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As filed with the Securities and Exchange Commission on May 26, 1995
Registration No. 33-
_____________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
The Topps Company, Inc.
(Exact name of registrant as specified in its charter)
Delaware 11-2849283
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
1 Whitehall Street
New York, New York 10004
(Address of principal executive offices) (zip code)
The Topps Company, Inc.
1994 Non-Employee Director Stock Option Plan
(Full title of the plan)
Scott Silverstein, Esq.
Vice President-General Counsel
The Topps Company, Inc.
1 Whitehall Street
New York, New York 10004
(212) 376-0300
(Name, address and telephone number,
including area code, of agent for service)
___________________________
COPY TO:
Steven J. Gartner, Esq.
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, NY 10022
(212) 821-8000
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CALCULATION OF REGISTRATION FEE
___________________________________________________________________________
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered(1) per share (2) price (2) fee
__________________________________________________________________________
Common Stock,
$0.01 par
value per
share 490,000 $5.875 $2,878,750 $992.67
_______________________________
(1) This Registration Statement covers the 490,000 shares authorized to be
sold under The Topps Company, Inc. 1994 Non-Employee Director Stock
Option Plan ("Plan").
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the
"Securities Act").
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange
Commission (the "Commission") by The Topps Company, Inc., a Delaware
corporation ("Company"), are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended February 25, 1995, filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); and
(b) The description of Company's Common Stock, par value $0.01
per share (the "Common Stock"), which is contained in the Company's
Registration Statement on Form 8-A, filed pursuant to the Exchange
Act, dated May 1, 1987, as updated in the Company's Registration
Statement on Form S-1, Registration No. 33-27826, filed pursuant to
the Securities Act, dated April 26, 1989.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all the securities offered
hereby have been sold or which deregisters all securities then remaining
unsold shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of the filing of such documents with the Commission.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby is being passed
upon for the Company by Willkie Farr & Gallagher. As of the date of this
Registration Statement, Jack H. Nusbaum, a partner of Willkie Farr &
Gallagher, is a director of the Company and beneficially owns 40,000 shares of
Common Stock. As a non-employee director of the Company, Mr. Nusbaum will
participate in and receive shares of Common Stock under the Plan.
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware Corporation Law expressly permits
indemnification of officers and directors of Delaware corporations against
claims, judgments and expenses arising in connection with legal or
administrative proceedings or otherwise, including amounts paid in settlement
of a claim or litigation, if the officer or director acted in good faith and
in a manner he believed to be in, or not opposed to, the best interest of the
corporation.
Article NINTH of the Company's Restated Certificate of Incorporation
provides that no director of the Company shall be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except (i) for breach of the director's duty or loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of the law, (iii) for the
unlawful payment of dividends on or redemption of the Company's capital stock
or (iv) for any transactions from which the director derives an improper
personal benefit. Article THIRTEENTH of the Company's Restated Certificate of
Incorporation provides that 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 (whether
or not by or in the right of the Company) by reason of the fact that he is or
was a director, officer, incorporator, employee, or agent of the Company, or
is or was serving at the request of the Company as a director, officer,
incorporator, employee, partner, trustee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise (including an employee
benefit plan), shall be entitled to be indemnified by the Company to the full
extent then permitted by law against expenses (including attorneys' fees),
judgments, fines (including excise taxes assessed on a person with respect to
an employee benefit plan), and amounts paid in settlement incurred by him in
connection with such action, suit, or proceeding.
The Company also has a policy insuring it and its directors and officers
against certain liabilities, including liabilities under the Securities Act.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
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Item 8. EXHIBITS
Exhibit No.
4.1 Specimen certificate for shares of the Common Stock, (incorporated
by reference to the Company's registration statement on Form 8A,
pursuant to the Exchange Act, dated May 1, 1987, Exhibit 3).
4.2 Form of Restated Certificate of Incorporation of the Company
(incorporated by reference to the Company's registration statement
on Form S-3, registration Number 33-43567, dated October 29, 1991,
Exhibit 3.1).
4.3 Form of Restated By-Laws of the Company (incorporated by reference
to the Company's registration statement on Form S-3, registration
Number 33-43567, dated October 29, 1991, Exhibit 3.2).
5 Opinion of Willkie Farr & Gallagher, counsel to the Company.
23.1 Consent of Deloitte & Touche L.L.P.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5.1).
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to the 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;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any
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material change to such information in the Registration statement;
provided, however, that paragraphs (a)(i) and (a)(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 Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) 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.
(c) 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.
2. 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 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.
3. 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, 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, 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 New York, State of New York, on the 26th day of May,
1995.
THE TOPPS COMPANY, INC.
By: /s/ Arthur T. Shorin
Arthur T. Shorin
Chairman of the Board
and Chief Executive Officer
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POWER OF ATTORNEY
Each of the undersigned officers and directors of The Topps
Company, Inc. hereby severally constitutes and appoints Arthur T. Shorin and
Scott Silverstein, and each of them, his true and lawful attorney-in-fact, in
any and all capacities, with full power of substitution, to sign any further
amendments to this Registration Statement (including post-effective
amendments), and to file the same with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each said
attorney-in-fact, or either of them, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
Signature Title Date
/s/ Arthur T. Shorin Chairman of the Board, Chief May 22, 1995
Arthur T. Shorin Executive Officer and Director
/s/ John J. Langdon President, Chief Operating May 24 1995
John J. Langdon Officer and Director
/s/ John Perillo Vice President-Operations May 22, 1995
John Perillo (Controller and Chief
Financial Officer)
/s/ Seymour P. Berger Director May 24, 1995
Seymour P. Berger
/s/ Allan A. Feder Director May 18, 1995
Allan A. Feder
/s/ Nicholas C. Forstman Director May 22, 1995
Nicholas C. Forstmann
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/s/ Theodore J. Forstman Director May 22, 1995
Theodore J. Forstmann
/s/ Stephen D. Greenberg Director May 19 , 1995
Stephen D. Greenberg
/s/ Brian Little Director May 22, 1995
Wm. Brian Little
Director May , 1995
Jack H. Nusbaum
/s/ Stanley Tulchin Director May 19, 1995
Stanley Tulchin
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[LETTERHEAD OF WILLKIE FARR & GALLAGHER]
May 26, 1995
The Topps Company, Inc.
1 Whitehall Street
New York, New York 10004
Ladies and Gentlemen:
We have acted as counsel to The Topps Company, Inc. (the "Company"), a
corporation organized under the laws of the State of Delaware, with respect to
the Company's Form S-8 Registration Statement (the "Registration Statement")
to be filed by the Company with the Securities and Exchange Commission on May
26, 1995, in connection with the registration under the Securities Act of
1933, as amended (the "Act"), by the Company of an aggregate of 490,000 shares
(the "Shares") of Common Stock, par value $0.01 per share (the "Common
Stock"), issuable upon exercise of stock options granted or to be granted
under The Topps Company, Inc. 1994 Non-Employee Director Stock Option Plan
(the "Plan").
As counsel for the Company, we have examined, among other things, such federal
and state laws and originals and/or copies (certified or otherwise identified
to our satisfaction) of such documents, certificates and records as we deemed
necessary and appropriate for the purpose of preparing this opinion.
Based on the foregoing, we are of the opinion that the Shares have been duly
and validly authorized for issuance and, when issued in accordance with the
terms of the Plan for consideration of at least $0.01 per share, will be
validly issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
We are members of the Bar of the State of New York and do not purport to be
experts in the laws of jurisdictions other than the State of New York, the
General Corporation Law of the State of Delaware and the Federal laws of the
United States of America.
Very truly yours,
/s/ Willkie Farr & Gallagher
Willkie Farr & Gallagher
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of The Topps Company, Inc. on Form S-8 of our report
dated March 25, 1995 appearing in the Annual Report on Form 10-K
of the Topps Company, Inc. for the year ended February 25, 1995.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
New York, New York
May 26, 1995
