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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1998
REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
INTERCORP EXCELLE INC.
----------------------
(Exact Name of Registrant as Specified in Its Charter)
ONTARIO, CANADA
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(State or Other Jurisdiction of Incorporation or Organization)
N/A
---
(I.R.S. Employer Identification No.)
1880 ORMONT DRIVE, TORONTO, ONTARIO, CANADA, M9L2V4
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(Address, including Zip Code, of Principal Executive Offices)
1997 STOCK OPTION PLAN
----------------------
(Full Titles of the Plans)
Copies To:
ARNOLD UNGER JAY M. KAPLOWITZ, ESQ.
CHIEF EXECUTIVE OFFICER ARTHUR S. MARCUS, ESQ.
INTERCORP EXCELLE INC. GERSTEN, SAVAGE, KAPLOWITZ & FREDERICKS, LLP
1880 ORMONT DRIVE 101 EAST 52ND STREET
TORONTO, ONTARIO M9L2V4 CANADA NEW YORK, NEW YORK 10022
(416) 744-2124 (212) 752-9700
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box [X]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
TITLE OF SECURITIES AMOUNT BEING PROPOSED PROPOSED AMOUNT OF
TO BE REGISTERED REGISTERED MAXIMUM MAXIMUM REGISTRATION FEE
OFFERING PRICE PER AGGREGATE
SECURITY(1) OFFERING PRICE
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<S> <C> <C> <C> <C>
Common Stock, no 500,000 $5.50 $2,750,000 $811.25
par value
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</TABLE>
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(1) The price is estimated in accordance with Rule 457(h)(1) under the
Securities Act of 1933, as amended, solely for the purpose of calculating
the registration fee. The last sale closing price as reported on the
Nasdaq Stock Market on October 6, 1998 (within 5 days prior to the filing
of this Registration Statement) was $5.50.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the Note to Part I of the Form S-8, the information required
by Part I is not filed with the Securities and Exchange Commission.
The Company will provide without charge to each person to whom a copy of
a Section 10(a) Prospectus hereunder is delivered, upon the oral or written
request of such person, a copy of any document incorporated in this
Registration Statement by reference, except exhibits to such documents.
Requests for such information should be directed to Intercorp Excelle Inc.,
1880 Ormont Drive, Toronto, Ontario M9L2V4 Canada, (416) 744-2124.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Intercorp Excelle Inc. (the "Company")
with the Commission are incorporated herein by reference:
(1) The Company's Prospectus filed October 10, 1997 filed under
Rule 424(b) (File No. 333-7202.
(2) The Company's Annual Report on Form 10-KSB for the Year Ended
January 31, 1998.
(3) The Company's Proxy Statement on Form 14A filed on June 1, 1998.
(4) The Company's Quarterly Reports on Form 10-QSB for the Quarter
Ended April 30, 1998 and the Quarter Ended July 31, 1998.
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In addition to the foregoing, 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, prior to the filing of a post-effective amendment
indicating that all of the securities offered hereunder have been sold or
deregistering all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference in this
Registration Statement 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 subsequently filed document that is also
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
All information appearing in this Registration Statement is qualified in its
entirety by the information and financial statements (including notes
thereto) appearing in the documents incorporated herein by reference, except
to the extent set forth in the immediately preceding statement.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus is delivered, upon the oral or written
request of such person, a copy of any document incorporated in this
Registration Statement by reference, except exhibits to such documents.
Requests for such information should be directed to Intercorp Excelle Inc.,
1880 Ormont Drive, Toronto, Ontario M9L2V4 Canada, (416) 744-2124.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS
Not Applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The by-laws of the Company provide that the Company shall indemnify to
the fullest extent permitted by Canadian law directors and officers (and
former officers and directors) of the Company. Such indemnification includes
all costs and expenses and charges reasonably incurred in connection with the
defense of any civil, criminal or administrative action or proceeding to which
such person is made a party by reason of being or having been an officer or
director of the Company if such person was substantially successful on the
merits in his or her defense of the action and he or she acted honestly and
in good faith with a view to the best interests of the Company, and if a
criminal or administrative action that is enforced by a monetary penalty,
such person had reasonable grounds to believe his or her conduct was lawful.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company and the Underwriters pursuant to the foregoing provisions, or
otherwise, the Company 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
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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 of
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
5.1 Opinion and Consent of Wildeboer Rand Thomson Apps & Dellece
10.2 1997 Stock Option Plan (Incorporated by reference to the
Company's Registration Statement, Form SB-2, Amendment No. 2,
filed September 8, 1997)
23.1 Consent of Schwartz Levitsky Feldman, independent auditors
ITEM 9. UNDERTAKINGS
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;
(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 suit information in the
registration statement,
PROVIDED, HOWEVER, that paragraphs 9(a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the small business
issuer pursuant to Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this 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.
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(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) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the small business issuer pursuant to any charter provision,
by-law, contract, arrangement, statute, 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 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
small business issuer 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 small business
issuer 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 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, 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 Toronto, Province of Ontario, Canada
on the 7th day of October, 1998.
INTERCORP EXCELLE INC.
By: /s/ Arnold Unger
----------------
Arnold Unger
Co-Chairperson and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Arnold Unger Co-Chairperson and Chief Executive Officer 10/7/98
----------------
Arnold Unger
/s/ Renee Unger Co-Chairperson and President 10/7/98
----------------
Renee Unger
/s/ Fred Burke Director, Chief Operating Officer, Chief Financial 10/7/98
-------------- Officer/Principal Accounting Officer, Secretary
Fred Burke
/s/ Lori Gutmann Director 10/7/98
----------------
Lori Gutmann
/s/ Alysee Unger Director 10/7/98
----------------
Alysee Unger
/s/ John Rothschild Director 10/7/98
-------------------
John Rothschild
/s/ Taketo Murata Director 10/7/98
-----------------
Taketo Murata
</TABLE>
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EXHIBIT INDEX
<TABLE>
<C> <S>
5.1 Opinion and Consent of Wildeboer Rand Thomson Apps & Dellece
10.2 1997 Stock Option Plan (Incorporated by reference from Form SB-2,
Amendment No. 2 filed September 8, 1997)
23.1 Consent of Schwartz Levitsky Feldman, independent auditors
</TABLE>
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Ex. 5.1
Wildeboer Rand Thomson Apps & Dellelce
Suite 810, P.O. Box
1 First Canadian Place
Toronto, Ontario M5X 1A9
October 7, 1998
Intecorp Excelle, Inc.
1880 Ormont Drive
Toronto, Ontario
Canada M9L 2V4
Gentlemen:
You have requested our opinion, as counsel for Intercorp Excelle, Inc.,
in Ontario, Canada (the "Company"), in connection with the registration
statement on Form S-8 (the "Registration Statement"), under the Securities
Act of 1933 (the "Act"), being filed by the Company with the Securities and
Exchange Commission.
The Registration Statement relates to an offering of 500,000 shares of
common stock, no par value ("Common Stock") underlying the options (the
"Selling Stockholder Shares"), issued pursuant to the 1997 Stock Option Plan.
We have examined such records and documents and made such examinations
of law as we have deemed relevant in connection with this opinion. It is our
opinion that the Selling Stockholder Shares, upon receipt by the Company of
the exercise price therefore, fully paid, validly issued and are
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In so doing, we do not admit that we are in the
category of persons whose consent is required under Section 7 of the Act of
the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
/s/ Wildeboer Rand Thomson Apps & Dellelce
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Ex. 23.1
Consent of Independent Accountants
Board of Directors
Intercorp Excelle Inc.
We consent to the incorporation by reference in the Registration Statement of
Intercorp Excelle Inc., on Form S-8 of our report, dated March 13, 1998,
relating to the consolidated balance sheets of Intercorp Excelle, Inc. and
subsidiaries as of January 31, 1998 and January 31, 1997, and the related
consolidated statements of income, changes in stockholders' equity and cash
flows for each of the years in the three years period ended January 31, 1998,
which report appears in the January 31, 1998 Annual Report on Form 10-KSB of
Intercorp Excelle Inc.
Toronto, Ontario Schwartz Levitsky Feldman
October 7, 1998
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