As filed with the Securities and Exchange Commission on February 6, 2003
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________________
Midland Capital Holdings Corp.
(Exact name of registrant as specified in its charter)
Delaware 36-4238089
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8929 South Harlem Avenue
Bridgeview, Illinois 60455
(Address of principal executive offices, including zip code)
___________________________________
1993 Stock Option and Incentive Plan
(Full title of the plan)
__________________________________
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Paul M. Zogas Copy to:
President, Chief Executive Officer Kip A. Weissman, Esq.
Midland Capital Holdings Corp. Michael A. Troy, Esq.
8929 South Harlem Avenue Jenkens & Gilchrist, A Professional Corporation
Bridgeview, Illinois 60455 1919 Pennsylvania Ave., N.W., Suite 600
(708) 598-9400 Washington, D.C. 20006-3404
(Name, address, and telephone number including
area code of agent for service for service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of Amount to offering price aggregate Amount of
securities to be registered be registered(1) per share offering price registration fee
- --------------------------------------------------------------------------------------------------------------------------
Common Stock (par value $0.01 6,900 shares $10.00(2) $69,000(2) $6.35
per share)
- --------------------------------------------------------------------------------------------------------------------------
Common Stock (par value $0.01 1,725 shares $16.25(2) $28,031.25(2) $2.58
per share)
- --------------------------------------------------------------------------------------------------------------------------
Common Stock (par value $0.01 6,900 shares $28.375(2) $195,787.50(2) $18.01
per share)
- --------------------------------------------------------------------------------------------------------------------------
$26.94
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also covers an indeterminate number of additional shares
of common stock which, by reason of certain events specified in the employee
benefit plan described herein, may become subject to the employee benefit plan.
(2) Estimated, pursuant to Rule 457(h), solely for the purpose of calculating
the registration fee, based upon the price at which the options may be
exercised. Of the 15,525 shares being registered, 6,900 shares relate to options
which are exercisable at $10.00 each, 1,725 shares relate to options which are
exercisable at $16.25 each and the remaining 6,900 shares which have not been
awarded are based upon the average of the bid and ask prices of the registrant's
common stock on the Electronic Bulletin Board of $28.375 per share as of
February 4, 2003.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be
sent or given to participants in the 1993 Stock Option and Incentive Plan, which
we refer to as the Plan, as specified by Rule 428(b)(1) promulgated by the
Securities and Exchange Commission under the Securities Act of 1933, as amended.
Such documents are not being filed with the Securities and Exchange 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 Securities Act of 1933, as
amended.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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The following documents previously or concurrently filed by Midland Capital
Holdings Corp. with the Securities and Exchange Commission are hereby
incorporated by reference in this registration statement:
(a) Midland Capital Holdings Corp.'s Annual Report on Form 10-KSB for
the fiscal year ended June 30, 2002 (File No. 14343) filed on September 30,
2002, with the Securities and Exchange Commission;
(b) Midland Capital Holdings Corp.'s Quarterly Report on Form 10-QSB
for the fiscal quarter ended September 30, 2002 (File No. 14343) filed on
November 14, 2002, with the Securities and Exchange Commission;
(c) all other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, since the end of the fiscal
year covered by audited financial statements contained in the Annual Report
on Form 10-KSB referred to in Item 3(a) above; and
(d) the description of the Common Stock, par value $0.01 per share, of
Midland Capital Holdings Corp. set forth in the Registration Statement on
Form 8-A12B, filed with the Securities and Exchange Commission on July 27,
1998, including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by Midland Capital Holdings Corp. with the
Securities and Exchange Commission pursuant to Sections 13(a), 13(c), 14, or
15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference into this Registration Statement and to be a
part thereof from the date of the filing of such documents. Any statement
contained in the documents incorporated, or deemed to be incorporated, by
reference herein or therein shall be deemed to be modified or superseded for
purposes of this Registration Statement and the Prospectus to the extent that a
statement contained herein or therein or in any other subsequently filed
document which also is, or is deemed to be, incorporated by reference herein or
therein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement and the Prospectus.
Item 4. Description of Securities
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Not applicable.
Item 5. Interests of Named Experts and Counsel
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Not applicable.
Item 6. Indemnification of Directors and Officers
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Section 145 of the Delaware General Corporation Law inter alia, empowers a
Delaware corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee
or agent of the corporation or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. Similar indemnity is authorized for such person against expenses
(including attorneys' fees) actually and reasonably incurred in connection with
the defense or settlement of any such threatened, pending or completed action or
suit if such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, and provided
further that (unless a court of competent jurisdiction otherwise provides) such
person shall not have been adjudged liable to the corporation. Any such
indemnification (unless ordered by a court) may be made only as authorized in
each specific case by the corporation upon a determination that indemnification
is proper because the indemnitee has met the applicable standard of conduct,
which indemnification shall be made in the case of a director or officer at the
time of the determination by the shareholders, disinterested directors or
committee of disinterested directors or by independent legal counsel in a
written opinion.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him, and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145.
Article Ninth of Midland Capital Holdings Corp.'s Certificate of
Incorporation provides as follows:
A. Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a director or an officer of the
Corporation or is or was serving at the request of the Corporation as a director
or officer of another corporation, including, without limitation, any Subsidiary
(as defined in Article EIGHTH herein), partnership, joint venture, trust or
other enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director or officer or in any other capacity
while serving as a director or officer, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than such law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith; provided, however, that,
except as provided in Section C hereof with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any such indemnitee
in connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
B. The right to indemnification conferred in Section A of this Article
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication"), that such
indemnitee is not entitled to be indemnified for such expenses under this
Section or otherwise. The rights to indemnification and to the advancement of
expenses conferred in Sections A and B of this Article shall be contract rights
and such rights shall continue as to an indemnitee who has ceased to be a
director or officer and shall inure to the benefit of the indemnitee's heirs,
executors and administrators.
C. If a claim under Section A or B of this Article is not paid in full by
the Corporation within 60 days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall also be entitled to be paid the
expense of prosecuting or defending such suit. In (1) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (2) in any suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, the Corporation's
Certificate of Incorporation, By-laws, agreement, vote of stockholders or
Disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by a
majority vote of the disinterested directors, grant rights to indemnification
and to the advancement of expenses to any employee or agent of the Corporation
to the fullest extent of the provisions of this Article with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
Item 7. Exemption From Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
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Exhibit Description of Exhibit
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4.1 Certificate of Incorporation of Midland Capital Holdings Corp.
(Previously filed with the Securities and Exchange Commission on
June 22, 1998, as Exhibit 3.1 to Midland Capital Holding Corp.'s
Registration Statement No. 333-57399 on Form S-4 and incorporated
herein by reference.)
4.2 Bylaws of Midland Capital Holdings Corp. (Previously filed with
the Securities and Exchange Commission on June 22, 1998, as
Exhibit 3.2 to Midland Capital Holding Corp.'s Registration
Statement No. 333-57399 on Form S-4 and incorporated herein by
reference.)
4.3 1993 Stock Option and Incentive Plan (Previously with the
Securities and Exchange Commission on June 22, 1998, as Exhibit
10.2 to Midland Capital Holding Corp.'s Registration Statement
No. 333- 57399 on Form S-4 and incorporated herein by reference.)
5.1 Opinion of Jenkens & Gilchrist, A Professional Corporation
23.1 Consent of Jenkens & Gilchrist, A Professional Corporation
(included in their opinion filed as Exhibit 5.1)
23.2 Consent of Cobitz, Vandenberg & Fennesy
24 Power of Attorney*
____________________
* Contained in Signature Page
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and
(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 of 1933 (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 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 Securi-
ties 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 Securities 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 of whethersuch indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Bridgeview, State of Illinois, on February 5, 2003.
Midland Capital Holdings Corp.
By:/s/ Paul M. Zogas
-----------------
Paul M. Zogas
President, Chief Executive Officer and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each individual whose signature appears
below hereby constitutes and appoints Paul M. Zogas 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
or all amendments to this registration statement, and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Commission, granting unto 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 connection therewith, as fully to all intents and purposes as he
might or could do in person hereby ratifying and confirming that said
attorney-in-fact and agent or his substitutes, 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 by the following persons in the
capacities and on the dates included:
Signature Capacity Date
--------- -------- ----
<c>
/s/ Paul M. Zogas President, Chief Executive February 5, 2003
- -----------------
Paul M. Zogas Officer, Chief Financial Officer
and Chairman of the Board of the
Corporation
/s/ Charles A. Zogas Director of the Corporation, February 5, 2003
- --------------------
Charles A. Zogas Executive Vice President and
Secretary
/s/ Jonas Vaznelis Director of the Corporation February 5, 2003
- ------------------
Jonas Vaznelis
/s/ Richard Taylor Director of the Corporation February 5, 2003
- ------------------
Richard Taylor
/s/ Michael J. Kukanza Director of the Corporation February 5, 2003
- ----------------------
Michael J. Kukanza
/s/ Algerd Brazis Director of the Corporation February 5, 2003
- -----------------
Algerd Brazis
Exhibit Index
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Exhibit Description of Exhibit
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4.1 Certificate of Incorporation of Midland Capital Holdings Corp.
(Previously filed with the Securities and Exchange Commission on
June 22, 1998, as Exhibit 3.1 to Midland Capital Holding Corp.'s
Registration Statement No. 333-57399 on Form S-4 and incorporated
herein by reference.)
4.2 Bylaws of Midland Capital Holdings Corp. (Previously filed with
the Securities and Exchange Commission on June 22, 1998, as
Exhibit 3.2 to Midland Capital Holding Corp.'s Registration
Statement No. 333-57399 on Form S-4 and incorporated herein by
reference.)
4.3 1993 Stock Option and Incentive Plan (Previously with the
Securities and Exchange Commission on June 22, 1998, as Exhibit
10.2 to Midland Capital Holding Corp.'s Registration Statement
No. 333- 57399 on Form S-4 and incorporated herein by reference.)
5.1* Opinion of Jenkens & Gilchrist, A Professional Corporation
23.1*Consent of Jenkens & Gilchrist, A Professional Corporation
(included in their opinion filed as Exhibit 5.1)
23.2* Consent of Cobitz, Vandenberg & Fennesy
24** Power of Attorney
* Filed herewith
** Contained in Signature Page