As filed with the Securities and Exchange Commission on May 16, 1996
Registration No. 33-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TMS, INC.
(Exact name of registrant as specified in its charter)
Oklahoma 91-1098155
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
206 West Sixth Avenue
P.O. Box 1358
Stillwater, Oklahoma 74074
(405) 377-0880
(Address, including zip code, of Principal Executive Offices)
TMS, INC. 1996 STOCK OPTION PLAN
--------------------------------
(Full title of the plan)
Copies to:
TMS, Inc. Douglas A. Branch, Esq.
206 West Sixth Avenue Phillips McFall McCaffrey McVay
Stillwater, Oklahoma 74074 & Murrah, P.C.
Telephone: (405) 377-0880 12th Floor, One Leadership Square
(Name, address, including zip code, 211 N. Robinson
and telephone number, including area Oklahoma City, Oklahoma 73102
code, of agent for service) Telephone: (405) 235-4100
Proposed Proposed
Title of each Amount maximum maximum Amount of
class of securities to be offering price aggregate registration
to be registered registered per share offering price fee
- ----------------------------------------------------------------------------
Common Stock, 1,468,377 $.53 $778,240.00 $268.36
$.05 par value
============================================================================
Pursuant to Rule 416(c) under the Securities Act of 1933, there
are also registered hereunder such additional indeterminate number of
shares as may be issued as a result of the antidilution provisions of
the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing information specified by Part I
of this Form S-8 Registration Statement (the "Registration
Statement") will be sent or given to participants in the Plan
listed on the cover of the Registration Statement (the "Plan") as
specified in Rule 428(b)(1) promulgated by the Securities and
Exchange Commission (the "Commission") under the Securities Act
of 1933 (the "1933 Act"). Such document(s) are not being filed
with the Commission but constitute (along with the documents
incorporated by reference into the Registration Statement
pursuant to Item 3 of Part II hereof), a prospectus that meets
the requirements of Section 10(a) of the 1933 Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by TMS, Inc. (the "Regis
trant") with the Commission are hereby incorporated by reference
in this Registration Statement:
(a) The Registrant's Form 10-K Annual Report, as filed
pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), for the fiscal year ended
August 31, 1995;
(b) All other reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Exchange Act since the end of the
fiscal year covered by the annual report referred to in (a)
above;
(c) The description of the Registrant's common stock, par
value $.05 per share (the "Common Stock"), contained in the
Registrant's Registration Statement on Form 10 as filed with the
Commission on January 17, 1990, including any amendment to such
registration statement or report filed for the purpose of
updating such description; and
(d) All documents, reports and definitive proxy statements
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, which are filed subsequent to the date
hereof and prior to the filing of a post-effective amendment
which indicates the termination of the offering made hereby.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Bylaws of the Registrant provide that directors and
officers of the Registrant may be indemnified by the Registrant
for acts taken by such persons while acting in their capacities
as officers or directors of the Registrant to the extent that any
such acts were taken in good faith and the officer or director
reasonably believed the acts to be in or not opposed to the best
interests of the Registrant, and, with respect to criminal action
or proceedings, the officer or director had no reasonable cause
to believe his conduct was unlawful. Insofar as indemnification
for liabilities arising under the 1933 Act may be permitted
pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the 1933
Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following are exhibits to the Form S-8 Registration
Statement.
Exhibit No. Name of Exhibit
4 Form of Stock Certificate, incorporated by
reference to Exhibit 4.1 to the Registrant's
Amendment No. 1 to Form S-4 Registration
Statement (No. 33-64649) as filed with the
Commission on January 23, 1996.
5 Opinion of Phillips McFall McCaffrey McVay &
Murrah, P.C.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Phillips McFall McCaffrey McVay &
Murrah, P.C.
99 TMS, Inc. 1996 Stock Option Plan.
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 1933 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.
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 20% change in the maximum offering price set
forth in the "Calculation of Registration Fee" table in
the effective 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 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 1933 Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securi
ties 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 1933 Act, each
filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applica
ble, 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 the time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising
under the 1933 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 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
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 requirement for filing on Form S-
8 and has duly caused this Form S-8 Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Stillwater, Oklahoma, on this 16th day
of May, 1996.
TMS, INC.
By: /s/ Maxwell Steinhardt
-----------------------------
Maxwell Steinhardt,
Chief Executive Officer
and President
By: /s/ Dale E. May
-----------------------------
Dale E. May, Vice President,
Finance and Administration
Know all men by these presents, that each person whose
signature appears below constitutes and appoints Maxwell
Steinhardt as his true and lawful 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 or post-effective amendment 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 the 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, 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 dates indicated.
Signature Title Date
/s/ Maxwell Steinhardt Chairman of the May 16, 1996
- --------------------------- Board of Directors,
Maxwell Steinhardt Chief Executive
Principal Executive Officer Officer and
President
/s/ Dale E. May Vice President, May 16, 1996
- --------------------------- Finance and
Dale E. May Administration
Principal Financial and
Accounting Officer
/s/ Deborah D. Mosier Controller May 16, 1996
- ---------------------------
Deborah D. Mosier
Controller
* Director May 16, 1996
- ---------------------------
Dana R. Allen
* Director May 16, 1996
- ---------------------------
James R. Rau, M.D.
* Director May 16, 1996
- ---------------------------
Marshall C. Wicker
*By:/s/ Maxwell Steinhardt
-----------------------
Maxwell Steinhardt
Attorney-in-Fact
EXHIBIT INDEX
Exhibit Name of Exhibit Place at Which it Appears
No. In Sequentially Numbered
Pages
4 Form of Stock Certificate. Incorporated by reference
to Exhibit 4.1 to the
Registrant's Amendment No.
1 to Form S-4 Registration
Statement (No. 33-64649),
as filed with the
Commission on January 23,
1996.
5 Opinion of Phillips McFall
McCaffrey McVay & Murrah,
P.C.
23.1 Consent of KPMG Peat
Marwick LLP.
23.2 Consent of Phillips McFall
McCaffrey McVay & Murrah,
P.C.
99 TMS, Inc. 1996 Stock
Option Plan
Exhibit 5
May 16, 1996
TMS, Inc.
206 West Sixth Ave.
P.O. Box 1358
Stillwater, Oklahoma 74074
Re: TMS, Inc. ("Company")
Form S-8 Registration Statement\
Our File No. 63988.00101
------------------------
Gentlemen:
We have acted as counsel to the Company in connection with
the preparation of the Registration Statement on Form S-8 (the
"Registration Statement"), to be filed by the Company with the
Securities and Exchange Commission (the "Commission"), relating
to 1,468,377 shares of the Company's common stock, $.05 par value
(the "Common Stock"), issuable under the Company's 1996 Stock
Option Plan (the "Plan").
Based on the foregoing, we are of the opinion that the
shares of Common Stock to be issued under the Plan are validly
authorized and, upon issuance in accordance with the terms of the
Plan, will be legally issued, fully paid and nonassessable.
We are members of the bar of the State of Oklahoma and do
not hold ourselves out as experts on, or as generally familiar
with, or qualified to express opinions under law other than the
law of the State of Oklahoma and the law of the United States and
the opinion given herein is limited thereto.
Very truly yours,
PHILLIPS MCFALL MCCAFFREY MCVAY
& MURRAH, P.C.
/s/ Phillips McFall McCaffrey McVay &
Murrah, P.C.
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENTS
The Board of Directors and Stockholders
TMS, Inc.:
We consent to the use of our report contained in TMS, Inc.'s
1995 annual report on Form 10-K incorporated herein by reference.
KPMG Peat Marwick LLP
Oklahoma City, Oklahoma
May 16, 1996
Exhibit 23.2
CONSENT OF COUNSEL
Phillips McFall McCaffrey McVay & Murrah, P.C., hereby
consents to the filing of its opinion of counsel as an exhibit to
the Form S-8 Registration Statement filed by TMS, Inc.
PHILLIPS MCFALL MCCAFFREY MCVAY & MURRAH, P.C.
/s/ Phillips McFall McCaffrey McVay & Murrah, P.C.
Oklahoma City, Oklahoma
May 16, 1996
Exhibit 99
TMS, INC. 1996 STOCK OPTION PLAN
1. Purpose. The purposes of the TMS, Inc. 1996 Stock
Option Plan are to comply with the Company's obligations under
the Amended Plan of Reorganization and Agreement of Merger (the
"Merger Agreement"), dated November 7, 1995, by and among the
Company, SCC Acquisition Corp., and Sequoia Computer Corporation,
a California corporation ("Sequoia"), as described herein, as
well as to enable the Company to retain the services of key
employees and consultants of Sequoia, and to provide them with
increased motivation and incentive to exert their best efforts on
behalf of their employer by enlarging their personal stake in
their employer's success.
2. Definitions. As used in the Plan, the following
definitions apply to the terms indicated below:
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Committee" means the committee appointed by the Board
from time to time to administer the Plan pursuant to Section 4
hereof.
"Company" means TMS, Inc., an Oklahoma corporation.
"Effective Date" shall mean the date which the Merger
Agreement shall become effective under the terms thereof.
"Merger Agreement" shall have the meaning given such
term in Section 1.
"Option" means a right to purchase Shares under the
terms and conditions of the Plan as evidenced by a Sequoia Option
Agreement which had been entered into by and between Sequoia and
the Participant prior to the date of the Merger Agreement.
"Participant" means an employee, former employee,
consultant or former consultant of Sequoia who was granted an
Option(s) prior to the date of the Merger Agreement.
"Plan" means the TMS, Inc. 1996 Stock Option Plan,
including any amendments thereto.
"Sequoia" shall have the meaning given such term in
Section 1.
"Sequoia Common Stock" shall mean shares of common
stock, no par value, of Sequoia.
"Sequoia Option Agreement" shall mean the written
agreement between Sequoia and the Participant wherein the
Participant was granted the right to purchase shares of Sequoia
Common Stock under the terms and conditions specified therein.
"Shares" means shares of the Company's common stock,
$.05 par value, now or hereafter owned by the Company as treasury
stock or authorized but unissued shares of the Company's common
stock, subject to adjustment as provided in the Plan.
3. Plan Adoption and Term.
A. The Plan shall become effective upon the Effective
Date of the Merger Agreement.
B. Subject to the provisions hereinafter contained
relating to amendment or discontinuance, the Plan shall continue
in effect for ten (10) years from the date of its adoption by the
Board.
4. Administration of the Plan. The Plan shall be
administered by the Committee, consisting of not less than three
(3) persons, who shall be directors of the Company, and who shall
be appointed by the Board to serve at the pleasure of the Board.
Except as otherwise expressly provided in the Plan, the Committee
shall have sole and final authority to interpret the provisions
of the Plan and to promulgate and interpret such rules and
regulations relating to the Plan and Options as it may deem
necessary or desirable for the administration of the Plan. The
Committee may correct any defect in the Plan in the manner and to
the extent it shall deem expedient to carry the Plan into effect
and shall be the sole and final judge of such expediency.
No member of the Committee shall be liable for any
action taken or omitted or any determination made by him in good
faith relating to the Plan, and the Company shall indemnify and
hold harmless each member of the Committee and each other
director or employee of the Company to whom any duty or power
relating to the administration or interpretation of the Plan has
been delegated against any cost or expense (including counsel
fees) or liability (including any sum paid in settlement of a
claim with the approval of the Committee) arising out of any act
or omission in connection with the Plan, unless arising out of
such person's own fraud or bad faith.
5. Eligibility. Only those persons who are directors,
former directors, employees, former employees, consultants or
former consultants of Sequoia who were granted Options prior to
the date of the Merger Agreement, shall be eligible to
participate in the Plan. The determination of eligibility for
participation in the Plan is in the sole discretion of the
Committee. No other persons shall be eligible to receive
Options.
6. Stock Subject to the Plan. The number of shares
subject to Options under the Plan shall not exceed 1,468,377
Shares. If, prior to the termination of the Plan, an Option
shall expire or terminate for any reason without having been
exercised in full, the unpurchased Shares subject thereto shall
not again be available for the purposes of the Plan.
7. Options.
A. Except as set forth herein and in the Merger
Agreement, each Option shall have the same terms and conditions
as set forth in the Sequoia Option Agreement relating to such
Option. The Company shall not, however, be required to honor
terms of Options for which compliance is impossible, would impose
unreasonable burdens on the Company, or would be contrary to law
or regulation.
B. Each Option shall entitle the Participant to
purchase 2.837 Shares for each share of Sequoia Common Stock
subject to purchase under the terms of such Participant's Sequoia
Option Agreement.
C. No Option shall entitle the holder, upon exercise
of the Option, to receive certificates nor scrip for fractional
Shares. The number of Shares subject to any Option will be whole
Shares, taking into account any fractional shares created by
reason of Section 7.B by rounding down to the next lowest number
if such fraction is less than .5 and rounding up to the next
highest number if such fraction is .5 or greater.
D. No Option granted shall be an incentive stock
option, as such term is defined under Section 422 of the Code.
8. Option Price. The price per share at which Shares may
be purchased pursuant to any Option shall be equal to 35.24% of
the exercise price per share of Sequoia Common Stock as provided
in the terms of the Sequoia Option Agreement respecting such
Option.
9. Duration of Options. No Option granted hereunder shall
be exercisable after the expiration of the term of the Sequoia
Option Agreement relating to such Option. All Options shall be
subject to earlier termination as provided in the Sequoia Option
Agreement.
10. No Employment Rights. Nothing contained in the Plan or
any Option shall confer upon any Participant any right with
respect to the continuation of, or establishment of, employment
by Sequoia or interfere in any way with the right of the Company
or Sequoia, subject to the terms of any separate employment
agreement to the contrary, at any time to terminate such
employment or to increase or decrease the compensation of the
Participant from the rate in existence at the time of the grant
of an Option.
11. Rights of a Shareholder. No person shall have any
rights with respect to any Shares covered by or relating to any
grant hereunder of an Option until the date of issuance of a
certificate to him evidencing such Shares. Except as otherwise
expressly provided in the Plan, no adjustment to any Option shall
be made for dividends or other rights for which the record date
occurs prior to the date such certificate is issued.
12. Adjustment Upon Changes in Capital Stock.
A. If the capital stock of the Company shall be
subdivided or combined, whether by reclassification, stock
dividend, stock split, reverse stock split or other similar
transaction, then the number of Shares authorized under the Plan,
the number of Shares then subject to or relating to unexercised
Options granted hereunder and the exercise price per Share will
be adjusted only to the extent required under any Sequoia Option
Agreements. A stock dividend shall be treated as a subdivision
of the whole number of Shares equal to such whole number of
Shares so outstanding plus the number of Shares issued as a stock
dividend, if a stock dividend is an event requiring adjustment
under a Sequoia Option Agreement.
B. Except as expressly set forth herein, the number
and kind of Shares subject to Options shall not be affected by
any transaction (including, without limitation, any merger,
recapitalization, stock split, stock dividend, issuance of stock
or similar transaction) affecting the capital stock of the
Company and no Participant shall be entitled to any additional
Options on account thereof.
13. Withholding Taxes.
A. Whenever Shares are to be issued upon the exercise
of an Option, the Company shall have the right to require the
Participant to remit to the Company in cash an amount sufficient
to satisfy federal, state and local withholding tax requirements,
if any, prior to the delivery of any certificate or certificates
for such Shares.
B. Notwithstanding Paragraph A of this Section 13, at
the election of a Participant, subject to the approval of the
Committee, when Shares are to be issued upon the exercise of an
Option, the Participant may tender to the Company a number of
Shares, or the Company shall withhold a number of such shares,
the Fair Market Value of which is sufficient to satisfy the
federal, state and local tax requirements, if any, attributable
to such exercise or occurrence. The Committee hereby grants its
approval to any election made pursuant to this Paragraph B, but
reserves the right, in its absolute discretion, to withdraw such
approval in case of any such election effective upon its delivery
of notice thereof to the Participant.
14. Amendment of the Plan. The Board may at any time and
from time to time suspend, discontinue, modify or amend the Plan
in any respect whatsoever except that the Board may not suspend,
discontinue, modify or amend the Plan so as to adversely affect
the rights of a Participant under the terms of the Participant's
Sequoia Option Agreement, without such Participant's approval.
15. Miscellaneous.
A. It is expressly understood that the Plan grants
powers to the Committee but does not require their exercise; nor
shall any person, by reason of the adoption of the Plan, be
deemed to be entitled to the grant of any Option; nor shall any
rights be deemed to accrue under the Plan except as Options may
be granted hereunder.
B. All rights hereunder shall be governed by and
construed in accordance with the laws of Oklahoma.
