SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange
Act of 1934
(Amendment No. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule 14a-
6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to '240.14a-12
TMS, INC.
(Name of Registrant as Specified in its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth amount on which the
filing fee is calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
To Be Held February 22, 2002
Notice is hereby given that the Annual Meeting of Shareholders of TMS,
Inc., an Oklahoma corporation, will be held in Room 119 of the Stillwater Public
Library, 1107 South Duck, Stillwater, Oklahoma, on Friday, February 22, 2002, at
10:00 a.m., Central Standard Time, for the following purposes:
(1) To elect five persons to serve as directors;
(2) To approve and ratify the selection of KPMG LLP as independent
auditors; and
(3) To consider and act upon any other matters which may properly come
before the meeting or adjournments thereof.
Shareholders of record at the close of business on December 19, 2001
are entitled to notice of and to vote at the meeting or any adjournment
thereof. Shareholders who attend the meeting may revoke their proxies and
vote in person if they desire.
BY ORDER OF THE BOARD OF DIRECTORS
Marshall C. Wicker, Secretary
Stillwater, Oklahoma
December 22, 2001
TMS, INC.
206 West Sixth Street
Stillwater, Oklahoma 74074
PROXY STATEMENT FOR THE ANNUAL MEETING
OF SHAREHOLDERS TO BE HELD FEBRUARY 22, 2002
This Proxy Statement is furnished to shareholders of TMS Inc. an Oklahoma
corporation (the "Company"), in connection with the solicitation of proxies by
the Company for the Annual Meeting of Shareholders to be held in Room 119 of the
Stillwater Public Library, 1107 South Duck, Stillwater, Oklahoma on Friday,
February 22, 2002, at 10:00 a.m., Central Standard Time, or at any adjournment
thereof. The persons named as proxies in the enclosed form were selected by the
Board of Directors of the Company.
This Proxy Statement and the accompanying proxy are first being mailed on
or about December 22, 2001 to shareholders of record as of December 19, 2001,
along with the Annual Report to Shareholders, including financial statements for
the fiscal year ended August 31, 2001.
GENERAL
Outstanding Shares and Voting Rights; Voting Procedures
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At the close of business on December 19, 2001 the Company had 13,105,659
shares of common stock $.05 par value ("Common Stock"), outstanding. The
holders of at least a majority of the outstanding shares of Common Stock,
present, in person or by proxy, will constitute a quorum for the transaction of
business at the meeting. Shareholders have no cumulative voting rights.
Any person signing and mailing the enclosed proxy may attend the meeting
and vote in person. Shareholders may revoke their proxies at any time before
they are voted by notifying the Secretary of such revocation, in writing, at the
meeting, or by submitting a later dated proxy. Shareholders are encouraged to
vote on the matters to come before the meeting by marking their preferences on
the enclosed proxy and by dating, signing, and returning the proxy in the
enclosed envelope. If a preference is not indicated on a proxy, the proxy will
be voted "FOR" the election of the nominees as directors and "FOR" the
ratification and selection of independent auditors.
It is not anticipated that matters other than those described above and in
the Notice of Annual Meeting, to which this Proxy Statement is appended, will be
brought before the meeting for action, but if any other matters properly come
before the meeting, it is intended that votes thereon will be cast pursuant to
said proxies in accordance with the best judgment of the proxy holders.
The election of the director nominees will be by plurality vote. It is
the Company's policy (i) to count abstentions and broker non-votes for
determining the presence of a quorum at the meeting, (ii) to treat abstentions
as shares represented at the meeting and voting against a proposal and to
disregard broker non-votes in determining results of proposals requiring a
majority or higher vote, and (iii) to consider neither abstentions nor broker
non-votes in determining results of plurality votes.
Record Date
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The Board of Directors has selected December 19, 2001 as the record date
to determine shareholders entitled to receive notice of and to vote at the
meeting. Each outstanding share of Common Stock is entitled to one vote on all
matters herein.
1
Expenses of Solicitation
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The Company will pay the expenses of this solicitation of proxies,
including expenses in connection with the preparation and mailing of this Proxy
Statement and all documents which now accompany or may hereafter supplement this
Proxy Statement. Solicitations will be made only by the use of the mails,
except that, if deemed desirable, officers and regular employees of the Company
may solicit proxies by telephone. The Company will request that brokerage
houses, custodians, nominees and fiduciaries forward the proxy soliciting
material to the beneficial owners of the Common Stock held of record by such
persons and that the Company will reimburse them for their reasonable expenses
incurred in doing so.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The following table sets forth information regarding the beneficial
ownership of shares of the Company's Common Stock as of December 19, 2001, by
each shareholder known to the Company to be a beneficial owner of more than 5%
of Company's Common Stock. Unless otherwise indicated, the beneficial owner has
sole voting and investment power with respect to such shares of Common Stock.
Amount and Nature Percent
Name and of Beneficial Ownership of Class(1)
Address
Theodore A. Walker 920,000(2) 7.0%
P.O. Box 1580
Alvin, Texas 77512
James R. Rau, M.D. 704,500(3) 5.3%
1203 South Hill Street
Alvin, Texas 77511
Russell W. Teubner 677,450 5.2%
5717 Woodlake Drive
Stillwater, OK 74074
(1) Shares of Common Stock subject to options exercisable on or before
February 19, 2002 ("Currently Exercisable Options") are deemed
outstanding for purposes of computing the percentage for such person but
are not deemed outstanding in computing the percent of any other person.
(2) Includes 56,000 shares which are held by Mr. Walker in joint tenancy with
his wife, Jerline, with whom he shares voting and investment power.
(3) Includes 345,010 shares held by Dr. Rau's wife, Martha, with whom he
shares voting and investment power as to such shares, and 87,500 shares
subject to Currently Exercisable Options.
As of the close of business on October 31, 2001 Cede & Co. owned of record
but not beneficially, 8,395,795 shares (64%) of Common Stock. Cede & Co., the
nominee for the Depository Trust Company, holds securities of record for
participating financial institutions such as banks and broker/dealers.
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ELECTION OF DIRECTORS
General
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Pursuant to the Company's Bylaws the Board of Directors has fixed the number of
directors at five for the ensuing year, and the Board of Directors has nominated
each of its current directors for re-election.
The Board of Directors has no reason to believe that any nominee will
become unavailable. However, in the event that any of the nominees should
become unavailable, proxies solicited by the Board of Directors will be voted
for the election of substitute nominees or additional nominees designated by the
Board of Directors.
PROXIES SOLICITED BY THE BOARD OF DIRECTORS, IF PROPERLY SIGNED AND
RETURNED, WILL BE VOTED "FOR" THE ELECTION OF THE FIVE NOMINEES LISTED BELOW AS
DIRECTORS OF THE COMPANY.
Information Concerning Nominees
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Certain information as of December 19, 2001, concerning the nominees to
the Board of Directors of the Company, is set forth below. Unless otherwise
indicated, the beneficial owner has sole voting and investment power with
respect to such shares.
Common Stock Beneficially
Owned
Director Term Number Percentage
Age Since Expires of Shares of
Class(1)
Russell W. Teubner 45 1999 2002 677,450 5.2%
James R. Rau, M.D. 72 1990 2002 704,500(2) 5.3%
Rudy J. Alvarado 70 2000 2002 400,000 3.1%
Marshall C. Wicker 75 1994 2002 361,828(3) 2.8%
Doyle E.Cherry 59 1988 2002 230,903(4) 2.0%
All executive officers 2,508,681(5) 18.6%
and directors as a group
(6 persons)
3
(1) Shares of Common Stock subject to Currently Exercisable Options are deemed
outstanding for purposes of computing the percentage for such person but
are not deemed outstanding in computing the percent of any other person.
(2) See footnote (3) to the table under heading "Security Ownership of Certain
Beneficial Owners."
(3) Includes 163,399 shares held by Mr. Wicker in joint tenancy with his wife,
Bettye, with whom he shares voting and investment power; and 50,000 shares
subject to Currently Exercisable Options.
(4) Includes 20,000 shares held by Mr. Cherry in joint tenancy with his wife,
Theresa, with whom he shares voting and investment power; and 125,000
shares subject to Currently Exercisable Options.
(5) Includes 575,409 shares as to which directors and executive officers share
voting and investment power with others and 349,500 shares subject to
Currently Exercisable Options.
Information Concerning Nominees
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The following information is furnished for each person who is nominated for re-
election as a director.
Russell W. Teubner has served as Chairman of the Board of Directors of the
Company since January 2000, and as a Director of the Company since
1999. From 1983 to 1998, Mr. Teubner served as Chief Executive Officer of
Teubner & Associates, a software firm which he founded. He currently serves as
Founder and Chief Executive Officer of HostBridge Technology. Mr. Teubner also
serves as a Director of Esker, S.A. (a publicly held French software company)
and Southwest Bancorp (NASDAQ:OKSB).
Dr. James R. Rau has served as a Director of the Company since 1990. Dr.
Rau practiced medicine from 1956 to 1985 in a private practice and from 1985 to
1988 as a part-time physician with the Monsanto Company in Houston, Texas.
Since leaving Monsanto, Dr. Rau has managed his financial and real estate
investments.
Rudy J. Alvarado has served as a Director of the Company since 2000. Mr.
Alvarado is Chairman of the Board and Director of Advancia Corporation, a
privately held technology company. He served as President and Chief Executive
Officer of Advancia from 1990 until 1999. Prior to 1990, Mr. Alvarado founded
and owned several technology companies. Mr. Alvarado has many years of senior
management experience in the technology industries, including the Information
Systems Division of General Electric. He received a Bachelor of Science degree
in Mechanical Engineering from Texas A&M University.
Marshall C. Wicker has served as a Director of the Company since 1994.
Since 1983, he has owned and operated Marwick Enterprises, which is engaged in
ranching and investments. Mr. Wicker is a Professional Engineer and a member of
the American Association of Petroleum Geologists and Society of Exploration
Geophysicists.
Doyle E. Cherry served as Chairman of the Board of Directors of the
Company from October 1997 through August 1998, and has served as a Director of
the Company since 1988. Mr. Cherry is a chartered financial consultant and since
1961 has worked in the insurance and securities industries and the actuarial,
tax and financial consulting fields. From 1982 to 1993, Mr. Cherry also served
as President and Chief Executive Officer of First Market Corporation and the
First Market Group of Companies. Mr. Cherry is currently serving as Chairman of
the Board and CEO of C&H Pipe, an oil field service company located in Houston,
Texas.
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Executive Officers and Other Significant Employees
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The following sets forth the name and a description of the background and
principal occupation of each executive officer or other significant employee of
the Company who is not a director of the Company.
Deborah D. Mosier, 34, has served as the Company's President since
September 1999 and continues to serve as Principal Financial Officer for the
Company. She joined TMS in 1995 as Controller of Financial Operations and was
appointed Chief Financial Officer in 1996. From 1989 to 1996, Ms. Mosier worked
in the audit practice of KPMG LLP. Ms. Mosier received her Bachelor of Science
Degree with a major in accounting from Oklahoma State University and is a
Certified Public Accountant.
Deborah Klarfeld, 45, joined the Company in September 1999 as the General
Manager of the Tools and Technologies division and the Vice President of
Marketing. In September 2000, Ms. Klarfeld was appointed Vice President of
Component Products and Corporate Marketing. Prior to joining the Company, Ms.
Klarfeld served as Vice President for New Business Development at Electronic
Label Technology from April 1996 to September 1999 and as Vice President of
Marketing for United Industries Corporation from September 1994 to April 1996.
Ms. Klarfeld received her Master of Business Administration Degree from the
University of Tulsa and her Bachelor of Science Degree with a major in Chemistry
from the University of Oklahoma.
Richard P. Scanlan, 40, joined the Company in 1989 and served as Vice
President of Sales from 1993 to 1996. In December 1996, Mr. Scanlan was named
General Manager for the Internet Innovations division. In September 2000 he was
appointed Vice President of Business Development for the Assessment Scoring
Technology segment, where he is responsible for directing the development of new
business and the establishment of new market areas for the Company's assessment
scoring products. He received a Bachelor of Science degree in business
management from Oklahoma State University in 1985, and in 1989 he received a
second Bachelor of Science degree in management science and computer systems
from Oklahoma State University.
Board of Directors' Meetings
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During the 2001 fiscal year, the Company's Board of Directors held three
meetings. All members of the Board of Directors attended more than seventy-five
percent (75%) of the Board of Directors' meetings.
Committees of the Board
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The Board of Directors has a standing Compensation Committee which
administers the Company's stock option plans. Such committee is currently
comprised of Dr. Rau and Messrs. Cherry and Wicker, and conducts all necessary
business during the regular meetings of the Board or through action by written
consent. The Compensation Committee met one time during the 2001 fiscal year.
All of the members of the Compensation Committee attended more than seventy-five
percent (75%) of the Committee's meetings. The Company does not have a standing
nominating or audit committee.
Certain Relationships and Related Transactions
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No officer or director had transactions with or indebtedness to the
Company in excess of $60,000 during the fiscal year ended August 31, 2001.
Changes in Control
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The Board of Directors does not know of any arrangements (including any
pledge by a person of our securities) which would result in a change of control.
Compliance with Section 16(a) of the Securities Exchange Act
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Section 16(a) of the Securities Exchange Act of 1934 and the
rules promulgated thereunder require that certain officers, directors and
beneficial owners of the Company's Common Stock file various reports with the
Securities and Exchange Commission. Based solely upon a review of such reports
filed with the SEC, the Company believes that no late reports were filed for the
fiscal year ended August 31, 2001.
EXECUTIVE COMPENSATION
Summary Compensation Table
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The following table sets forth the cash and noncash compensation for each
of the last three fiscal years awarded to or earned by the Chief Executive
Officer of the Company. No executive officer, other than the Chief Executive
Officer, earned more than $100,000 total annual salary and bonus during such
period.
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Annual Long Term
Compensation Compensation Awards
----------------- -------------------
Restricted
Stock All Other
Name and Principal Year Salary($) Bonus($) Awards ($) (1) Options (#) Compensation
Position
Dana R. Allen (2) 2000 $17,681 -- -- -- $530
1999 $70,372 -- -- -- $2,903
Arthur D. Crotzer (3) 1999 $32,500 -- -- -- $1,725
1998 $97,621 $27,010 -- -- $2,840
Deborah D. Mosier (4) 2001 $127,917 -- $3,240 -- $2,637
2000 $123,417 -- $3,240 150,000 $2,776
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(1)On September 24, 1999, the Company's Board of Directors approved a
restricted stock grant in the amount of 50,000 shares of the Company's
Common Stock. The shares are issued at a rate of 1,000 shares per month.
Based on the $.27 per share market price on the date of grant, the value
of the 12,000 shares issued to Ms. Mosier was $3,240 in both fiscal 2000
and 2001.
(2)Mr. Allen became Chief Executive Officer effective January 1, 1999, and
resigned effective September 24, 1999. "All Other Compensation" includes
employer matching contributions to the Company's defined contribution
plan.
(3)Mr. Crotzer became Chief Executive Officer effective October 23, 1997, and
resigned effective January 1, 1999. "All Other Compensation" includes
employer matching contributions to the Company's defined contribution
plan.
(4)Ms. Mosier became President effective September 24, 1999. "All Other
Compensation" includes employer matching contributions to the Company's
defined contribution plan.
7
Compensation of Directors
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Each non-employee Director receives $1,000 per month for services as a
Director. The non-employee Directors are Dr. Rau and Messrs. Alvarado, Cherry,
Teubner and Wicker.
APPROVAL OF SELECTION OF AUDITORS
Subject to approval by the shareholders, the Board of Directors has
selected the firm of KPMG LLP, certified public accountants, as auditors of the
Company for the fiscal year ending August 31, 2002. Representatives of KPMG LLP
are expected to be present at the meeting to respond to shareholder questions.
The Company has been advised by KPMG LLP that neither the firm nor any of
its associates has any relationship with the Company or any affiliate of the
Company other than the usual relationship that exists between independent public
accountants and their clients. To the knowledge of the Board of Directors,
neither KPMG LLP nor any of its associates has any direct or material indirect
financial interest in the Company and its subsidiaries in the capacities of
promoter, underwriter, voting trustee, director, officer or employee.
The following sets forth the fees paid or accrued by the Company to its
independent auditors, KPMG LLP, for the fiscal year ended August 31, 2001.
Audit Fees
Fees for the fiscal year 2001 audit and the reviews of the Forms
10-QSB, filed for fiscal year 2001 were $50,000.
Financial Information System Design and Implementation Fees
KPMG LLP did not render any services related to financial information
systems design and implementation for the fiscal year ended August 31,
2001.
All Other Fees
During fiscal 2001, $52,677 was charged by KPMG LLP for "other fees" which
included services provided for tax, legal proceedings and accounting
consulting, as well as services related to a registration statement filed
with the Securities and Exchange Commission.
The Board of Directors believes that non-audit services provided by KPMG
LLP are compatible with maintaining KPMG LLP's independence.
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THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE RATIFICATION OF THE
SELECTION OF KPMG LLP AS AUDITORS OF THE COMPANY FOR THE CURRENT FISCAL YEAR AND
THE PROXY, UNLESS OTHERWISE INDICATED THEREON, WILL BE VOTED "FOR" THE
RATIFICATION OF KPMG LLP AS AUDITORS OF THE COMPANY FOR THE CURRENT FISCAL YEAR.
SHAREHOLDERS' PROPOSALS
Proposals by shareholders intended to be presented at the 2003 Annual
Meeting of Shareholders must be received by the Company prior to August 13,
2002, in order for the proposals to be included in the proxy statement and proxy
card relating to such meeting. It is suggested that proposals be submitted to
the Company by certified mail, return receipt requested.
OTHER MATTERS
Management knows of no other business other than those set forth in the
notice of annual meeting of shareholders which is likely to be brought before
the meeting. If other matters not now known to management come before the
meeting, however, it is the intention of the persons named in the accompanying
proxy to vote in accordance with their best judgment.
BY ORDER OF THE BOARD OF DIRECTORS
Marshall C. Wicker, Secretary
December 22, 2001
9
A copy of the Company's Form 10-KSB Annual Report as filed with the
Securities and Exchange Commission will be furnished without charge to
shareholders on request to the Principal Accounting Officer of the Company, at
its address stated herein.
TMS, Inc.
206 West Sixth Street, Stillwater, Oklahoma 74074
This Proxy is solicited on behalf of the Board of Directors of TMS, Inc. (the
"Company"). The undersigned hereby appoints Rudy J. Alvarado, Doyle E. Cherry,
James R. Rau, M.D., Russell W. Teubner, and Marshall C. Wicker as proxies, each
with the power to appoint his substitute, and hereby appoints and authorizes
them to represent and vote as designated below, all the shares of common stock
of the Company held of record by the undersigned on December 19, 2001, at the
Annual Meeting of Shareholders to be held on February 22, 2002, or any
adjournment thereof.
1. ELECTION OF DIRECTORS [ ] FOR all nominees [ ] WITHHOLD AUTHORITY
listed below to vote for all
(except as marked nominees listed
to the contrary below below
Russell W. Teubner James R. Rau, M.D. Rudy J. Alvarado
Marshall C. Wicker Doyle E. Cherry
2. PROPOSAL to approve and ratify the selection of KPMG LLP as the Company's
independent auditors for the fiscal year ending August 31, 2002.
[ ]FOR [ ]AGAINST [ ]ABSTAIN
3. IN THEIR DISCRETION, THE PROXIES ARE AUTHORIZED TO VOTE upon such other
business as may properly come before the meeting or any adjournment thereof.
(Continued and to be signed on the reverse side.)
This proxy, when properly executed, dated and delivered, will be voted in the
manner directed herein by the undersigned shareholder. If no direction is made,
this proxy will be voted FOR Proposals 1, 2 and 3.
Please sign exactly as name appears below.
When shares are held by joint tenants, both
should sign. When signing as attorney or as
executor, administrator, trustee or
guardian, please give full title as such.
If corporation, please sign in full
corporate name by president or other
authorized officer. If a partnership,
please sign in partnership name by
authorized person.
Date: 20
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(Signature)
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(Signature, if held jointly)
PLEASE SIGN, DATE AND RETURN THE PROXY CARD
PROMPTLY USING THE ENCLOSED ENVELOPE.