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As filed with the Securities and Exchange Commission on May 8, 2001
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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MOORE-HANDLEY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 63-0819773
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3140 PELHAM PARKWAY
PELHAM, ALABAMA 35124
(Address of Principal Executive Offices)
MOORE-HANDLEY, INC. 2001 INCENTIVE COMPENSATION PLAN
(Full title of the Plan)
JUDI WATSON
MOORE-HANDLEY, INC.
3140 PELHAM PARKWAY
PELHAM, ALABAMA 35124
(205) 663-8011
(Name, address and telephone number of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per unit offering price registration fee
- -------------------- ------------ -------------- -------------- ----------------
Common 460,000(1) $1.00(2) $460,000(2) $115.00
Stock, par
value $.10 per
share
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(1) Consists of shares of Common Stock to be offered pursuant to the
Moore-Handley, Inc. 2001 Incentive Compensation Plan (the "Plan"). Such
indeterminate number of additional shares as may be issuable pursuant
to the recapitalization provisions under the Plan is hereby also
registered.
(2) Computed pursuant to Rule 457(h) solely for the purpose of determining
the registration fee, based upon an assumed price of $1.00 per share,
which was the average of the bid and ask prices of Moore-Handley, Inc.
common shares on May 2, 2001, as reported on the NASDAQ Stock Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Incorporated by reference in this Registration Statement are
the following documents heretofore filed by Moore-Handley, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"):
a. The Company's latest annual report filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act;
b. All other reports filed by the Company 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; and
c. The description of the Company's Common Stock, par
value $.10 per share (the "Common Stock"), contained
in a registration statement filed under the Exchange
Act, and any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to
sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the dates of filing of such 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 incorporated or deemed to be incorporated by reference herein) modified
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.
Item 4. Description of Securities
Not applicable.
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Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
The Delaware General Corporation Law (the "Delaware Law")
permits a Delaware corporation to include a provision in its Certificate of
Incorporation, and the Company's Restated Certificate of Incorporation so
provides, eliminating or limiting the personal liability of a director to the
Corporation or its Stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision may not eliminate or limit the
liability of a director (i) for any such of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware Law which makes directors personally
liable for unlawful dividends or unlawful stock repurchases or redemptions.
Under Delaware law, directors and officers may be indemnified against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any threatened, pending or completed action, suit or proceeding
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation (a "derivative action")) if they acted in
good faith and in a manner they reasonably believed to be in or not opposed to
the best interest of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. In
derivative actions, indemnification extends only to expenses (including
attorneys' fees) incurred in connection with defense or settlement of such an
action and, in the event such person shall have been adjudged to be liable to
the corporation, only to the extent that a proper court shall have determined
that such person is fairly and reasonably entitled to indemnity for such
expenses.
The Company's Restated Certificate of Incorporation provides,
among other things, that each person who was or is made a party to, or is
threatened to be made a party to, or is involved in, any action, suit or
proceeding by reason of the fact that he is the legal representative, or is or
was a director or officer of the Company (or was serving at the request of the
Company as a director, officer, employee or agent for another entity) while
serving in such capacity, shall be indemnified and held harmless by the Company
to the full extent authorized by the Delaware Law, as in effect (or, to the
extent indemnification is broadened, as it may be amended), against all
expenses, liability or loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amount to be paid in settlement) reasonably
incurred by such person in connection therewith. The Company's Restated
Certificate of Incorporation also provides that the right of indemnification
conferred to the director, officer or legal representative by the Company's
Restated Certificate of Incorporation shall include the right to be paid by the
Company for expenses in defending the proceedings specified above, in advance of
their
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final disposition. The Company may also, by action of its Board of Directors,
provide indemnification to its employees and agents with the same scope and
effect as the foregoing indemnification of directors and officers.
The Company maintains directors' and officers' reimbursement
and liability insurance pursuant to standard form policies. The risks covered by
such policies include certain liabilities under the securities law.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
An Exhibit Index, containing a list of all exhibits filed with
this registration statement, is included on page 9.
Item 9. Undertakings
(a) Rule 415 Offering. 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, unless the information
is contained in periodic reports filed by the Registrant
pursuant to section 13 or section 15(d) of the Exchange Act
that are incorporated by reference in the Registration
Statement;
(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, unless the information is contained in
periodic reports filed by the Registrant pursuant to section
13 or section 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement.
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(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 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.
(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) Subsequent Exchange Act Documents. 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
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) Indemnification. 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 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
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 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
The Registrant. 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 Pelham, Alabama on the 7th day of May,
2001.
MOORE-HANDLEY, INC.
By: /s/ Judi Watson
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Judi Watson
Treasurer
Each person whose signature appears below does hereby make,
constitute and appoint William Riley and Judi Watson and each of them, with full
power to act without the other, his true and lawful attorney-in-fact and agent,
in his name, place and stead to execute on his behalf, as a director of
Moore-Handley, Inc. (the "Company"), the Registration Statement of the Company
on Form S-8 (the "Registration Statement") for the registration of shares of the
Company's common stock, par value $.10 ("Common Stock"), in connection with the
Moore-Handley, Inc. 2001 Incentive Compensation Plan and any and all amendments
(including post-effective amendments) to the Registration Statement, and file
the same with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (the "SEC") pursuant to the
Securities Act of 1933 (the "Act"), and any and all other instruments which
either of said attorneys-in-fact and agents deems necessary or advisable to
enable the Company to comply with the Act, the rules, regulations and
requirements of the SEC in respect thereof, and the securities or Blue Sky laws
of any State or other governmental subdivision, giving and granting to each of
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing whatsoever necessary or appropriate to be done in
and about the premises as fully to all intents as he might or could do if
personally present at the doing thereof, with full power of substitution and
resubstitution, hereby ratifying and confirming all that his said
attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to
be done by virtue hereof.
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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 indicated.
Signatures Title Date
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Chairman of the Board, May 02, 2001
/s/ William Riley Director and Chief
- -------------------------- Executive Officer
William Riley (Principal Executive
Officer)
Treasurer May 02, 2001
/s/ Judi Watson
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Judi Watson
Director May 02, 2001
/s/ Michael J. Gaines
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Michael J. Gaines
Director May 02, 2001
/s/ Pierce E. Marks, Jr.
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Pierce E. Marks, Jr.
Director May 02, 2001
Michael B. Stubbs
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Michael B. Stubbs
Director May 02, 2001
Michael Palmer
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Michael Palmer
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Index to Exhibits
Exhibit No. Description of Exhibit
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4.1 Specimen Certificate of Common Stock, $.10 par value per
share, of the Company (incorporated by reference to the
relevant exhibit to the Company's Registration Statement on
Form S-1 (Registration No. 33-3032)).
4.2 Restated Certificate of Incorporation of the Company
(incorporated by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 1987).
4.3 Bylaws of the Company (incorporated by reference to the
Company's Registration Statement on Form S-1 (Registration No.
33-3032)), as amended on May 7, 1987 (incorporated by
reference to the Company's Annual Report on Form 10-K for the
ended December 31, 1987).
5 Opinion of Debevoise & Plimpton (filed herewith).
23.1 Consent of Ernst & Young LLP (filed herewith).
23.2 Consent of Debevoise & Plimpton (included in Exhibit 5).
24 Powers of Attorney (filed herewith - see pages 7-8 of the
Registration Statement).
99 Moore-Handley, Inc. 2001 Incentive Compensation Plan (filed herewith).
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