES INDICATED.
Signature Title Date
/s/ J. Michael Stewart President, Chief Executive April 15, 1999
- --------------------------- Officer and Director
J. Michael Stewart (Principal Executive Officer)
/s/ Francis J. Hughes, Jr. Chairman of the Board April 15, 1999
- --------------------------- of Directors
Francis J. Hughes, Jr.
/s/ Kermit R. Sumrall Secretary and Acting Chief April 15, 1999
- --------------------------- Financial Officer
Kermit R. Sumrall (Principal Financial Officer)
/s/ Michael L. Baudler Controller April 15, 1999
- --------------------------- (Principal Accounting
Michael L. Baudler Officer)
/s/ Dean C. Campbell Director April 15, 1999
- ---------------------------
Dean C. Campbell
/s/ John F. Smith Director April 15, 1999
- ---------------------------
John F. Smith
/s/ A. Theodore Engkvist Director April 15, 1999
- ---------------------------
A. Theodore Engkvist
/s/ Dennis M. Malloy Director April 15, 1999
- ---------------------------
Dennis M. Malloy
/s/ Frank B. Ryan Director April 15, 1999
- ---------------------------
Frank B. Ryan
II-5
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Document
4.1 + Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the Company's 1994
Annual Report on Form 10-K, as amended by Form 10-K/A
(File No. 0-18238)).
4.2 + Certificate of Amendment of Restated Certificate of Incorporation
of the Company (incorporated by reference to the Company's 1995
Annual Report on Form 10-K filed September 25, 1995 (File
no. 0-18238)).
4.3 + Certificate of Amendment of Restated Certificate of Incorporation
of the Company (incorporation by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 30,
1997 filed May 12, 1997 (File no. 01-18238)).
4.4 + Amended and Restated By-Laws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Company's Registration Statement
on Form S-1 (File No. 33-33024)).
4.5 + Specimen Common Stock Certificate
5.1 * Opinion of Andrews & Kurth L.L.P.
23.1 * Consent of Andrews & Kurth L.L.P. (contained in Exhibit 5.1).
23.2 * Consent of PricewaterhouseCoopers LLP.
24.1 * Power of Attorney (set forth on the signature page contained in
Part II of this Registration Statement)
99.1 + Merger and Stock Purchase Agreement dated as of November 9, 1995
by and among the Company, Sequoia Acquisition Corporation, SPCO,
Inc. and Keystone International, Inc., as amended (incorporated
by reference from Exhibit 2.1 to the Company's Registration
Statement on Form S-4 (File No. 33-54777), filed on February 21,
1995).
99.2 + Amendment No. 1 to the Merger Agreement, dated as of February 7,
1995 (incorporated by reference from Exhibit 2.2 to the Company's
Registration Statement on Form S-4 (File No. 33-54777), filed on
February 21, 1995).
99.3 + Amendment No. 2 to the Merger Agreement, dated as of February 23,
1995 (incorporated by reference from Exhibit 2.3 to the Company's
Registration Statement on Form S-4/A (File No. 33-54777), filed
on February 24, 1995).
99.4 + Texas Micro Inc. 1996 Long Term Incentive Plan
__________________________________
+ Incorporated herein by reference.
* Filed herewith.
II-6
<PAGE>
EXHIBIT 5.1
April 15, 1999
Board of Directors
Texas Micro Inc.
5959 Corporate
Houston, Texas 77036
Gentlemen:
We have acted as counsel to Texas Micro Inc. (the "Company") in connection
with the Company's Registration Statement on Form S-8 (the "Registration
Statement") relating to the registration under the Securities Act of 1933, as
amended, of the issuance of up to an aggregate of 1,550,000 shares (the
"Shares") of the Company's common stock, par value $0.40 per share (the "Common
Stock"), pursuant to the Company's 1996 Long Term Incentive Plan (the "Plan").
In connection herewith, we have examined copies of such statutes,
regulations, corporate records and documents, certificates of public and
corporate officials and other agreements, contracts, documents and instruments
as we have deemed necessary as a basis for the opinion hereafter expressed. In
such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with the original documents of all documents submitted to us as copies. We have
also relied, to the extent we deem such reliance proper, on information supplied
by officers and employees of the Company with respect to various factual matters
material to our opinion.
Based on the foregoing and having due regard for such legal considerations
as we deem relevant, we are of the opinion that the Shares have been duly
authorized, and that such Shares will, when issued in accordance with the terms
of the Plans, be duly authorized, fully paid and validly issued.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
ANDREWS & KURTH L.L.P.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated August 25, 1998 appearing on page F-1
of Texas Micro Inc.'s Annual Report on Form 10-K for the year ended June 30,
1998. We also consent to the incorporation by reference of our report on the
Financial Statement Schedule, which appears on page F-14 of such annual report
on Form 10-K.
PRICEWATERHOUSECOOPERS LLP
Houston, Texas
April 15, 1999
