To Become Effective Upon
Filing Pursuant to Rule 462.
As filed with the Securities and Exchange Commission on January 13, 1998
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Top Source Technologies, Inc.
(Exact name of registrant as specified in its charter)
Delaware 84-1027821
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
7108 Fairway Drive, Suite 200, Palm Beach Gardens, Florida 33418
(Address of Principal Executive Offices)
(Zip Code)
Stock Option Agreement
Between Top Source Technologies, Inc. and William C. Willis, Jr.
(Full Title of the Plan)
Michael D. Harris, Esq.
Law Offices of Michael Harris, P.A.
712 U.S. Highway One, Suite 400
North Palm Beach, Florida 33408
(Name and address of agent of service)
(561) 844-3600
(Telephone number, including area code, of agent for service)
Approximate Date of Commencement of Proposed Sales under the Plan:
as soon as practicable after this
Registration Statement becomes effective.
<PAGE>
2
Calculation of Registration Fee
Title of Proposed Proposed
Securities Amount To Maximum Maximum Amount of
To be Be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price* Fee*
Common Shares,
no par value
per share 500,000 $1.28 $649,000 $220.69
* Calculated pursuant to Rule 457(c) based on the average of the
bid and asked price of the Company's stock on January 8, 1998.
<PAGE>
II-
6
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are incorporated herein by reference the following
documents:
(i) Top Source Technologies, Inc. (the
"Company") latest annual report
filed pursuant to Section 13 or
15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") which
contains, either directly or by
incorporation by reference, audited
financial statements for the
Company's latest fiscal year for
which such statements have been
filed.
1. All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the
fiscal year covered by the annual reports.
2. The description of the Company's common stock contained in the
Company's Registration Statement under Section 12 of the
Exchange Act, including any amendment or report filed for the
purpose of updating such description.
3. All reports subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior
to the termination of the offering of the securities covered
by this Prospectus shall be deemed to be incorporated herein
by reference and to be part hereof from the date of filing of
such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
A corporation owned by an attorney employed by the law firm
representing the Company owns 31,000 shares of the Company's
common stock.
Item 6. Indemnification of Directors and Officers.
The Company's by-laws, provide that the Company shall
indemnify its current and former officers, directors,
employees and agents against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement arising
out of his or her services on behalf of the Company subject to
the qualifications contained in Delaware law as it now exists.
Delaware law generally provides that a corporation shall have
such power to indemnify such persons to the extent they acted
in good faith in a manner reasonably believed to be in, or not
opposed to, the best interests of the Company and, with
respect to any criminal action or proceeding, had no
reasonable cause to believe the conduct was unlawful. In the
event any such person shall be judged liable for negligence or
misconduct, in the performance of his or her duties such
indemnification shall apply only if approved by the Court of
Chancery or the Court in which the action was pending. Any
other indemnification shall be made only after the
determination by the board of directors (excluding any
directors who were party to such action), by independent legal
counsel in a written opinion, or by a majority vote of
stockholders (including any stockholders who were parties to
such action).
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE
SECURITIES ACT OF 1933 MAY BE PERMITTED TO DIRECTORS, OFFICERS
OR PERSONS CONTROLLING THE COMPANY PURSUANT TO THE FOREGOING
PROVISIONS, THE COMPANY HAS BEEN INFORMED 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.
Item 7. Exemption from Registration Claimed.
Stock options have been issued to the chief executive officer
of the Company in reliance upon the exemptions provided by
Section 4(2) of the Securities Act of 1933 and Rule 506
thereunder. The grantee was given access to the same kind of
information that would be contained in a registration
statement and agreed to acquire the securities for investment.
Item 8. Exhibits.
Exhibit 4 Stock Option Agreement Between
the Company and William C. Willis, Jr.
Exhibit 4.1 First Amendment to Stock Option Agreement
Between the Company and William C. Willis,Jr.
Exhibit 5 Opinion of Michael Harris, P.A.
Exhibit 24 Consent of Arthur Andersen, LLP
Exhibit 24.1 Consent of Michael Harris, P.A.*
* Contained in the Opinion of Michael Harris, P.A.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
<PAGE>
(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 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;
(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 (i) and
(ii) do not apply since the Registration Statement is on Form
S-8 and the information required to be included in
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in this 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 therein.
(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) The undersigned Registrant hereby undertakes 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 Registrant 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 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
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.
<PAGE>
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 Palm Beach Gardens, Florida, on this 9th day of January, 1998.
TOP SOURCE TECHNOLOGIES, INC.
By: /s/ William C. Willis, Jr.
President
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement of Top Source Technologies, Inc. has been signed by the
following persons in the capacities and on the dates indicated.
Signatures Title Date
/s/ Stuart Landow Chairman of the Board January 9, 1998
- -------------------------
Stuart Landow
/s/ David Natan Chief Financial Officer January 9, 1998
David Natan (Principal Financial and
Accounting Officer)
/s/ William C. Willis, Jr. Director January 9, 1998
- ---------------------------
William C. Willis, Jr.
/s/ Ronald P. Burd Director January 9, 1998
- ---------------------------
Ronald Burd
/s/ Clinton D. Laurer Director January 9, 1998
- ---------------------------
Clinton D. Laurer
/s/ G. Jeff Mennen Director January 9, 1998
- ---------------------------
G. Jeff Mennen
/s/ Paul F. Moore Director January 9, 1998
- ---------------------------
Paul F. Moore
/s/ Mani A. Sadeghi Director January 9, 1998
- ---------------------------
Mani A. Sadeghi
<PAGE>
EXHIBIT INDEX
EXHIBIT NUMBER ITEM
Exhibit 4 Stock Option Agreement Between the Company and William C.
Willis, Jr.
Exhibit 4.1 First Amendment to Stock Option Agreement Between the
Company and William C. Willis, Jr.
Exhibit 5 Opinion of Michael Harris, P.A.
Exhibit 24 Consent of Arthur Andersen, LLP
Exhibit 24.1 Consent of Michael Harris, P.A.*
* Contained in the Opinion of Michael Harris, P.A.
EXHIBIT 4
TOP SOURCE TECHNOLOGIES, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
TO: William Willis, Jr.
As referenced in your employment agreement with Top Source
Technologies, Inc. (the "Company") dated as of May 21, 1997 (the "Employment
Agreement"), pursuant to the Company's 1993 Stock Option Plan, as amended (the
Plan"), you have been granted non-qualified stock options for the purchase of
500,000 shares (the "Option") of the Company's Common Stock at various exercise
prices as outlined in the attached Schedule A-1, the closing price of the
Company's Common Stock on the American Stock Exchange on May 20, 1997. Please
sign and return to the Company the acceptance and Acknowledgement attached to
this Stock Option Agreement. The terms of the Plan, including, without
limitation, those relating to withholding taxes, are incorporated into this
Agreement by reference. This Option is not intended to qualify as an "incentive
stock option" within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended.
The terms of the Option are set forth in the Plan and in this
Agreement. Certain of the terms set forth in the Plan are summarized below;
however, reference should be made to the Plan for the complete terms.
Term: This Option shall terminate ten years from date of grant
unless sooner terminated in accordance with the terms of the Plan and this
Agreement.
.
Exercise: During your lifetime only you can exercise the
Option. The Plan also provides for exercise of the Option by the personal
representative of your estate or the beneficiary thereof following your death.
You may use the Notice of Exercise in the form attached to this Agreement when
you exercise the Option.
Notices: All notices sent in connection with this Option shall
be in writing and, if to the Company, shall be delivered personally to the
Secretary of the Company or mailed to its principal office, addressed to the
attention of the Secretary and, if to the Optionee, shall be delivered
personally or mailed to the Optionee at the address noted on the attached
Acceptance and Acknowledgement. Such addresses may be changed at any time by
notice from one party to the other.
Payment for Shares: The Option may be paid for by delivery
to the Company of the following together with the Notice of Exercise:
<PAGE>
(a) Bank certified or cashier's checks; or
(b) Unless the Committee (as defined in the Plan) in its sole
discretion determines otherwise, shares of the capital stock of the Company held
by you having a fair market value at the time of exercise, as determined in good
faith by the Plan Administrator, equal to the exercise price.
Upon receipt of written notice of exercise and payment and
delivery of any other required documentation, the Company shall deliver to the
person exercising the Option a certificate or certificates for such shares. It
shall be a condition to the performance of the Company's obligation to issue or
transfer Common Stock upon exercise of this option that the Optionee pay, or
make provision satisfactory to the Company for the payment of, any taxes which
the Company is obligated to collect with respect to the issue or transfer of
Common Stock upon exercise.
Termination: If your employment by the Company is terminated
for Cause, as defined in the Employment Agreement, the Option will terminate as
of the first discovery by the Company of any reason for termination for Cause.
If your employment stops because of your Death or Disability, as defined in the
Employment Agreement, the Option shall terminate 12 months after your employment
stops. Otherwise the Option will terminate three months after your employment
with the Company ends.
Nothing in the Plan or in this Agreement shall confer on you any right
to continue in the employ of the Company or any parent or subsidiary of the
Company or interfere in any way with the right of the Company or any parent or
subsidiary of the Company to terminate your employment at any time.
Transfer of Option: The Option is not transferable except by will or
by the applicable laws of descent and distribution.
Vesting: The Option is vested as outlined in Schedule A-1:
Notwithstanding the foregoing, the vesting of such Options shall be
accelerated in the event of a Change in Control, as that term is defined in the
Employment Agreement.
Date of Grant: The date of grant of the Option is May 21, 1997.
YOUR PARTICULAR ATTENTION IS DIRECTED TO SECTION 15 OF THE PLAN WHICH
DESCRIBES CERTAIN IMPORTANT CONDITIONS RELATING TO FEDERAL AND STATE SECURITIES
LAWS THAT MUST BE SATISFIED BEFORE THE OPTION CAN BE EXERCISED AND BEFORE THE
COMPANY CAN ISSUE ANY SHARES TO YOU. THE COMPANY HAS NO OBLIGATION TO REGISTER
THE SHARES THAT WOULD BE ISSUED UPON THE EXERCISE OF YOUR OPTION, AND IF SUCH
SHARES ARE NOT REGISTERED, YOU WILL NOT BE ABLE TO EXERCISE THE OPTION UNLESS AN
EXEMPTION FROM REGISTRATION IS AVAILABLE. AT THE PRESENT TIME, EXEMPTIONS FROM
REGISTRATION UNDER FEDERAL AND STATE SECURITIES LAWS ARE VERY LIMITED AND MIGHT
BE UNAVAILABLE TO YOU PRIOR TO THE EXPIRATION OF THE OPTION. CONSEQUENTLY, YOU
MIGHT HAVE NO OPPORTUNITY TO EXERCISE THE OPTION AND TO RECEIVE SHARES UPON SUCH
EXERCISE. IN ADDITION, YOU SHOULD CONSULT WITH YOUR TAX ADVISOR CONCERNING THE
RAMIFICATIONS TO YOU OF HOLDING OR EXERCISING YOUR OPTIONS OR HOLDING OR SELLING
THE SHARES UNDERLYING SUCH OPTIONS.
You understand that, during any period in which the shares
which may be acquired pursuant to your Option are subject to the provisions of
Section 16 of the Securities Exchange Act of 1934 (and you are also so subject),
in order for your transactions under the Plan to qualify for the exemption from
Section 16(b) provided by Rule 16b-3, a total of six months must elapse between
the grant of the Option and the sale of the Option (other than upon exercise or
conversion) or the shares underlying the Option.
All decisions or interpretations made by the Committee with
regard to any question arising hereunder or under the Plan shall be binding and
conclusive on the Company and you.
This Agreement shall bind and inure to the benefit of the
parties hereto and the successors and assigns of the Company and, to the extent
provided in the Plan, your executors, administrators, legatees, and heirs.
Please execute the Acceptance and Acknowledgement set forth
below on the enclosed copy of this Agreement and return it to the undersigned.
Very truly yours,
TOP SOURCE TECHNOLOGIES, INC.
Dated: As of May 21, 1997
By:_/s/ DAVID NATN
DAVID NATAN
<PAGE>
INSTRUCTION: PLEASE COMPLETE THE INFORMATION REQUESTED BELOW, DETACH THIS PAGE
AFTER SIGNING WHERE INDICATED AND RETURN TO THE COMPANY.
ACCEPTANCE AND ACKNOWLEDGEMENT
I, a resident of the State ofFlorida, accept the non-qualified stock option
described in the Non-Qualified Stock Option Agreement dated as ofMay 21, 1997
and in the Top Source Technologies, Inc. 1993 Stock Option Plan, as amended, and
acknowledge receipt of a copy of this Agreement. I have read and understand all
the provisions and limitations of the Plan, particularly those relating to
non-qualified stock options and the provisions of Section 15 of the Plan
relating to securities regulations.
Dated: As of May 21, 1997
/s/ WILLIAM C. WILLIS, JR.
- ------------------------------
Signature
Name: William Willis, Jr.
Address:
<PAGE>
TOP SOURCE TECHNOLOGIES, INC.
NOTICE OF EXERCISE OF NON-QUALIFIED STOCK OPTION
------------------------------
(Name, please print)
------------------------------
(Date)
TOP SOURCE TECHNOLOGIES, INC.
7108 Fairway Drive
Suite 200
Palm Beach Garden, Florida 33418
Gentlemen:
I hereby exercise my right to purchase _______________ shares of Common Stock of
Top Source Technologies, Inc., a Delaware corporation (the"Company"), pursuant
to, and in accordance with, the Top Source Technologies, Inc. 1993 Stock Option
Plan and the Non-Qualified Stock Option Agreement ("Agreement") dated as of ,
1997. As provided in that Agreement, I hereby: [check one]
[ ] deliver herewith a certified or bank cashier's
check in the amount of the aggregate option exercise
price; or
[ ] undertake to deliver shares of the capital stock of
the Company held by me having a fair market value at
the time of exercise, as determined in good faith by
the Plan Administrator, equal to the aggregate option
exercise price.
Please deliver to me stock certificates representing the
subject shares registered as follows:
Name:___________________________________________
Address:_________________________________________
------------------------------------------------
Social Security Number ____________________________
The aggregate exercise price is $ _________ (total number of
shares to be purchased x $--------).
(1) Tax Implications. I understand that there are certain tax
implications to my exercise of my right to purchase shares of Common Stock under
the Agreement. I further understand that it is my obligation to confer with my
own tax advisor with respect to such tax implications.
(2) Securities Regulation. I hereby represent and acknowledge that (i)
the shares of Common Stock I propose to purchase (i) are being purchased for
investment and not for distribution or resale (other than a distribution or
resale which, in the opinion of counsel satisfactory to the Company, may be made
without violating the registration provisions of the Securities Act of 1933, as
amended (the "Act")), (ii) I have been advised and understand that (A) such
shares have not been registered under the Act and are "restricted securities"
within the meaning of Rule 144 under the Act and are subject to restrictions on
transfer and (B) the Company is under no obligation to register such shares
under the Act or to take any action which would make available to me any
exemption from such registration, and (iii) such shares may not be transferred
without compliance with all applicable federal and state securities laws.
Very truly yours,
------------------------------
Name:
EXHIBIT 4.1
FIRST AMENDMENT TO STOCK OPTION AGREEMENT
BETWEEN TOP SOURCE TECHNOLGOIES, INC.
AND WILLIAM C. WILLIS, JR.
THIS FIRST AMENDMENT to the Stock Option Agreement dated as of August 25, 1997
between Top Source Technologis, Inc. (the "Company") and William C. Willis, Jr.
(the "Executive") (collectively the Parties), memorializing the Companys
Compensation Committees non-qualified stock option grant on May 21, 1997, is
entered into as of this 9th day of January, 1998. In order to give effect to the
intent of the Parties to such Agreement and correct a scriveners error, said
Agreement is amended solely to provide that the option granted to the Exective
for the puruchase of an aggregate of 500,000 shares the Companys common stock
shall not be pursuant to the Companys 1993 Stock Option Plan, as amended, or any
other stock plan or stock opton plan of the Company.
IN WITNESS WEREHOF, the unersigned have executed this First Amendment as of the
date aforesaid.
Witness: TOP SOURCE TECHNOLOGIES, INC.
BY:/s/ DAVID NATAN
Vice President and CFO
/s/WILLIAM C. WILLIS, JR.
EXHIBIT 5
MICHAEL HARRIS, P.A.
Attorneys at Law
712 U.S. HIGHWAY ONE, SUITE 400
NORTH PALM BEACH, FLORIDA 33408
Telephone: (561) 844-3600
Facsimile: (561) 845-0108
E-Mail Address: [email protected]
Michael D. Harris
Beth J. Harris
January 9, 1997
Top Source Technologies, Inc.
7108 Fairway Drive, Suite 200
Palm Beach Gardens, FL 33418-3757
Re: Top Source Technologies, Inc./Form S-8
Dear Sirs:
You have advised us that Top Source Technologies, Inc. (the
"Company") is filing with the Securities and Exchange Commission a Registration
Statement on Form S-8 (the "Registration Statement") with respect to 500,000
shares of common stock, $.001 par value per share.
In connection with the filing of this Registration Statement, you
have requested us to furnish you with our opinion as to the legality of (i) such
of the Company's shares as are presently outstanding; and (ii) such securities
as shall be offered by the Company itself pursuant to the Prospectus which is
part of the Registration Statement.
You have advised us that as of January 9, 1998 the Company's
authorized capital consists of 50,000,000 shares of common stock, $.001 par
value, of which 28,461,477 shares have been issued. You have further advised us
that the Company has received valid consideration for the issuance of these
shares.
After having examined the Company's certificate of incorporation,
as amended, bylaws, minutes and the agreement between the Company and Mr.
William C. Willis, Jr. and financial statements incorporated by reference into
the Registration Statement, we are of the opinion that the issued and
outstanding shares of common stock (numbering 28,461,477) are, and the unissued
securities to be offered by the Company itself pursuant to the Registration
Statement will be, when offered and sold fully paid and nonassessable, duly
authorized and validly issued.
Very truly yours,
/s/ LAW OFFICES OF
MICHAEL HARRIS, P.A.
EXHIBIT 24
INDEPENDENT AUDITORS CONSENT
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our reports dated January 9, 1998
included in Top Source Technologies, Inc.s Form 10-K for the fiscal year ended
September 30, 1997 and to all references to our Firm included in this
Registration Statement.
Arthur Andersen LLP
West Palm Beach, Florida
January 9, 1998
