AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 3, 2003
REGISTRATION NO. 333-____________
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
____________________
TMI HOLDINGS, INC.
(Exact Name of Registrant as Specified in Its Charter)
FLORIDA
(State or Other Jurisdiction of
Incorporation or Organization)
65-0309540
(I.R.S. Employer
Identification No.)
4463 PAHE'E STREET, SUITE 203-B
LIHUE, HI 96766
(Address of Principal Executive Offices, Including Zip Code)
____________________
Consulting Agreement
(Full Title of the Plan)
____________________
W. Michael Sessions
4463 Pahe'e Street, Suite 203-B
Lihue, HI 96766
(808) 368-1819
(Name, Address, and Telephone Number of Agent for Service)
COPIES TO:
Craig V. Butler, Esq.
The Lebrecht Group, APLC
22342 Avenida Empresa, Suite 220
Rancho Santa Margarita, California 92688
(949) 635-1240
CALCULATION OF REGISTRATION FEE
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price per Share(1) Aggregate Offering Price Registration Fee
- ---------------------- ------------- ---------------------------- ------------------------- -----------------
Common Stock,
Par Value $0.001 250,000(2) $ 0.76 $ 190,000 $ 17.48
- ---------------------- ------------- ---------------------------- ------------------------- -----------------
TOTAL REGISTRATION FEE 250,000 $ 0.76 $ 190,000 $ 17.48
- ---------------------- ------------- ---------------------------- ------------------------- -----------------
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c) based on the average of the closing bid
and ask price as reported by the NASDAQ Over-The-Counter Bulletin Board on
February 26, 2003.
(2) Represents shares of common stock to be issued to consultants of the
Company.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
Note: The document(s) containing the information concerning the Agreement
between TMI Holdings, Inc. ("TMI" or "Registrant") and Richard Dwyer, required
by Item 1 of Form S-8 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the statement of availability of registrant information,
employee benefit plan annual reports and other information required by Item 2 of
Form S-8 will be sent or given to participants as specified in Rule 428. In
accordance with Rule 428 and the requirements of Part I of Form S-8, such
documents are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this registration statement on Form S-8 (the
"Registration Statement") or as prospectuses or prospectus supplements pursuant
to Rule 424. TMI will maintain a file of such documents in accordance with the
provisions of Rule 428. Upon request, TMI shall furnish to the Commission or
its staff a copy or copies of all of the documents included in such file.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from the Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act"), and the
Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in this
Registration Statement:
(i) The Registrant's Annual Report on Form 10-KSB for the year ended
December 30, 2001 filed with the Commission on April 1, 2002.
(ii) The Registrant's Quarterly Report on Form 10-QSB for the quarter ended
September 29, 2002 filed with the Commission on November 18, 2002.
(iii) All other reports and documents previously and subsequently filed by
the Registrant before and after the date of this Registration Statement pursuant
to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
and 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 to be incorporated by reference and to be
a part hereof from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our Amended and Restated Articles of Incorporation provides that the Company
shall, to the fullest extent permitted by law, indemnify its officers and
directors from and against any and all expenses, liabilities or other matters.
Under Section 607.0850(1) of the Florida Statutes, a corporation shall have
power 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,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that he or she is
or was a director or officer of the corporation. Such indemnity may be against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with such action, suit
or proceeding, if the person to be indemnified acted in good faith and in a
manner reasonably believed to be in, or not opposed to, the best interests of
the corporation and, with respect to any criminal action or proceeding, he or
she must not have had reasonable cause to believe his or her conduct was
unlawful.
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Under Section 607.0850(2) of the Florida Statutes, a corporation shall have
power to indemnify any person who was or is a party to any threatened, pending
or completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he or she is or was a director
or officer of the corporation (including attorneys' fees) actually and
reasonably incurred by him or her in connection with the defense or settlement
of such action or suit if he or she acted in good faith and in a manner such
person reasonably believed to be in, or not opposed to, the best interest of the
corporation.
Under Section 607.0850(12) of the Florida Statutes, a corporation shall have the
power to purchase and maintain insurance on behalf of any person who is or was a
director or officer of the corporation against any liability asserted against
him or her or incurred by such person in any capacity, or arising out of his or
her status as such, whether or not the corporation would have the power to
indemnify him or her against such liability under the provisions of the law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
3.1(1) Amended and Restated Articles of Incorporation of the Registrant
(incorporated by reference)
3.2(1) Amended and Restated Bylaws of the Registrant (incorporated by
reference)
5.1 Opinion of The Lebrecht Group, APLC
23.1 Consent of The Lebrecht Group, APLC (included in Exhibit 5.1)
23.2 Consent of Berkowitz Dick Pollack & Brant, Certified Public
Accountants
(1) Incorporated by reference from the exhibit filed with the Registrant's
Registration Statement on Form SB-2 (File No. 333-5190-A), as originally filed
with the Securities and Exchange Commission.
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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:
(i) To include any prospectus required by section 10(a) (3) of
the Securities Act of 1933;
(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; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registra-
tion statement or any material change to such information in the
registration statement; provided, however, that paragraphs (a)(1)(i)
and (a)(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 Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference 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.
(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, 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 Securities
Act of 1933 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 Act
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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
Pursuant to the requirements of the Securities Act of 1933, Registrant
certifies that it has reasonable grounds to believe that is 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 Lihue, State of Hawaii, on February 27, 2003.
TMI Holdings, Inc.
/s/ W. Michael Sessions
-----------------------------
By: W. Michael Sessions
Its: President
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:
Signature Title Date
- --------- ----- ----
/s/ W. Michael Sessions President, Secretary February 27, 2003
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W. Michael Sessions and Director
/s/ John W. Meyers Treasurer and February 27, 2003
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John W. Meyers Director
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