{PRIVATE }
As filed with the Securities and Exchange Commission on November 27, 1996
Registration No. 333-
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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
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HANDEX CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 22-2941704
- -------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
500 Campus Drive
Morganville, New Jersey 07751
(Address of principal executive offices, including zip code)
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HANDEX CORPORATION
KEY EMPLOYEES STOCK OPTION PLAN
HANDEX CORPORATION
OUTSIDE DIRECTORS STOCK OPTION PLAN
(Full title of the plans)
----------------------------------
Copy to:
Curtis Lee Smith, Jr.
Chairman and Chief Executive Officer Scott R. Wilson, Esq.
Handex Corporation Calfee, Halter & Griswold
500 Campus Drive 1400 McDonald Investment Center
Morganville, New Jersey 07751 800 Superior Avenue
(908) 536-8500 Cleveland, Ohio 44114-2688
(216) 622-8200
(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share (1) price (1) fee
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Common Stock, 630,000 $ 11.25 $7,087,500.00 $2,148.00
$.01 par value per shares
share
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(1) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
-----------------------------------------------
The following documents of Handex Corporation (the "Company"),
previously filed with the Securities and Exchange Commission, are incorporated
herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 30, 1995;
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ending March 31, 1996, June 30, 1996 and September 30, 1996;
3. The Company's definitive Proxy Statement used in connection with
its Annual Meeting of Stockholders held on May 7, 1996; and
4. The Company's Form 8-A Registration Statement with respect to its
shares of Common Stock.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
Registration Statement, 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 the Registration Statement and to be a 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
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers
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Section 145 of the Delaware General Corporation Law sets forth the
conditions and limitations governing the indemnification of officers, directors
and other persons. Section 145 provides that a corporation shall have the power
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or contemplated action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation or was serving at the
request of the corporation in a similar capacity with another corporation or
other entity, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement incurred in connection therewith if he acted in good
faith and in a manner that he reasonably believed to be in the best interests of
the corporation. With respect to a suit by or in the right of the corporation,
indemnity may be provided to the foregoing persons under Section 145 on a basis
similar to that set forth above, except that no indemnity may be provided in
respect of any claim, issue or matter as to which such person has been adjudged
to be liable to the corporation unless and to the extent that the Delaware Court
of Chancery or the court in which such action, suit or proceeding was brought
determines that despite the adjudication of liability but in view of all the
circumstances of the case such person is entitled to indemnity for such expenses
as the court deems proper. Moreover, Section 145 provides for mandatory
indemnification of a director, officer, employee or agent of the corporation to
the extent that such person has been successful in defense of any such action,
suit or proceeding and provides that a corporation may pay the expenses of an
officer or director in defending an action, suit or proceeding upon receipt of
an undertaking to repay such amounts if it is ultimately determined that such
person is not entitled to be indemnified. Section 145 establishes provisions
for determining that a given person is entitled to indemnification, and also
provides that the indemnification provided by or granted under Section 145 is
not exclusive of any rights to indemnity or advancement of expenses to which
such person may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
Article V of the Registrant's By-laws provides that the Registrant shall
indemnify, to the fullest extent permitted by Delaware law, any Director or
officer who was or is a party or is threatened to be made a party to any action,
suit or proceeding by reason of the fact that he or she, or a person of he or
she is the legal representative, is or was a Director or officer of the
Registrant, or is or was serving at the request of the Registrant as a Director,
officer, partner, trustee, employee or agent of another entity, against all
expenses, liabilities and losses (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties or amounts paid in settlement) reasonably
incurred by such person in connection therewith. In addition, provisions of
Article V of the Registrant's By-laws provide for the advancement of expenses,
including attorneys' fees, incurred by a Director or officer of the Registrant
in defending any proceeding for which indemnification is provided under Article
V upon receipt of an undertaking to repay such amounts if it is ultimately
determined that he or she is not entitled to be indemnified by the Registrant as
authorized in Article V. In addition, Article V permits the Registrant to
maintain insurance, at its expense, to protect itself and any of its Directors
or officers or individuals serving at the request of the registrant as a
director, officer, partner, trustee, employee or agent of another entity,
against any expense, liability or loss, whether or not the Registrant would have
the power to indemnify such person against such expense, liability or loss under
the Delaware General Corporation Law.
Section 102 (b) of the Delaware General Corporation Law permits
corporations to eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of the
director's duty of care. Accordingly, Article VII of the Registrant's Amended
Certificate of Incorporation provides that a Director of the Registrant shall
not be personally liable to the Registrant or its stockholders for monetary
damages for breach of fiduciary duty as a Director, except for liability (i)
for any breach of the Director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law or (iv) for any transaction from which the
Director derived an improper personal benefit. Article VII of the Registrant's
Amended Certificate of Incorporation further provides that any repeal, amendment
or other modification of Article VII will not affect the liability or alleged
liability of any Director of the corporation then existing with respect to any
state of facts then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought or threatened based in whole or in part upon
any such state of facts.
In addition to the foregoing, the Registrant has entered into indemnity
agreements with its executive officers and Directors. The indemnity agreements
provide that such persons will be indemnified to the fullest extent permitted by
law against all expenses (including attorneys' fees), judgments, fines, amounts
paid or incurred by them for settlement in any action or proceeding on account
of their service as a Director or officer of the Registrant or of any subsidiary
of the Registrant or of any other entity in which they are serving at the
request of the Registrant.
The agreements bind the registrant to provide indemnification to Directors
and officers whether or not the Registrant maintains Directors and officers
liability insurance coverage and regardless of any future changes in the By-
laws. The protection to be afforded Directors and officers by the agreements is
broader than that provided under the indemnification provisions contained in the
By-laws, in that the agreements expressly provide for the advancement of
expenses and for indemnification with respect to amounts paid in settlements of
derivative actions.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
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See the Exhibit Index at Page E-1 of this Registration Statement.
Item 9. Undertakings
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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:
(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. Notwithstanding the foregoing, any
increase or decrease in the 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
and of the estimated maximum offering range may
be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price
represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table 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 (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and
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
Securities Exchange Act of 1934 that are incorporated by reference in the
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.
(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) If the Registrant is a foreign private issuer, to file a post-
effective amendment to the registration statement to include any
financial statements required by Rule 3-19 of this chapter at the
start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Securities Act of 1933 need
not be furnished, provided, that the Registrant includes in the
prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (a)(4) and other
information necessary to ensure that all other information in the
prospectus is at least as current as the date of those financial
statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment
need not be filed to include financial statements and information
required by Section 10(a)(3) of the Securities Act of 1933 or
Rule 3-19 of this chapter if such financial statements and
information are contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Form F-3.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered herein, 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 of 1933 may be permitted to Directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, 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 Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant 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 of 1933
and will be governed by the final adjudication of such issue.
SIGNATURES
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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 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 TOWNSHIP OF MARLBOROUGH, STATE OF NEW JERSEY, ON THE 27TH DAY
OF NOVEMBER, 1996.
HANDEX CORPORATION
By /s/Curtis Lee Smith, Jr.
----------------------------------
Curtis Lee Smith, Jr., Chairman of
the Board of Directors and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below, constitutes and appoints Curtis Lee Smith, Jr., Thomas J. Bresnan, John
T. St. James or Scott R. Wilson, or any one of them, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution for him or her and
his or her name, place and stead, in any and all capacities, to sign any or all
amendments or 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 such
attorneys-in-fact and agents, or any one 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 and to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any one of them, or their or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED AND ON THE 27TH DAY OF NOVEMBER, 1996.
SIGNATURE TITLE
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/s/Curtis Lee Smith, Jr. Chairman of the Board of
- ------------------------ Directors and Chief Executive
Curtis Lee Smith, Jr. Officer (principal executive
officer)
/s/John T. St. James Senior Vice President, Treasurer and Chief
- ------------------------ Financial Officer (principal financial and
John T. St. James accounting officer)
/s/Stuart O. Smith Director
- ------------------------
Stuart O. Smith
SIGNATURE TITLE
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/s/Thomas J. Bresnan Director
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Thomas J. Bresnan
/s/David A. Goldfinger Director
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David A. Goldfinger
/s/William H. Heller Director
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William H. Heller
/s/Richard L. Osborne Director
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Richard L. Osborne
/s/Scott R. Wilson Director
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Scott R. Wilson
November 27, 1996
Handex Corporation
500 Campus Drive
Morganville, New Jersey 07751
We are familiar with the proceedings taken and proposed to be taken by
Handex Corporation, a Delaware corporation (the "Company"), with respect to: (i)
592,500 shares of Common Stock, par value $.01 per share (the "Common Stock"),
of the Company to be issued from time to time upon the exercise of stock options
granted pursuant to an amendment to the Company's Key Employees Stock Option
Plan (the "Key Employees Plan"); and (ii) 37,500 shares of Common Stock of the
Company to be issued from time to time upon the exercise of stock options
granted pursuant to an amendment to the Company's Outside Directors Stock Option
Plan (the "Outside Directors Plan"). As counsel for the Company, we have
assisted in the preparation of a Registration Statement on Form S-8 (the
"Registration Statement") to be filed by the Company with the Securities and
Exchange Commission to effect the registration of 630,000 shares of Common Stock
under the Securities Act of 1933, as amended.
In this connection, we have examined the Certificate of Incorporation
and the By-Laws of the Company, both as amended, records of proceedings of the
Board of Directors and stockholders of the Company, and such other records and
documents as we have deemed necessary or advisable to render the opinion
contained herein. Based upon our examination and inquiries, we are of the
opinion that the Common Stock, when issued and sold upon the exercise of the
options granted pursuant to the terms and conditions of amendments to both the
Key Employees Plan and the Outside Directors Plan, will be duly authorized and
validly issued, fully paid and nonassessable.
We are admitted to the practice of law solely in the State of Ohio.
The opinions expressed in this letter are limited to matters of Ohio law, the
Delaware General Corporation Law and United States federal law.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. This opinion is limited to the matters expressly set
forth herein, and no opinion is implied or may be inferred beyond that expressly
stated herein. This opinion is furnished to you and is solely for your benefit.
No other person or entity may rely upon the opinion set forth herein without the
prior written consent of the undersigned.
Respectfully submitted,
CALFEE, HALTER & GRISWOLD
370/18746GWD.400
E-1
EXHIBIT 23.1
The Board of Directors
Handex Corporation
We consent to incorporation by reference in the registration statement on Form
S-8 of Handex Corporation of our report dated February 16, 1996, relating to the
consolidated balance sheets of Handex Corporation and subsidiaries as of
December 30, 1995 and December 31, 1994, and the related consolidated statements
of operations, stockholders' equity and cash flows for each of the years in the
three-year period ended December 30, 1995 and all related schedules, which
report appears in the December 30, 1995 Annual Report on Form 10-K of Handex
Corporation.
KPMG Peat Marwick LLP
Cleveland, Ohio
November 27th, 1996
370/18746GWD.400
E-1
EXHIBIT 23.2
CONSENT OF COUNSEL
The consent of Calfee, Halter & Griswold is contained in their opinion
filed as Exhibit 5.1 to this Registration Statement.
370/18746GWD.400
E-1
EXHIBIT 24.1
HANDEX CORPORATION
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Handex corporation hereby
constitutes and appoints Curtis Lee Smith, Jr., Thomas B. Bresnan, John T.
St. James or Scott R. Wilson, or any one of them, its attorneys-in-fact and
agents, each with full power of substitution and resubstitution for it in any
and all capacities, to sign any or all amendments or post-effective amendments
to this Registration Statement, and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting onto each of such attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary in connection with such matters and hereby ratifying and confirming
all that each of such attorneys-in-fact and agents or his substitute or
substitutes may do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed at
Morganville, New Jersey on November 27, 1996.
HANDEX CORPORATION
By: /s/Curtis Lee Smith, Jr.
------------------------------------
Curtis Lee Smith, Jr.
Chairman and Chief Executive Officer
370/18746GWD.400
EXHIBIT 24.1
(Continued)
HANDEX CORPORATION
Certified Resolution
E-1
I, SCOTT R. WILSON Assistant Secretary of Handex Corporation, a
Delaware corporation (the "Company") do hereby certify that the following is a
true copy of a resolution adopted by the Board of Directors on November 18, 1996
and that the same has not been changed and remains in full force and effect.
RESOLVED FURTHER, that Curtis Lee Smith, Jr., Thomas J. Bresnan,
John T. St. James or Scott R. Wilson, be, and each of them hereby is, appointed
as the attorney of Handex Corporation, with full power of substitution and
resubstitution for and in the name, place and stead of the Company to sign,
attest and file a Registration Statement on Form S-8, or any other appropriate
form that may be used from time to time, with respect to the issue and sale of
the Shares, and any and all amendments, post-effective amendments and exhibits
to such Registration Statement and any and all applications or other documents
to be filed with the Securities and Exchange Commission or any automated
quotation system of a registered securities association, including the NASDAQ
Stock Market, pertaining to the quotation thereon of the Shares covered by such
Registration Statement or pertaining to such registration and any and all
applications or other documents to be filed with any governmental or private
agency or official relative to the issuance of said Shares with full power and
authority to do and perform any and all acts and things whatsoever requisite and
necessary to be done in the premises, hereby ratifying and approving the acts of
such attorneys or any such substitute or substitutes and, without implied
limitation, including in the above authority to do the foregoing on behalf and
in the name of any duly authorized officer of the Company; and the Chairman and
Chief Executive Officer of the Company be, and hereby is authorized and directed
for and on behalf of the Company to execute a Power of Attorney evidencing the
foregoing appointment
/s/Scott R. Wilson
-----------------------
Scott R. Wilson,
Assistant Secretary
Dated: November 27, 1996
370/18746GWD.400
E-2
HANDEX CORPORATION
EXHIBIT INDEX
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Sequential
Exhibit Number Description of Document Page
- -------------- ----------------------- ----------
4.1 Amendment No. 1 to the Company's Key
Employees Stock Option Plan (A).
4.2 Amendment No. 1 to the Company's
Outside Directors Stock Option Plan
(A).
4.3
Form of Stock Option Agreement
executed by recipients of options
under the Company's Key Employees
4.4 Stock Option Plan (B).
Form of Stock Option Agreement
executed by recipients of options
under the Company's Outside Directors
Stock Option Plan (A).
5.1 Opinion of Calfee, Halter & Griswold
regarding the validity of the
securities being registered (see page
II-7 of this Registration Statement).
23.1 Consent of KPMG Peat Marwick LLP (see
page II-8 of this Registration
Statement).
23.2 Consent of Calfee, Halter & Griswold
(see page II-9 of this Registration
Statement).
24.1 Power of Attorney and related
Certified Resolution (see pages II-10
and II-11 of this Registration
Statement).
- ---------
(A) Incorporated herein by reference to the appropriate exhibit to the
Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1992.
(B) Incorporated herein by reference to the appropriate exhibit to the
Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1991.
370/18746GWD.400
E-1
