As filed with the Securities and Exchange Commission on August 11, 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
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TADEO HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-4228470
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5 Hanover Square, New York, NY 10004
(Address of principal executive offices) (Zip Code)
1992 EMPLOYEE INCENTIVE STOCK OPTION PLAN
1997 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the plans)
Alexander Kalpaxis
Executive Vice President
Tadeo Holdings, Inc.
5 Hanover Square
New York, NY 10004
(Name and address of agent for service)
(212) 271-8511
(Telephone number, including area code, of agent for service)
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Copy to:
Peter W. Rothberg, Esq.
Nixon Peabody LLP
437 Madison Avenue, New York, New York 10022
Telephone No.: (212) 940-3106/Facsimile No.: (212) 940-3111
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<TABLE>
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
Proposed maximum Proposed maximum
Title of securities Amount to be Offering price Aggregate offering Amount of
to be registered registered (1) Per share (2) price (2) registration fee
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<S> <C> <C> <C> <C>
Common Stock, $.0001 par value 800,000 shares $ 3.25 $2,600,000 $723.00
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</TABLE>
(1) Represents (i) 500,000 shares issuable upon the exercise of options
granted or to be granted under the 1992 Employee Incentive Stock Option Plan,
(ii) 300,000 shares issuable upon the exercise of options granted or to be
granted under the 1997 Stock Option Plan for Non-Employee Directors, and (iii)
pursuant to Rule 416(a) of the Securities Act of 1933, such indeterminate number
of shares as may be issued by reason of any stock split, stock dividend,
recapitalization or similar transaction effected without the receipt of
consideration which results in an increase in our number of outstanding shares
of common stock.
(2) Estimated in accordance with Rule 457(c) under the Securities Act
of 1933 solely for the purpose of calculating the registration fee. The
computation is based upon the average of the high and low prices of our common
stock as reported on the Nasdaq Stock Market's Small Cap Market on August 6,
1999.
<PAGE>
PART I.
INFORMATION REQUIRED IN THE 10(a) PROSPECTUS
Item 1. Plan Information.
STOCK OPTION PLANS
1992 Employee Stock Incentive Option Plan
Our 1992 Employee Incentive Stock Option Plan (the "1992 Plan") was
approved by the Company's Board of Directors and stockholders in June 1992, and
the 1992 Plan terminates in June 2002. Options granted under the 1992 Plan may
include those qualified as incentive stock options under Section 422A of the
Internal Revenue Code of 1986, as amended, as well as non-qualified options. Our
employees and employees of our subsidiaries, as well as other individuals, such
as outside directors, who provide necessary services to the Company, are
eligible to participate in the 1992 Plan. Non-employees and part-time employees
may receive only non-qualified stock options. The maximum number of Shares of
Common Stock for which options may be granted under the 1992 Plan is 500,000
shares.
The 1992 Plan is administered by a Stock Option Plan Committee of the
Board of Directors (the "Option Committee") consisting of not less than two (2)
members of the Board of Directors. The Option Committee presently consists of
Messrs. Testaverde and Linesch. The Option Committee has wide latitude in
determining the recipients of 1992 Plan options and numerous other terms and
conditions of such options. Any person who is a member of the Option Committee
cannot receive incentive options under the Plan.
The exercise price for shares purchased upon the exercise of
non-qualified options granted under the 1992 Plan is determined by the
Committee, but cannot be less than 85% of the fair market value of the Common
Stock on the date of option grant. The exercise price of an incentive stock
option granted under the 1992 Plan must be at least equal to the fair market
value of the Common Stock on the date such option is granted (110% of the fair
market value for stockholders who, at the time the option is granted, own more
than 10% of the total combined classes of stock of the Company or any
subsidiary). Fair market value is based upon the closing sale price for a share
of our Common Stock on the date of option grant. No employee may be granted
incentive stock options under the 1992 Plan, in any single year, to acquire
shares having an aggregate fair market value determined as of the dates of grant
in excess of $100,000.
No option granted under the 1992 Plan can have a term of more than ten
years (five years for 10% or greater stockholders). The 1992 Plan options may be
exercised by employees generally only if the option holder remains continuously
associated with the Company or a subsidiary from the date of grant to the date
of exercise. However, 1992 Plan options may be exercised following termination
of employment, or following the death or disability of an employee, within
certain specified periods. Options granted under the 1992 Plan can be exercised
(i) by paying the specified exercise price in cash, or (ii) by the surrender of
shares of Common Stock of the Company, valued at their then fair market value,
equaling in value such exercise price.
Additional information about the 1992 Plan can be obtained by
contacting Michael Niles, Controller of the Company, at telephone number (540)
982-7199, or by writing to P.O. Box 18036, Roanoke, VA 24014-3412.
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1997 Stock Option Plan for Non-Employee Directors.
The Company established the 1997 Stock Option Plan for Non-Employee
Directors (the "Directors Plan") on November 21, 1997, and the Directors Plan
was approved by stockholders in January 1998. The Directors Plan terminates in
January 2008. The purpose of the Directors Plan is to provide additional
incentive to the non-employee directors of the Company who share a significant
role in and responsibility for guiding management's planning for the growth of
the Company. Under the Directors Plan, which is administered by a committee of
the Company's Board of Directors the members of which are not eligible to
participate in the Directors Plan (the "Committee"), each eligible Non-Employee
Director will be granted non-qualified options to acquire 10,000 shares of the
Company's Common Stock on the date following approval of the Directors Plan by
the Company's stockholders, and on each succeeding July 1 upon which such
Non-Employee Director is an existing member of the Company's Board of Directors
(or the first succeeding business day thereafter on which the Common Stock is
traded on the principal securities exchange on which it is listed). Alexander
Kalpaxis is currently the sole member of the Committee. There are 300,000 shares
of Common Stock reserved for issuance pursuant to options granted under the
Directors Plan. The exercise price per share of Common Stock for which each
option is exercisable shall be the average of the closing bid and asked prices
of the stock (or the closing sale price of the stock if traded on a national
securities exchange) as generally reported for the principal securities market
on which the Company's Common Stock is listed. Each option granted under the
Directors Plan shall be fully exercisable on the date of option grant. Each
option granted under the Plan shall expire five years from the date of grant,
and shall be subject to earlier termination in the event of the termination of
service on the Board by the holder of any option granted under the Directors
Plan, other than by reason of mandatory retirement, permanent disability or
death. Upon such termination the then outstanding options of such holder shall
be exercisable only to the extent that they were exercisable on the date of such
termination and shall expire in three months, or on their stated expiration
date, which ever occurs first. In the event of termination of service by reason
of mandatory retirement pursuant to Board policy or permanent disability of the
holder of any option, each of such holder's then outstanding options granted
under the Director's Plan will continue to become exercisable in accordance with
the terms set forth above, but the holder shall be entitled to exercise such
options (including any portions that become exercisable after termination)
within three years of such terminations. In no event shall any affected option
be exercisable after its expiration date. In the event of the death of the
holder of any option, each of the then outstanding options of such holder shall
become immediately exercisable in full, and shall be exercisable by the holder's
legal representative at any time within a period of three years after death. In
no event shall any affected option be exercisable after its expiration date.
However, if the holder dies within two years following termination of service on
the Board by reason of mandatory retirement or permanent disability, any option
granted under the Directors Plan shall be exercisable only until the earlier of
(x) the later of (i) one year after the holder's death, or (ii) two years after
such termination, or (y) the expiration date of the option. The option exercise
price shall be paid in cash and the cash price can be paid with the proceeds of
a loan from the Company to the participant for such purpose, or by the surrender
of shares of Common Stock of the Company, valued at their fair market value on
the date of exercise, or by any combination of cash and such shares.
Additional information about the Directors Plan can be obtained by
contacting Michael Niles, Controller of the Company, at telephone number (540)
982-7199, or by writing to P.O. Box 18036, Roanoke, VA 24014-3412.
Item 2. Registrant Information and Plans Information.
All persons granted 1992 Plan options under the 1992 Plan, or Directors
Plan options under the Directors Plan may, upon written or oral request, without
charge, obtain copies of all documents incorporated by reference in this
Registration Statement, and those documents are incorporated by reference in
this
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Prospectus and the Registration Statement of which it is a part. Such
personas may also, upon written or oral request, without charge, obtain copies
of all documents required to be delivered to Company employees pursuant to Rule
428(b) promulgated by the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"). Any request
for such documents should be addressed to Michael Niles, Controller, Tadeo
Holdings, Inc., P.O. Box 18036, Roanoke, VA 24014-3412; telephone number (540)
982-7199.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(i) The Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1998;
(ii)The Company's Proxy Statements for its Annual Meeting of
Stockholders held April 1, 1999;
(iii) The Company's Current Reports on Form 8-K filed on: September
16, 1998; November 12, 1998; April 7, 1999 and July 30, 1999;
(iv)The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended September 30, 1998, December 31, 1998 and March 31,
1999; and
(iv)The description of the Company's Common Stock, par value $.0001
per share, contained in the Prospectus dated December 10, 1992, forming
a part of the Company's Registration Statement on Form S-1
(Registration No. 33-50426) filed with the Commission pursuant to Rule
424(b) on December 14, 1992.
In addition to the foregoing, all documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment indicating that all securities offered hereunder have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof form the date of filing of such documents. Any statement contained in a
document incorporated by reference in this Registration Statement 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 subsequently filed
document that is also incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
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<PAGE>
Item 5. Interests of Named Experts and Counsel.
The validity of the securities offered hereby will be passed upon by
Nixon Peabody LLP, New York, NY, counsel for Tadeo Holdings, Inc. Certain
attorneys with Nixon Peabody LLP currently have beneficial ownership, in the
aggregate, of less than one percent of the Company's Common Stock.
Item 6. Indemnification of Directors and Officers.
Article Seventh of the Certificate of Incorporation of the Registrant
specifically provides that no director of the Registrant shall be personally
liable to the Registrant or any or its shareholders for damages for any breach
of duty in such capacity except if a judgment or other final adjudication
adverse to him establishes that his acts or omissions were in bad faith or
involved intentional misconduct or a knowing violation of the law, or that he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled, or that his acts violated specific provisions of the
Delaware General Corporation Law. Article Ninth of the Certificate of
Incorporation of the Registrant provides that the Registrant enjoys all of the
general or specific powers or rights conferred under the Delaware General
Corporation Law to furnish indemnification to the directors and officers of the
Registrant, and that such directors and officers enjoy all rights of
indemnification as are conferred upon persons serving in such capacity under the
Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 - - 1992 Employee Incentive Stock Option Plan (Incorporated by
reference, filed as an exhibit to Amendment No. 1 to the Registrant's
Registration Statement on Form S-1 filed on October 13, 1992).
4.2 - - 1997 Stock Option Plan for Non-Employee Directors (Incorporated
by reference to the Company's Proxy Statement for its 1998 Annual Meeting of
Stockholders held January 19, 1998).
5.1 - - Opinion of Nixon Peabody LLP
24.1 - - Consent of Feldman Sherb Horowitz & Co., P.C.
24.2 - - Consent of Nixon Peabody LLP (included in Exhibit 5.1).
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, as amended (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, represent a fundamental
change in the information set forth in the registration
statement;
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<PAGE>
(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 (1)(i) and (1)(ii) do not apply if the
registration statement is on From 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 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 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 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 provision, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event 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 of the registrant, 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 New York, State of New York on August 9, 1999.
TADEO HOLDINGS, INC.
By:/s/Alexander Kalpaxis
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Alexander Kalpaxis,
Executive Vice President
Name Title Date
---- ----- ----
President, Chief Executive August 9, 1999
-------------------- Officer and Director (Principal
Brian Bookmeier Executive Officer)
/s/Michael Niles
-------------------- Secretary, Controller and August 9, 1999
Michael Niles Acting Chief
Accounting and Chief
Financial Officer
/s/Alexander Kalpaxis
--------------------- Executive Vice President, August 9, 1999
Alexander Kalpaxis and Director
/s/Damon Testaverde
--------------------- Director August 9, 1999
Damon Testaverde
/s/James Linesch
--------------------- Director August 9, 1999
James Linesch
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EXHIBIT 5.1
OPINION OF NIXON PEABODY LLP
437 Madison Avenue
New York, New York 10022-7001
(212) 940-3000
Fax: (212) 940-3111
Direct Dial: (212) 940-3000
August 9, 1999
Tadeo Holdings, Inc.
5 Hanover Square
New York, New York 10004
Ladies and Gentlemen:
We have acted as counsel to Tadeo Holdings, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") to be filed by the Company on August 11,
1999 with the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "Act"), for the purpose of registering
with the SEC an aggregate of 800,000 shares (the "Shares") of common stock of
the Company, par value $.0001 per share (the "Common Stock"), consisting of: (1)
500,000 shares to be issued as awards pursuant to the Company's 1992 Employee
Incentive Stock Option Plan (the "Employee Stock Plan"); and (2) 300,000 shares
to be issued as awards pursuant to the Company's 1997 Stock Option Plan for
Non-Employee Directors (the "Directors Plan", and together with the Employee
Stock Plan, the "Plans").
This opinion is being delivered to you in connection with the
Registration Statement.
In connection with the foregoing, we have examined, among other
documents, copies of the following: (i) the Registration Statement, (ii) the
Certificate of Incorporation of the Company, as amended to the date hereof,
(iii) the By-Laws of the Company, as amended to the date hereof, and (iv) the
Plans. We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records of the Company,
agreements and such other instruments and certificates of officers of the
Company, and have made such investigations of law, as, in our experience, are
necessary or appropriate as a basis for the opinions expressed below.
As to questions of fact material to our opinions expressed herein, we
have, when relevant facts were not independently established, relied upon
certificates of, and information received from, the Company and/or
representatives of the Company. We have made no independent investigation of the
facts stated in such certificates or as to any information received from the
Company and/or representatives of the Company and do not opine as to the
accuracy of such factual matters. We also have relied, without investigation,
upon certificates and other documents from, and conversations with, public
officials.
In addition, we have assumed that, at or prior to the time of issuance
and sale of any of the Shares: (i) no stop order shall have been issued in
respect of the Registration Statement, (ii) there shall not have occurred, since
the date of this opinion, any change in law affecting the validity of the Shares
or the
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<PAGE>
Tadeo Holdings, Inc.
5 Hanover Square
New York, New York 10004
ability or the capacity of the Company to issue any of the Shares, and (iii) the
Company shall not have effected any material change to its Certificate of
Incorporation or By-Laws or the Plans.
Members of our firm involved in the preparation of this opinion are
licensed to practice law in the State of New York and we do not purport to be
experts on, or to express any opinion herein concerning, the laws of any
jurisdiction other than the laws of the State of New York and the corporate
governance laws of the State of Delaware provided under the Delaware General
Corporation Law.
Based upon and subject to the foregoing, and the other qualifications
and limitations contained herein, and after (a) the Registration Statement has
become effective under the Act and assuming that such effectiveness remains in
effect throughout the period during which shares of Common Stock are issued
pursuant to the Plans, (b) the shares of Common Stock to be issued pursuant to
the Plans have, if required, been duly qualified or registered, as the case may
be, for sale under applicable state securities laws and all applicable
securities laws are complied with, (c) all necessary action by the shareholders
of the Company and the Board of Directors or a duly designated committee of the
Board of Directors of the Company shall have been taken to duly authorize the
Plans and the issuance of options, other rights and Common Stock to be issued
pursuant to the Plans (the "Corporate Action"), and (d) the options, other
rights and shares of Common Stock to be issued pursuant to the Plans have been
delivered pursuant to and in accordance with the terms of the Plans and related
agreements and instruments against payment therefor in accordance with the terms
of the relevant Corporation Action, the Plans and related agreements and
instruments, we are of the opinion that the 500,000 shares of Common Stock to be
issued pursuant to the Employee Stock Plan and the 300,000 shares of Common
Stock to be issued pursuant to the Directors Plan, will have been duly
authorized, validly issued, fully paid and non-assessable subject to the
provisions of the Delaware General Corporation Law.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the SEC.
We further consent to the filing of this opinion as an exhibit to
applications to the securities commissioners of the various states of the United
States of America, to the extent so required, in connection with the
registration of the shares of Common Stock.
This opinion is limited to the matters stated herein, and no opinion or
belief is implied or may be inferred beyond the matters expressly stated herein.
The opinions expressed herein are rendered as of the date hereof, and we
disclaim any undertaking to advise you of changes in law or fact which may
affect the continued correctness of any of our opinions as of a later date.
We wish to advise you that Nixon Peabody LLP and certain attorneys with
Nixon Peabody LLP have beneficial ownership of certain shares of the Company's
Common Stock.
Very truly yours,
/s/ Nixon Peabody LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the use in this Registration Statement on Form S-8 of our report
dated October 7, 1998, relating to the consolidated financial statements of
Tadeo Holdings, Inc. and subsidiaries as of June 30, 1998 and 1997, and for each
of the years in the three-year period ended June 30, 1998.
/s/Feldman Sherb Horowitz & Co., P.C.
Feldman Sherb Horowitz & Co., P.C.
Certified Public Accountants
New York, New York
August 9, 1999
