Registration No. 33-
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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
National Technical Systems, Inc.
(Exact name of registrant as specified in its charter)
California 95-4134955
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
24007 Ventura Boulevard, Calabasas, California 91302
(Address of principal executive offices)
XXCAL, Inc. Stock Option Plan
(Full title of the plan)
Lloyd Blonder
Senior Vice President and
Chief Financial Officer
National Technical Systems, Inc.
24007 Ventura Boulevard
Calabasas, California 91302
(Name and address of agent for service)
(818) 591-0776
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed maximum Proposed maximum Amount of
securities registered offering price aggregate registration
to be per share offering fee
registered price(1)
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Common Stock, 214,622 $5.69 $1,221,199.10 $360.25
$.01 par value shares(2)
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with 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 reported on the
NASDAQ National Market System on November 20, 1998.
(2) Such shares represent options assumed by the Registrant pursuant to an
Agreement and Plan of Merger dated as of August 21, 1998, by and among
Registrant, NTS Acquisition Corp. and XXCAL, Inc.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
INTRODUCTORY STATEMENT
Pursuant to the Agreement and Plan of Merger (the "Agreement"),
dated as of August 21, 1998, as amended, by and among National Technical
Systems, Inc. ("Registrant"), NTS Acquisition Corp., a wholly owned subsidiary
of Parent ("Merger Subsidiary") and XXCAL, INC., ("XXCAL"), Merger Subsidiary
merged with and into XXCAL, whereupon XXCAL became a wholly owner subsidiary of
Registrant. XXCAL's common stock, no par value ("XXCAL Common Stock"), is no
longer transferable, and certificates evidencing shares of XXCAL Common Stock
represent only the right to receive shares of Registrant's Common Stock in
accordance with the terms of the Agreement. Pursuant to the Agreement, each
outstanding option to purchase XXCAL Common Stock ("XXCAL Option") was
automatically converted into an option to purchase the number of shares of
Common Stock equal to the number of shares of XXCAL Common Stock that could have
been purchased under the XXCAL Option multiplied by 1.2126 (the "Exchange
Ratio"), at a price per share of Common Stock equal to the option exercise price
determined pursuant to the XXCAL Option divided by the Exchange Ratio.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by the Registrant with the
Commission and are hereby incorporated by reference in this Registration
Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended January 31, 1998.
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended April 30, 1998 and July 31, 1998.
(c) The Registrant's Registration Statement on Form S-8
(Registration No. 33-48211), which includes a description of the Registrant's
Common Stock, $.01 par value.
(d) The Registrant's current Reports on Form 8-K dated May 8, 1998
and November 4, 1998.
(e) All documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 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 a part hereof from the date of filing of such
documents.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Incorporation contain a provision
limiting the personal liability of directors to the Registrant or its
shareholders for monetary damages for breach of fiduciary duty as a director.
Such provision absolves directors of liability for negligence in the performance
of their duties, including gross negligence. Directors remain liable for
breaches of the duty of loyalty to the Registrant and its shareholders as well
as for acts or omissions not taken in good faith or which involve intentional
misconduct or a knowing violation of law and transactions from which a director
derived improper personal benefit. In addition, the Registrant's Articles of
Incorporation do not absolve directors of liability for unlawful dividend or
stock repurchases or redemptions to which a negligence standard presently
applies under the California General Corporation Law (the "CGCL").
The Registrant's By-laws provide that each person who is or was a
director, legal representative, officer or employee of the Registrant (or was
serving at the request of the Registrant as a director, legal representative,
officer or employee of any other entity), will be indemnified and held harmless
by the Registrant to the fullest extent authorized by the CGCL (as it may be
amended to allow for broader indemnification rights) from any liability incurred
as a result of such service. The Registrant's By-laws provide that the rights to
indemnification and the payment of expenses conferred therein will not be
exclusive of any other right that any person may have or acquire under any
statute, provision of the Articles of Incorporation, by-law, agreement, vote of
shareholders or disinterested directors or otherwise. The Registrant's By-laws
also provide that the Registrant may maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the Registrant against
any liability asserted against such person and incurred by such person in any
such capacity, whether or not the Registrant would have the power to indemnify
such person against such liability under the CGCL. The Registrant maintains this
insurance coverage for its officers and directors as well as insurance coverage
to reimburse the Registrant for potential costs of its corporate indemnification
of officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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ITEM 8. EXHIBITS.
Exhibit
Number Description
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4.1 Articles of Incorporation of the Registrant (Incorporated herein by
reference to Exhibit 3(i) to the Registrant's Annual Report on Form
10-K for the fiscal year ended January 31, 1997 (No. 33-66795), as
filed with the Commission on April 30, 1997.
4.2 By-laws of the Registrant (Incorporated herein by reference to
Exhibit 3(ii) to the Registrant's Annual Report on Form 10-K for the
fiscal year ended January 31, 1997 (No. 33-66795), as filed with the
Commission on April 30, 1997.
4.3 Form XXCAL, Inc. Stock Option Agreement.
5.1 Opinion of Sheppard, Mullin, Richter & Hampton LLP, Counsel to
Registrant, as to the legality of the shares being registered under
this Registration Statement.
23.1 Consent of Sheppard, Mullin, Richter & Hampton LLP, (included in its
opinion filed as Exhibit 5.1).
23.2 Consent of Ernst & Young, LLP.
24.1 Power of Attorney (included on the signature pages hereof).
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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; (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 Registration Statement or any material change to such
information in the Registration Statement; provided, however, that clauses (i)
and (ii) do not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic reports filed
by the Registrant pursuant to Section 13 or 15(d) of the 1934 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 15(d) of the 1934 Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the 1934 Act)
that it 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 described in Item 6 of this
Registration Statement, 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 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
Company 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 Calabasas, State of California on November 23, 1998.
NATIONAL TECHNICAL SYSTEMS, INC.
By: /s/ Jack Lin
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Jack Lin, President
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POWER OF ATTORNEY
We, the undersigned officers and directors of National Technical
Systems, Inc., hereby severally constitute and appoint Jack Lin and Aaron Cohen,
and each of them singly, our true and lawful attorney, with full power to them,
to sign for us in our names in the capacities indicated below, this Registration
Statement and any and all post-effective amendments to this Registration
Statement, and generally to do all things in our name and on our behalf in such
capacities to enable National Technical Systems, Inc. to comply with the
provisions of the Securities Act of 1933, as amended, and all requirements of
the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
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 stated.
Signature Title Date
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President,
/s/ Jack Lin (Principal Executive November 23, 1998
- ----------------------- Officer)
Jack Lin
Executive
/s/ Arthur Edelstein Vice-President, November 23, 1998
- ----------------------- and Director
Arthur Edelstein
/s/ Lloyd Blonder Senior November 23, 1998
- ----------------------- Vice-President
Lloyd Blonder and Treasurer
(Principal Financial
and Accounting
Officer)
/s/ William L. Traw Group November 23, 1998
- ----------------------- Vice-President and
William L. Traw Director
/s/ Richard D. Short Group November 23, 1998
- ----------------------- Vice-President and
Richard D. Short Director
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/s/ William McGinnis Group November 23, 1998
- ----------------------- Vice-President and
William McGinnis Director
/s/ Aloysius Casey Chairman November 23, 1998
- ----------------------- of the Board
Aloysius Casey
/s/ Aaron Cohen Vice Chairman November 23, 1998
- ----------------------- of the Board
Aaron Cohen and Senior Executive
Vice President
/s/ Harry Derbyshire Director November 23, 1998
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Harry Derbyshire
/s/ Robert I. Lin Director November 23, 1998
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Robert I. Lin
/s/ Ralph F. Clements Director November 23, 1998
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Ralph F. Clements
/s/ Stanley Schoen Director November 23, 1998
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Stanley Schoen
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EXHIBIT INDEX
Exhibit Sequential
Number Description Page
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4.1 Articles of Incorporation of the Registrant (Incorporated
herein by reference to Exhibit 3(i) to the Registrant's
Annual Report on Form 10-K for the fiscal year ended
January 31, 1997 (No. 33-66795), as filed with the
Commission on March 21, 1994).
4.2 By-laws of the Registrant (Incorporated herein by
reference to Exhibit 3.2 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended
January 31, 1997 (No. 33-66795), as filed with the
Commission on March 21, 1994).
4.3 Form XXCAL, Inc. Stock Option Agreement. 10
5.1 Opinion of Sheppard, Mullin, Richter & Hampton LLP,
Registrant, as to Company, as to the legality of the shares
being registered under this Registration Statement. 15
23.1 Consent of Sheppard, Mullin, Richter & Hampton LLP,
(included in its opinion filed as Exhibit 5.1).
23.2 Consent of Ernst & Young, LLP. 17
24.1 Power of Attorney (included on the signature pages hereof).
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EXHIBIT 4.3
OPTION AGREEMENT
Preamble
THIS AGREEMENT made this ____ day of _____ 1997, at Los Angeles,
California, by and between XXCAL, Inc. (hereinafter referred to as "Optionor")
and _______________ hereinafter referred to as "Optionee").
Recitals
WHEREAS, Optionor has preferred shares of stock presently unissued;
and
WHEREAS, Optionee desires to acquire the exclusive right to purchase,
without becoming obligated to purchase the securities at an agreed price and
under specified terms and conditions:
NOW THEREFORE, it is agreed as follows:
Grant to Option
1. Optionor hereby grants to Optionee the exclusive right to purchase
_____ shares of Optionor at $___.00 per share, and under the terms and
conditions set forth herein.
Option Period
2. This Option shall continue until __:00 P.M., ________XX' ____.
Consideration
3. This option is granted in exchange for Optionor receiving a
valuable consideration, receipt of which is hereby acknowledged.
Application of Consideration to Purchase Price
4. If this option or any extension thereof is exercised in accordance
with its terms, then the cash consideration paid Optionor by Optionee shall
apply to the purchase price.
Retention of Consideration
5. In the event this option or any extension thereof is not exercised,
all sums paid and services rendered to Optionor by Optionee shall be retained by
Optionor in consideration of the granting of this option.
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Exercise of Option
6. If Optionee is not in breach of this Agreement, and is an employee
of Optionor in good standing, he/she may exercise this option in whole or in
part by tendering U.S. Currency to Optionor, for not less than 100 shares of
securities at one time, said securities to be purchased at the rate of ____
Dollars ($__.00) per share. Optionee may not exercise this option for more than
one-fifth (1/5) of the total number of option shares in any one year, one year
being the period of ________ _______ to _______ _____ commencing with _____ __,
____ to _____ __, ____ however, provided Optionee has met all the terms of this
option as set out hereinafter, he/she shall be entitled to exercise this option
on _____ __, ____ for all option shares not previously purchased.
Automatic Termination
7. If Optionee fails to exercise his/her option in accordance with its
terms and within the option period or any extension thereof, then this option
and the rights of the Optionee shall automatically and immediately terminate
without notice. Thereafter, Optionee agrees that he/she will properly execute,
acknowledge, and deliver to Optionor, with ten (10) days of request therefor, a
release, or any other document required by Optionor, or to verify the
termination of this Option Agreement.
Assignability of Option
8. Optionee may not assign this Agreement. In the event an attempted
assignment is made, in violation of this provision, then Optionee's rights under
this Agreement shall automatically terminate without notice.
Notices
9. Unless otherwise provided herein, any notice, tender, or delivery
to be given hereunder by either party to the other may be effected by personal
delivery in writing or by registered or certified mail, postage prepaid, return
receipt requested, and shall be deemed communicated as of mailing. Mailed
notices shall be addressed as set forth below, but each party may change its
address by written notice in accordance with this paragraph.
To Optionor: XXCAL, Inc.
11500 W. Olympic Blvd.
Suite 459
Los Angeles, CA 90064
To Optionee: ____________________
____________________
____________________
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Administrative Committee Approval
10. This Option is contingent upon the approval of a majority vote of
the Administrative Committee of Optionor Key Employee Stock Ownership Plan.
Entire Agreement
11. This instrument contains the entire agreement between the parties
relating to the option herein granted. Any oral representation or modifications
concerning this instrument shall be of no force and effect, excepting a
subsequent modification in writing, signed by the party to be charged.
Attorney's Fees
12. In the event of any controversy, claim, or dispute between the
parties hereto, arising out of or relating to this Agreement or the breach
thereof, the prevailing party shall be entitled to recover from the losing
party, reasonable expenses, attorney's fees, and costs.
Binding Effect
13. This Agreement shall bind and inure to the benefit of the
respective heirs, personal representatives, successors, and assigns of the
parties hereto, except as herein above expressly provided.
Key Employee Stock Ownership Plan
14. All the terms and conditions of the Optionor Key Employee Stock
Ownership Plan are incorporated herein by reference and Optionee agrees to be
bound by the decision of the Administrative Committee of the Plan and the laws
of the State of California as they apply to this option.
Restrictions on Transfer
15. Optionee agrees to the terms set forth in Article VI (3) of the
Plan and agrees that their stock ownership shall be subject to the foregoing
restrictions and may bear legend as follows:
"No valid voluntary or involuntary transfer (whether by sale,
encumbrance, exchange, bequest, inheritance, or other
disposition) of any shares of stock shall be made by any issue
(other than the Trustee of the Plan), his heir or
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representative, unless such transfer is made in
compliance with the following provision:
"(1) Said holder of such shares shall give written notice by
registered or certified mail to XXCAL, Inc. (Company), at 11500
W. Olympic Blvd., Suite 459, Los Angeles, CA 90064, specifying
the identify of the proposed transferee, the price offered for
the shares of interests therein by the proposed transferee and
the other terms and conditions of the proposed transfer'.
"(2) For a period of fourteen (14) days after receipt of notice,
Company shall have the option to purchase all (but not less than
all) of such shares at the price and upon the terms offered
therefor by the proposed transferee or at the fair market value
of such shares as determined by the Committee as of the last day
of the preceding plan year in case of the death of a former
participant or other involuntary transfer".
"(3) The Company may refuse to transfer on its books any of such
shares which are attempted to be transferred other than in
compliance herewith".
Further, Optionee agrees that the sale of transfer of the purchase
stock shall be restricted by and subject to, a legend condition pursuant to
Section 260.141.11 of California Corporation Rules as set forth in California
Administrative Code.
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Execution
IN WITNESS WHEREOF, the parties hereto have executed this Option
Agreement the day and year first above written.
OPTIONOR: XXCAL, INC.
By:___________________________
OPTIONEE:
By:___________________________
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EXHIBIT 5.1
November 23, 1998
Board of Directors
National Technical Systems, Inc.
24007 Ventura Boulevard
Calabasas, California 91302
Re: Registration Statement on Form S-8 for XXCAL, Inc.'s Stock
Option Plan
Dear Sirs:
Please refer to the Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, to be
filed with the Securities and Exchange Commission by National Technical Systems,
Inc. (the "Corporation") relating to shares of the Corporation's common stock,
$.01 par value per share (the "Common Stock"), offered for sale pursuant to the
1994 Employee Stock Option Plan (the "Plan").
In connection with the furnishing of this opinion, we have examined
and are familiar with originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and officers of the Corporation and such other instruments as we have
deemed necessary or appropriate as a basis for the opinions expressed below.
In our examination of the aforesaid documents, we have assumed,
without independent investigation, the genuineness of all signatures, the
enforceability of the documents against each party thereto, the legal capacity
of all individuals who have executed any of the documents, the authenticity of
all documents submitted to us as originals, the conformity to the original
documents of all documents submitted to us as certified, photostatic, reproduced
or conformed copies of valid existing agreements or other documents and the
authenticity of all such latter documents.
Based upon the foregoing, we are of the opinion that:
1. The Corporation has been duly organized and is validly existing
under the laws of the State of California.
2. The Plan has been duly adopted by the Board of Directors of the
Corporation and approved by the shareholders of the Corporation.
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3. The shares of Common Stock of the Corporation to which the
Registration Statement relates have been duly authorized and reserved for
issuance pursuant to the Plan and, when issued and sold pursuant to the Plan,
will be legally issued, fully paid and non-assessable.
Our opinions expressed above are limited to the California General
Corporation Law. Our opinions are rendered only with respect to the laws, and
the rules, regulations and orders thereunder, which are currently in effect.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to our name included in or made
part of the Registration Statement. In giving this consent, we do not thereby
admit that we come within the category of persons whose consent is required by
the Securities Act or the rules thereunder.
Very truly yours,
/s/ Sheppard, Mullin, Richter & Hampton LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement (Form S-8 No. 333-00000) pertaining to the National Technical Systems,
Inc. XXCAL, Inc. Stock Option Plan in the related Prospectus of our report dated
April 10, 1998, with respect to the consolidated financial statements of
National Technical Systems, Inc. included in the Annual Report (Form 10-K) for
the year ended January 31, 1998.
/s/ ERNST & YOUNG LLP
Woodland Hills, California
November 20, 1998
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