AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 1, 1997.
Registration No. 33-89460
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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STB SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
TEXAS 75-1855896
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1651 NORTH GLENVILLE DRIVE
RICHARDSON, TEXAS 75081
(Address of Principal Executive Offices) (Zip Code)
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1995 LONG TERM INCENTIVE PLAN
(Full title of the plan)
WILLIAM E. OGLE
CHIEF EXECUTIVE OFFICER
STB SYSTEMS, INC.
1651 NORTH GLENVILLE DRIVE
RICHARDSON, TEXAS 75081
(972) 234-8750
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
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Copy to:
JOHN MCKNIGHT
LOCKE PURNELL RAIN HARRELL
(A PROFESSIONAL CORPORATION)
2200 ROSS AVENUE, SUITE 2200
DALLAS, TEXAS 75201
(214) 740-8000
CALCULATION OF REGISTRATION FEE
=====================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price per Aggregate Offering Registration Fee*
Share* Price*
- -----------------------------------------------------------------------------------------------------
Common Stock, $.01 150,000 shares $28.75 $4,312,500 $1,307.00
par value
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* Estimated solely for the purpose of calculating the registration fee. This
fee was calculated pursuant to Rule 457(c) and (h) under the Securities Act
of 1933, as amended, on the basis of the average of the high and low prices
for the Common Stock of the Company reported on the NASDAQ - National
Market System on October 30, 1997.
In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended, this Registration Statement also covers shares of Common Stock of
the Company issuable to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
This Post-Effective Amendment No. 1 to Registration Statement
No. 33-89460 on Form S-8 (the "Registration Statement") is being filed to
register 150,000 additional shares of Common Stock of STB Systems, Inc. (the
"Company") pursuant to General Instruction E to Form S-8; accordingly, the
contents of the Registration Statement are incorporated by reference in this
Post-Effective Amendment No. 1.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified by Item 1 and Item 2 of Part I of Form S-8 is
omitted from this filing in accordance with provisions of Rule 428 under the
Securities Act of 1933 (the "Securities Act") and the introductory Note to Part
I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents set forth below are incorporated by reference in this
Registration Statement. All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act"), prior to the filing 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 in this Registration Statement and to be part
hereof commencing on the respective dates on which such documents are filed.
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 such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Registration Statement.
(1) Annual Report on Form 10-K for the year ended October 31, 1996.
(2) Annual Report on Form 10-K/A for the year ended October 31, 1996.
(3) Quarterly Reports on Form 10-Q for the quarters ended April 30 and
January 31, 1997.
(4) The description of the Common Stock which is contained in the
company's Registration Statement on Form 8-A dated February 9, 1995,
filed pursuant to Section 12 of the Exchange Act, and all amendments
thereto and reports which have been filed for the purpose of updating
such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02-1 of the Texas Business Corporation Act (the "TBCA") permits a
corporation to indemnify certain persons, including officers and directors and
former officers and directors, and to purchase insurance with respect to
liability arising out of their capacity or status as officers and directors.
Article Eleven of the Company's Amended and Restated Articles of
Incorporation provides as follows:
The corporation shall indemnify any person who was, is, or is threatened
to be made a named defendant or respondent in a proceeding (as hereinafter
defined) because the person (a) is or was a director or officer of the
corporation or (b) while a director or officer of the corporation, is or
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was serving at the request of the corporation as a director, officer,
partner, venturer, proprietor, trustee, employee, agent, or similar
functionary of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan, or
other enterprise, to the fullest extent that a corporation may grant
indemnification to a person serving in such capacity under the Texas
Business Corporation Act, as the same exists or may hereafter be
amended.
Such right shall be a contract right and shall include the right to be
paid by the corporation for all expenses incurred in defending any
such proceeding in advance of its final disposition to the maximum
extent permitted under the Texas Business Corporation Act, as the same
exists or may hereafter be amended. If a claim for indemnification or
advancement of expenses hereunder is not paid in full by the
corporation within 90 days after a written claim has been received by
the corporation, the claimant may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim and,
if successful in whole or in part, the claimant shall be entitled to
be paid also the expenses of prosecuting such claim. It shall be a
defense to any such action that such indemnification or advancement of
costs of defense is not permitted under the Texas Business Corporation
Act, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its
Board of Directors or any committee thereof, special legal counsel, or
shareholders) to have made its determination prior to the commencement
of such action that indemnification of, or advancement of costs of
defense to, the claimant is permissible in the circumstances nor an
actual determination by the corporation (including its Board of
Directors or any committee thereof, special legal counsel, or
shareholders) that such indemnification or advancement is not
permissible shall be a defense to the action or create a presumption
that such indemnification or advancement is not permissible.
The corporation additionally may indemnify any person covered by the
grant of mandatory indemnification contained above to such further
extent as is permitted by law and may indemnify any other person to
the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending,
or completed action, suit, or proceeding, whether civil, criminal,
administrative, arbitrative, or investigative, any appeal in such an
action, suit, or proceeding, and any inquiry or investigation that
could lead to such an action, suit, or proceeding.
In addition, Article IX of the Company's Amended and Restated Bylaws
provides for such indemnification of officers and directors within the limits
set forth in the Amended and Restated Articles of Incorporation and applicable
provisions of Texas law. The Company has also entered into indemnification
agreements with each of its directors and director nominees which provide that
such persons will be indemnified to the fullest extent permitted by the Texas
Business Corporation Act.
Article Twelve of the Company's Amended and Restated Articles of
Incorporation additionally includes a provision eliminating the monetary
liability of a director to the Company or its shareholders for an act or
omission in the director's capacity as a director to the fullest extent
permitted by Texas law.
As of December 16, 1994, the Company, on the one hand, and Messrs. William
E. Ogle, William D. Balthaser, Jr. and Mark Sims (the "Founding Shareholders"),
on the other, entered into a Tax Allocation and Indemnification Agreement (the
"Tax Agreement") relating to their respective income tax liabilities. Since the
Company became subject to corporate income taxation as a C corporation and
terminated its status as an S corporation upon the completion of its initial
public offering of shares of its Common Stock, the reallocation of income and
deductions between the period during which the Company was treated as an S
corporation and a period during which the Company was or will be subject to
corporate income taxation as a C corporation may increase the taxable income of
one party in one period while decreasing that of another party in another
period. The Tax Agreement generally provides that the Founding Shareholders are
to be indemnified by the Company with respect to federal and state income taxes
(plus interest and penalties) arising due to taxable income shifted from a C
corporation taxable year to a taxable year in which the Company was an S
corporation, and that the Company is to
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be indemnified by the Founding Shareholders with respect to federal and state
income taxes (plus interest and penalties) arising due to taxable income
shifted from an S corporation taxable year to a C corporation taxable year;
provided, however, that only in the case of the Founding Shareholders'
obligation to indemnify the Company, such obligation shall be reduced by an
amount equal to the federal or state tax benefit (if any) derived by the
Company due to the shift of taxable income from a taxable year in which the
Company was an S corporation to a C corporation taxable year and shall not
exceed the amount, if any, by which (i) the amount of the reduction in the
liability for taxes and interest thereon of a Founding Shareholder that
results from the shifting of S corporation taxable income to a C corporation
taxable year of the Company, exceeds (ii) all reasonable costs incurred by
the Founding Shareholder reasonably attributable to securing such reduction
in liability for taxes. Any payment made by the Company to the Founding
Shareholders pursuant to the Tax Agreement may be considered by the Internal
Revenue Service or the state taxing authorities to be nondeductible by the
Company for income tax purposes.
The Company anticipates obtaining liability insurance coverage for its
officers and directors which will entitle the Company to be reimbursed up to
$5.0 million for certain indemnity payments it may be required or permitted
to make to such persons with respect to actions arising out of the
performance of their duties.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Locke Purnell Rain Harrell (A Professional Corporation).
23.1 Consent of Price Waterhouse LLP, Independent Accountants.
23.2 Consent of Locke Purnell Rain Harrell (A Professional Corporation)
(included in opinion filed as Exhibit 5.1).
*24.1 Powers of Attorney.
99.1 STB Systems, Inc. 1995 Long Term Incentive Plan (as amended and
restated effective November 1, 1996).
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* Previously filed
ITEM 9. UNDERTAKINGS.
The Company herein 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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in the
Registration Statement;
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PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Securities and Exchange Commission by the Company
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration 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.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Company'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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company 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 Company of expenses
incurred or paid by a director, officer or controlling person of the
Company 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 Company will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Richardson, State of
Texas on October 31, 1997.
STB SYSTEMS, INC.
By: /s/ WILLIAM E. OGLE
-----------------------------------
William E. Ogle
Chairman of the Board of Directors
and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Chief Executive Officer and October 31, 1997
/s/ WILLIAM E. OGLE Chairman of the Board of
- ------------------------- Directors (Principal Executive
William E. Ogle Officer)
Executive Vice President, Chief October 31, 1997
* Operating Officer, Assistant
- ------------------------- Secretary and Director
Randall D. Eisenbach
Chief Financial Officer, Vice October 31, 1997
* President of Strategic
- ------------------------- Marketing and Director
James L. Hopkins
Vice President of Sales and October 31, 1997
* Marketing and Director
- -------------------------
J. Shane Long
Director of Legal and Finance, October 31, 1997
* Secretary and Treasurer
- ------------------------- (Principal Financial Officer
Bryan F. Keyes and Principal Accounting Officer)
* Director October 31, 1997
- -------------------------
James J. Byrne
* Director October 31, 1997
- -------------------------
Lawrence E. Wesneski
/s/ DENNIS G. SABO Director October 31, 1997
- -------------------------
Dennis G. Sabo
*By: /s/ WILLIAM E. OGLE
- -------------------------
Attorney-in-fact
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INDEX TO EXHIBITS
EXHIBIT
NUMBER EXHIBIT
------- -------
5.1 Opinion of Locke Purnell Rain Harrell (A Professional
Corporation).
23.1 Consent of Price Waterhouse LLP, Independent Accountants.
23.2 Consent of Locke Purnell Rain Harrell (A Professional
Corporation) (included in opinion filed as Exhibit 5.1).
24.1 Powers of Attorney.
99.1 STB Systems, Inc. 1995 Long Term Incentive Plan (as amended
and restated effective November 1, 1996).