As filed with the Securities and Exchange Commission on July 23, 2001.
Registration No. 333-________
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 Identification No.)
incorporation or organization)
206 West Sixth Avenue
P.O. Box 1358 Stillwater, Oklahoma 74074
(Address of Principal Executive Offices) (Zip Code)
TMS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Deborah D. Mosier
President
206 West Sixth Avenue
Stillwater, Oklahoma 74074
(Name and address of agent for service)
(405) 377-0880
(Telephone number, including area code, of agent for service)
Copies to:
Douglas A. Branch, Esq.
Phillips McFall McCaffrey McVay & Murrah, P.C.
12th Floor, One Leadership Square
211 North Robinson
Oklahoma City, Oklahoma 73102
(405) 235-4100
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
maximum maximum
Amount offering aggregate Amount
Title of Securities to to be price per offering registration
be registered Registered share price fee
- ----------------------------------------------------------------------------------
Common Stock, $.05 par value 1,000,000 shares $.1615 $161,500 $40.38
==================================================================================
(1) Estimated solely for the purposes of calculating the amount of the
registration fee pursuant to Rule 457(h)(1). The proposed maximum offering price
per share and aggregate offering price are based upon 85% of the average of the
bid and ask prices of the shares as of July 18, 2001, as reported on the NASD
Non-NASDAQ OTC Bulletin Board.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
TMS, Inc. (the "Registrant") will send or give to all participants in the TMS,
Inc. Employee Stock Purchase Plan (the "Purchasers"), the document(s) containing
information specified by Part I of this Form S-8 registration statement as
specified in Rule 428(b)(1) promulgated by the Securities and Exchange
Commission under the Securities Act of 1933. The Registrant has not filed such
document(s) with the Commission, but such documents (along with the document
incorporated by reference into this registration statement pursuant to Item 3 of
Part II hereof) shall constitute 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 previously filed by the Registrant with the
Securities and Exhange Commission are hereby incorporated by reference in this
registration statement:
(a) The Registrant's annual report on Form 10-KSB filed pursuant to
Section 13(a) or 15(d) of the Securities and Exchange Act of
1934, as amended (the "Exchange Act"), for the fiscal year ended
August 31, 2000;
(b) All other reports filed by the Registrant pursuant to Sections
13(a) 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.
(d) All reports or other documents subsequently filed by the
Registrant with the Commission pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing
date of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such
reports and documents.
Any statement contained in a 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 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.
2
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Registrant's Bylaws 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 Registrant to the
extent that any such acts were taken in good faith and the officer or director
reasonably believed that 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 this Form S-8 registration statement.
Exhibit Name of Exhibit
------- ---------------
4.1 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.
4.2 TMS, Inc Employee Stock Purchase Plan (filed
electronically herewith).
5.1 Opinion of Phillips McFall McCaffrey McVay & Murrah, P.C.
(filed electronically herewith).
23.1 Consent of KPMG LLP (filed electronically herewith).
23.2 Consent of Phillips McFall McCaffrey McVay & Murrah, P.C.
(filed electronically herewith).
24.1 Power of Attorney (included as part of the Signature
Page).
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this registration
statement to;
(i) Include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events
which, individually or together, represent a
fundamental change in the information 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 on the plan of distribution.
3
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall 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) For determining liability under the Securities Act, treat
each such post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time to be the
initial bona fide offering.
(3) File a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the offering.
(b) 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 Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit 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) 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 Securities and Exchange 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.
4
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 Stillwater, State of Oklahoma, on the 23rd day of
July, 2001.
TMS, INC.
By: /s/ Deborah D. Mosier
-------------------------------
Deborah D. Mosier
President
By: /s/ Kent Warkentin
-------------------------------
Kent Warkentin
Controller
Know all persons by these presents, that each person whose signature
appears below constitutes and appoints Deborah D. Mosier his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
amendments to this Form S-8, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact and
agents, or her substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ Deborah D. Mosier President July 23, 2001
- ------------------------------------------
Deborah D. Mosier
Principal Executive and Financial Officer
/s/ Kent Warkentin Controller July 23, 2001
- ------------------------------------------
Kent Warkentin
Principal Accounting Officer
/s/ Russell W. Teubner Chairman of the July 23, 2001
- ------------------------------------------ Board of Directors
Russell W. Teubner
/s/ Rudy J. Alvarado Director July 23, 2001
- ------------------------------------------
Rudy J. Alvarado
/s/ Doyle E. Cherry Director July 23, 2001
- ------------------------------------------
Doyle E. Cherry
/s/ Dr. James R. Rau, M.D. Director July 23, 2001
- ------------------------------------------
Dr. James R. Rau, M.D.
/s/ Marshall C. Wicker Director July 23, 2001
- ------------------------------------------
Marshall C. Wicker
5
Exhibit 4.2
TMS, INC.
EMPLOYEE STOCK PURCHASE PLAN
The TMS, Inc. Employee Stock Purchase Plan (the "Plan") is intended to
provide the eligible employees of TMS, Inc. (the "Company") and its qualifying
subsidiaries a convenient means of purchasing shares of the Company's common
stock, par value $.05 per share (the "Stock"). The Plan is intended to qualify
as an "employee stock purchase plan" under Section 423 of the Internal Revenue
Code of 1986, as amended (the "Code"), and shall be administered, interpreted
and construed in a manner consistent with the requirements of that section of
the Code.
ARTICLE I
DEFINITIONS
===========
1.1. "Account" means the book keeping account established on behalf
of each participant by the Administrator to record payroll deduction
contributions made by such Participant and shares of Stock purchased on his
behalf.
1.2. "Administrator" means the individual or committee appointed
pursuant to Article VIII to administer the Plan.
1.3. "Board" means the Board of Directors of the Company.
1.4. "Business Day" means each day on which the Exchange (as defined in
Section 4.2) is open for business.
1.5. "Compensation" means all regular salary, wages or earnings,
including but excluding overtime, commissions, bonuses, amounts realized from
the exercise of a qualified or non-qualified stock option and other special
incentive payments, fees or allowances.
1.6. "Effective Date" means August 1, 1999, subject to the provisions
of Section 9.8 of the Plan.
1.7. "Employee" means any person who is employed by the Company except
an employee whose customary employment is:
(a) less than 20 hours per week; or
(b) less than 5 months a year.
For the purpose of determining whether an individual is an Employee, the
definition of Company shall also include the Company's subsidiaries, if any, as
defined under Code section 424(f).
1.8. "Entry Date" means October 15, January 15, April 15, July 15 of
each Plan Year.
1.9. "Offering Commencement Date" means the first Business Day of each
Offering Period.
1.10. "Offering Period" means each three month period.
1.11. "Offering Termination Date" means the last Business Day of each
Offering Period.
1.12. "One Month of Service" means a one-month period during which
an individual was an Employee.
1.13. "Participant" means an Employee who has met the eligibility
requirements of Article II and who has elected to participate pursuant to an
election under Section 3.1.
1.14. "Plan Year" means the 12-month period ending December 31.
1.15. "Shares" means shares of Stock that have been allocated to a
Participant's Account.
ARTICLE II
ELIGIBILITY
===========
2.1. Eligibility. Except as provided in Section 3.6, an Employee who
has completed One Month of Service prior to the Effective Date and who continues
to be employed by the Company shall be eligible to participate in the Plan as
of the Effective Date. All other Employees, except as provided in Section
3.6, shall be eligible to participate in the Plan as of the Entry Date
coinciding with or next following the completion of One Month of Service.
2.2. Eligibility Restrictions. A Participant who elects to
terminate participation in the Plan in accordance with Section 3.5 shall be
prohibited from participating in the Plan until the Entry Date next following
the date of such termination.
ARTICLE III
PARTICIPATION
=============
3.1. Commencement of Participation. An eligible Employee may become a
Participant in the Plan on any Entry Date by completing an enrollment
and payroll deduction form and delivering it to the Company in accordance
with procedures established by the Administrator.
3.2. Payroll Deduction. At the time a Participant files his enrollment
and payroll deduction form, he shall elect to have after-tax deductions made
from his Compensation by a whole percentage that is not less than 1% nor more
than 10% of his Compensation.
3.3. Participants' Accounts. All payroll deductions made from a
Participant's Compensation shall be credited to his Account and used to
purchase shares of Stock in accordance with Article V. Contributions credited to
a Participant's Account shall not accrue interest or earnings during the
period prior to being used to purchase shares of Stock in accordance with
Article V.
3.4. Changes in Payroll Deductions. The percentage designated by a
Participant as his rate of contribution under Section 3.2 shall
automatically apply to increases and decreases in his Compensation. Except as
provided in Section 3.5, a Participant may elect to change the rate of his
contributions to any other permissible rate effective as of the first day of the
first payroll period of any Offering Period provided the Participant files
written notice with the Administrator of an election to change his contribution
rate at least ten (10) Business Days before the effective date of the election.
2
3.5. Suspension and Resumption of Payroll Deductions. A Participant
may terminate contributions under the Plan as of the first day of any payroll
period by filing written notice thereof with the Administrator at least ten
(10) Business Days before the effective date of the termination. A Participant
who has terminated his participation in the Plan in accordance with the
preceding provisions, shall be prohibited from resuming contributions under the
Plan until the following Entry Date. A Participant whose contributions have been
terminated in accordance with the preceding provisions, may resume contributions
under the Plan in accordance with Section 2.2.
3.6. Restrictions on Participation. Notwithstanding any provisions of
the Plan to the contrary, no Employee shall be granted an option to participate
in the Plan under the following conditions:
(a) No Employee shall be granted an option if, immediately
after the grant, such Employee would own stock, and/or hold outstanding
options to purchase stock, possessing 5% or more of the total combined
voting power or value of all classes of stock of the Company (for purposes
of this paragraph, the rules of Section 424(d) of the Code shall apply in
determining stock ownership of any Employee); or
(b) No Employee shall be granted an option which permits his
rights to purchase Stock under the Plan and all other employee stock
purchase plans (as described in Section 423 of the Code) of the Company to
accrue at a rate which exceeds $25,000 of fair market value of such Stock
(determined at the time such option is granted) for each calendar year in
which such option is outstanding at any time. For purposes of this Section
3.6(b):
(i) the right to purchase Stock under an option accrues
when the option (or any portion thereof) first becomes exercisable
during the calendar year;
(ii) the right to purchase Stock under an option accrues
at the rate provided in the option, but in no case may such rate
exceed $25,000 of fair market value of such Stock (determined at
the time such option is granted) for any one calendar year; and
(iii) a right to purchase Stock which has accrued under
one option granted pursuant to a plan may not be carried over to
any other option.
ARTICLE IV
OFFERINGS
==========
4.1. Quarterly Offerings. The Plan shall be implemented through
quarterly offerings of the Company's Stock. Each Offering Period shall begin on
the Offering Commencement Date and shall end on the Offering Termination Date;
provided, however, if the first Offering Period commences prior to stockholder
approval of the Plan, the Offering Termination Date for such initial Offering
Period shall not occur until the end of the quarter in which stockholder
approval of the Plan is secured.
4.2. Purchase Price. The "Purchase Price" per share of Stock with
respect to each Offering Period shall be the lesser of:
(a) Eighty-five percent (85%) of the official average of the bid
and ask price of the Stock on the Offering Termination Date on the Nasdaq
OTC Market (or on such other national securities exchange upon which the
Stock may then be listed, hereinafter referred to as the "Exchange") or
if no sale of Stock occurred on such date, the official average of the
bid and ask price on the preceding Business Day; or
(b) Eighty-five percent (85%) of the official average of the bid
and ask price of the Stock on the Offering Commencement Date on the
Exchange (or if no sale of Stock occurred on such date, the closing price
on the preceding business day).
3
4.3. Maximum Offering. The maximum number of shares of Stock which
shall be issued under the Plan, subject to adjustment upon changes in
capitalization of the Company as provided in Section 9.3, shall be 1,000,000
shares. At the beginning of each Offering Period, the Board shall specify a
maximum number of shares which may be purchased by any Employee as well as a
maximum aggregate number of shares which may be purchased by all eligible
Employees pursuant to such quarterly offering. If the total number of shares
which would be purchased during any Offering Period exceeds the maximum number
of available shares, the Administrator shall make a pro rata allocation of the
available shares in a manner that it determines to be equitable and the balance
of payroll deductions credited to the Accounts of Participants shall be returned
to such Participants as soon as administratively practicable.
ARTICLE V
PURCHASE OF STOCK
=================
5.1. Automatic Exercise. On each Offering Termination Date, each
Participant shall automatically and without any act on his part be deemed
to have purchased Stock to the full extent of the payroll deductions credited
to his Account during the Offering Period ending on such Offering Termination
Date.
5.2. Fractional Shares. Fractional shares of Stock may not be
purchased under the Plan.
5.3. Acquisition of Stock. The Company may acquire Stock for use under
the Plan from authorized but unissued shares, treasury shares, in the open
market or in privately negotiated transactions.
5.4. Accounting for Purchased Stock. All shares of Stock purchased
pursuant to Section 5.1 shall be allocated as Shares to the appropriate
Participant's Account as of the Offering Termination Date on which such shares
are purchased.
ARTICLE VI
ACCOUNTING
==========
6.1. General. The Administrator shall establish procedures to account
for payroll deductions made by a Participant, the number of Shares of
Stock purchased on a Participant's behalf and the number of Shares allocated to
a Participant's Account.
6.2. Registration of Stock. Shares of Stock allocated to a
Participant's Account shall be registered in the name of the Company or its
nominee for the benefit of the Participant on whose behalf such shares were
purchased.
6.3. Accounting for Distributions. Shares of Stock distributed or sold
from a Participant's Account shall be debited from his Account on a first-in,
first-out basis.
6.4. Account Statements. Each Participant shall receive at least
semi-annual statements of all payroll deductions and shares of Stock allocated
to his Account together with all other transactions affecting his Account.
ARTICLE VII
WITHDRAWALS AND DISTRIBUTIONS
=============================
4
7.1. Withdrawal of Shares. A Participant may elect to withdraw any
number of Shares allocated to his Account by providing notification to the
Company in accordance with procedures established by the Administrator. As soon
as administratively practicable following notification of a Participant's
election to withdraw Shares, the Administrator shall cause a certificate
representing the number of Shares to be withdrawn to be delivered to the
Participant.
7.2. Distribution Upon Termination. As soon as administratively
practicable after a Participant's termination of employment with the Company or
a participating subsidiary for any reason, a certificate representing all of
such Participant's Shares shall be distributed to him (or his executor, in the
event of his death).
7.3. Distribution of Payroll Deductions. In the event a Participant
terminates his employment with the Company or a participating subsidiary or
his participation in the Plan is terminated pursuant to Section 3.5, any
payroll deductions allocated to his Account and not yet applied to purchase
Stock in accordance with Section 5.1 shall be distributed to him in a cash lump
sum as soon as administratively practicable thereafter.
ARTICLE VIII
ADMINISTRATION
==============
8.1. Appointment of Administrator. The Board shall appoint an
individual or committee comprised of so many members as the Board shall
determine to administer the Plan. The Board may from time to time, if the Plan
is administered by a committee, appoint members to the committee in
substitution for or in addition to members previously appointed and may fill
vacancies, however caused, in the committee.
8.2. Authority of Administrator. The Administrator shall have the
exclusive power and authority to administer the Plan, including, without
limitation, the right and power to interpret the provisions of the Plan and make
all determinations deemed necessary or advisable for the administration of the
Plan. All such actions, interpretations and determinations which are done or
made by the Administrator in good faith shall be final, conclusive and binding
on the Company, the Participants and all other parties and shall not subject
the Administrator to any liability.
8.3. Administrator Procedures. The Administrator shall hold its
meetings at such times and places as it shall deem advisable and may hold
telephone meetings. In the event that the Administrator is a committee, a
majority of its members shall constitute a quorum and all determinations shall
be made by a majority of its members. Any decision or determination reduced to
writing and signed by the Administrator shall be as fully effective as if it had
been made by a majority vote at a meeting duly called and held. The
Administrator may appoint a secretary and shall make such rules and regulations
for the conduct of its business as it shall deem advisable.
8.4. Expenses. The Company will pay all expenses incident to the
operation of the Plan, including the costs of record keeping, accounting fees,
legal fees and the costs of delivery of stock certificates to Participants.
ARTICLE IX
MISCELLANEOUS
=============
9.1. Transferability. Neither payroll deductions credited to a
Participant's Account nor any rights with regard to the purchase of Stock
under the Plan may be assigned, transferred, pledged or otherwise disposed of in
any way by the Participant other than by will or the laws of descent
and distribution.
5
9.2. Status as Owner. Each Participant shall be deemed to legally own
all shares of Stock allocated to his Account and shall be entitled to exercise
all rights associated with ownership of the shares, including, without
limitation, the right to vote such shares in all matters for which Stock is
entitled to vote, receive dividends, if any, and tender such shares in response
to a tender offer.
9.3. Adjustment Upon Changes in Capitalization. In the event of
a reorganization, recapitalization, stock split, spin-off, split-off,
split-up, stock dividend, combination of shares, merger, consolidation or any
other change in the corporate structure of the Company, or a sale by the Company
of all or part of its assets, the Board may make appropriate adjustments in the
number and kind of shares which are subject to purchase under the Plan and in
the exercise price applicable to outstanding options.
9.4. Amendment and Termination. The Board shall have complete power
and authority to terminate or amend the Plan (including without limitation the
power and authority to make any amendment that may be deemed to affect the
interests of any Participant adversely); provided, however, that the Board shall
not, without the approval of the shareholders of the Company (i) increase the
maximum number of shares which may be offered under the Plan (except pursuant to
Section 9.3); (ii) modify the requirements as to eligibility for participation
in the Plan; or (iii) in any other way cause the Plan to fail the requirements
of Section 423 of the Code.
The Plan and all rights of Employees hereunder shall terminate: (i) at any
time, at the discretion of the Board, in which case any cash balance
in Participants' Accounts shall be refunded to such Participants as soon
as administratively possible; or (ii) on the Offering Termination Date on
which Participants become entitled to purchase a number of shares of Stock
that exceeds the maximum number of shares available under the Plan.
9.5. No Employment Rights. The Plan does not, directly or indirectly,
create in any Employee any right with respect to continuation of employment
by the Company and it shall not be deemed to interfere in any way with
the Company's right to terminate, or otherwise modify, an Employee's terms
of employment at any time.
9.6. Withholding. To the extent any payments or distributions under
this Plan are subject to Federal, state or local taxes, the Company is
authorized to withhold all applicable taxes. The Company may satisfy its
withholding obligation by (i) withholding shares of Stock allocated to a
Participant's Account, (ii) deducting cash from a Participant's Account,
or (iii) deducting cash from a Participant's other compensation. A
Participant's election to participate in the Plan authorizes the Company to take
any of the actions described in the preceding sentence.
9.7. Use of Funds. All payroll deductions held by the Company under
this Plan may be used by the Company for any corporate purpose and the Company
shall not be obligated to hold such payroll deductions in trust or otherwise
segregate such amounts.
9.8. Shareholder Approval. Notwithstanding the provision of Section
1.6 of the Plan, the Plan shall not take effect until approved by the
shareholders of the Company.
9.9. Choice of Law. Except to the extent superseded by Federal law,
the laws of the State of Oklahoma will govern all matters relating to the Plan.
To record the adoption of the Plan, TMS, Inc. has caused its authorized
officers to affix its Corporate name and seal this 29th day of June, 1999.
6
TMS, INC.
(SEAL) By: /s/ Dana R. Allen
---------------------------------
Dana R. Allen, President and
Chief Executive Officer
ATTEST:
By: /s/ Marshall C. Wicker
Secretary
7
Exhibit 5.1
July 19, 2001
TMS, Inc.
206 West Sixth Ave.
P.O. Box 1358
Stillwater, Oklahoma 74074
Re: TMS, Inc. ("Company")
Form S-8 Registration Statement
-------------------------------
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, relating to
1,000,000 shares of the Company's common stock, $.05 par value (the "Common
Stock"), issuable under the Company's Employee Stock Purchase 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' CONSENT
The Board of Directors
TMS, Inc.
We consent to the incorporation by reference herein of our report on the
financial statements of TMS, Inc. (dba TMSSequoia) as of August 31, 2000 and
1999, and for each of the years in the two-year period ended August 31, 2000,
which report appears in the August 31, 2000 Annual Report on Form 10-KSB of TMS,
Inc.
KPMG LLP
Oklahoma City, Oklahoma
July 16, 2001
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
July 19, 2001