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As filed with the Securities and Exchange Commission on August 6, 1999
Registration No.
------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TROY GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0807798
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2331 SOUTH PULLMAN STREET
SANTA ANA, CALIFORNIA 92705
(Address of Principal Executive Offices) (Zip Code)
------------------------
TROY GROUP, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
------------------------
PATRICK J. DIRK
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
TROY GROUP, INC.
2331 SOUTH PULLMAN STREET
SANTA ANA, CALIFORNIA 92705
(Name and address of agent for service)
(949) 250-3280
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
Proposed Maximum PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE Offering AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED (1) Price per Share (2) PRICE (2) REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 200,000 shares $ 6.59 $ 1,318,000 $ 366.61
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, (the "Securities Act"), this Registration Statement includes an
indeterminate number of additional shares which may be offered and sold as
a result of anti-dilution provisions described in the above-referenced
plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee and calculated pursuant to Rule 457(h) under the
Securities Act on the basis of the average between the high and low sales
prices of the Registrant's Common Stock on August 4, 1999, as reported by
the Nasdaq National Market.
<PAGE>
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of Troy Group, Inc. (the "Company") filed with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
1. The Company's Registration Statement (File No. 333-51523) on Form S-1,
together with all amendments thereto, which was declared effective by
the Commission on July 21, 1999;
2. The Company's prospectus filed with the Commission on July 22, 1999
pursuant to Rule 424(b) promulgated under the Securities Act, in
connection with the Company's Registration Statement on Form S-1 (File
No. 333-51523), in which there is set forth the audited financial
statements for the Company's fiscal years ended November 30, 1997 and
1998;
3. The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed with the Commission on June
8, 1998 pursuant to Section 12 of the Securities Exchange Act of 1934,
as amended, (the "Exchange Act") including any amendments or reports
filed for the purpose of updating such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all shares of Common Stock offered pursuant to
this Registration Statement have been sold or that de-registers all shares of
Common Stock then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the
date of filing of such documents.
The consolidated financial statements of the Company incorporated
by reference in this Registration Statement have been audited by McGladrey &
Pullen, LLP, independent public accountants, for the periods indicated in
their report thereon which is included in the Company's Registration
Statement on Form S-1. Such consolidated financial statements have been
incorporated herein by reference in reliance upon the report of McGladrey &
Pullen, LLP, given on the authority of that firm as experts in accounting and
auditing. To the extent that McGladrey & Pullen, LLP audits and reports on
the financial statements of the Company issued at future dates, and consents
to the use of their report thereon, such financial statements will also be
incorporated by reference in the Registration Statement in reliance upon
their report and said authority as experts.
ITEM 4. DESCRIPTION OF SECURITIES.
The Company's Common Stock to be offered pursuant to this
Registration Statement has been registered under Section 12 of the Exchange
Act as described in Item 3 of this Part II.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation limits the liability of
its directors to the fullest extent permitted under the Delaware General
Corporation Law. Specifically, directors of the Company will not be liable
to the Company or its stockholders for monetary damages for any breach of
fiduciary duty by such a director, except for liability for: any breach of
the director's duty of loyalty to the Company or its stockholders; acts or
omissions not in good faith or which involve intentional; misconduct or a
knowing violation of law; corporate distributions, including dividends, stock
distributions and redemptions, which are in contravention of restrictions in
Delaware law, the Company's Certificate of Incorporation or Bylaws, or any
agreement to which the Company is a party; and any transaction from which a
director derives an improper personal benefit. This provision will generally
not limit liability under state or federal securities laws.
Delaware law and the Company's Certificate of Incorporation provide
that the Company shall, under certain circumstances and subject to certain
limitations, indemnify any person made or threatened to be made a party to a
proceeding by reason of that person's former or present official capacity
with the Company against judgments, penalties, fines, settlements and
reasonable expenses. Any such person is also entitled, subject to certain
limitations, to payment or reimbursement of reasonable expenses in advance of
the final disposition of the proceeding.
The Company has also entered into indemnification agreements with
all of its directors and executive officers. Under these agreements the
Company has agreed to indemnify and hold each harmless from and against any
claims, liability, damages or expenses incurred by them in or arising out of
their status, capacities and activities with respect to the Company to the
maximum extent permitted by Delaware law. The Company believes that these
agreements are necessary to attract and retain qualified persons as directors
and executive officers.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
No securities are to be offered or resold pursuant to this
Registration Statement.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION OF EXHIBITS
- ----------- -----------------------
5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly LLP (Filed
herewith electronically)
23.1 Consent of Oppenheimer Wolff & Donnelly LLP (Included in Exhibit
5.1)
23.2 Consent of McGladrey & Pullen, LLP (Filed herewith
electronically)
24.1 Power of Attorney (Included on page 5 of this Registration
Statement)
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:
2
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(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 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) under the Securities Act
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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.
Provided, however, that paragraphs (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 with or furnished to the Commission by the
registrant 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.
(b) 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) 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
previsions, 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 in the
successful defense of any action,
3
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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.
4
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SIGNATURES
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 of 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 Santa Ana, State of California, on August 5, 1999.
TROY GROUP, INC.
By: /s/ Patrick J. Dirk
----------------------------
Patrick J. Dirk
Its: President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Patrick J. Dirk and Del L. Conrad, and each of them, as
such person=s true and lawful attorney-in-fact and agent, each with full powers
of substitution and re-substitution, for such person and in such person=s name,
place and stead, in any and all capacities, to sign any or all amendments
(including post effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed on August 5, 1999 by the following persons in the
capacities indicated.
SIGNATURE TITLE
- --------- -----
/s/ Patrick J. Dirk Chairman of the Board, President and Chief
- ------------------------
Patrick J. Dirk Executive Officer (Principal Executive Officer)
/s/ Del L. Conrad Chief Financial Officer, Treasurer and Secretary
- ------------------------
Del L. Conrad (Principal Financial and Accounting Officer)
/s/ Brian P. Dirk Director
- ------------------------
Brian P. Dirk
/s/ Norman B. Keider Director
- ------------------------
Norman B. Keider
/s/ John B. Zaepfel Director
- ------------------------
John B. Zaepfel
/s/ William P. O'Reilly Director
- ------------------------
William P. O'Reilly
/s/ Gene A. Bier Director
- ------------------------
Gene A. Bier
/s/ Dr. Harold L. Clarke Director
- ------------------------
Dr. Harold L. Clarke
5
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
NO. ITEM METHOD OF FILING
- --- ---- ----------------
<S> <C> <C>
5.1 Opinion and Consent of Oppenheimer
Wolff & Donnelly LLP.................. Filed herewith electronically.
23.1 Consent of Oppenheimer Wolff &
Donnelly LLP.......................... Included in Exhibit 5.1.
23.2 Consent of McGladrey & Pullen, LLP.... Filed herewith electronically.
24.1 Power of Attorney..................... Included on page 5 of this Registration Statement.
</TABLE>
<PAGE>
EXHIBIT 5.1
[Oppenheimer Wolff & Donnelly LLP Letterhead]
August 5, 1999
Troy Group, Inc.
2331 South Pullman Street
Santa Ana, California 92705
RE: TROY GROUP, INC.
REGISTRATION STATEMENT ON FORM S-8
Ladies/Gentlemen:
We have acted as counsel to Troy Group, Inc., a Delaware corporation (the
"Company"), in connection with the registration by the Company of 200,000
shares (collectively, the "Shares") of common stock, $.01 par value per share
(the "Common Stock") of the Company issuable under the Company's 1998 Employee
Stock Purchase Plan (the "Plan"), pursuant to a Registration Statement on Form
S-8 filed with the Securities and Exchange Commission on August 5, 1999 (the
"Registration Statement").
In acting as counsel for the Company and arriving at the opinions expressed
below, we have examined and relied upon originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company,
agreements and other instruments, certificates of officers and representatives
of the Company, certificates of public officials and other documents as we have
deemed necessary or appropriate as a basis for the opinions expressed herein.
In connection with our examination, we have assumed the genuiness of all
signatures, the authenticity of all documents tendered to us as originals, the
legal capacity of all natural persons and the conformity to original documents
of all documents submitted to us as certified or photostatic copies.
Based on the foregoing, and subject to the qualifications and limitations stated
herein, it is our opinion that:
1. The Company has the corporate authority to issue the Shares in the manner
and under the terms set forth in the Registration Statement.
2. The Shares have been duly authorized and, when issued, delivered and paid
for in accordance with the Plan as set forth in the Registration Statement,
will be validly issued, fully paid and nonassessable.
We express no opinion with respect to laws other than those of the State of
Delaware and the federal laws of the United States of America, and we assume no
responsibility as to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to its use as part of the Registration Statement.
Very truly yours,
OPPENHEIMER WOLFF & DONNELLY LLP
/s/ Oppenheimer Wolff & Donnelly LLP
<PAGE>
EXHIBIT 23.2
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 and in the related Prospectus, of our report, dated
January 6, 1999, relating to the consolidated financial statements of Troy
Group, Inc., included in the registration statement (File No. 333-51523) on
Form S-1. We also consent to the reference to our Firm under the caption
"Incorporation of Documents by Reference" in such Registration Statement on
Form S-8.
MCGLADREY & PULLEN, LLP
/s/ MCGLADREY & PULLEN, LLP
Anaheim, California
August 4, 1999
