<PAGE>
As filed with the Securities and Exchange Commission on October 17, 1997.
Registration No. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
____________________
TOPRO, INC.
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(Exact name of Registrant as specified in its charter)
Colorado 84-1042227
--------------------------------- -------------
(State or other jurisdiction (IRS Employer
of incorporation or organization) I.D. Number)
2525 West Evans Avenue
Denver, Colorado 80219
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(Address of Principal Executive Offices, Including Zip Code)
TOPRO, INC. 1992 INCENTIVE STOCK OPTION PLAN
TOPRO, INC. 1997 STOCK OPTION AND STOCK BONUS PLAN
--------------------------------------------------
(Full title of the plans)
John Jenkins, President
Topro, Inc.
2525 E. Evans Avenue
Denver, Colorado 80219
(303) 935-1221
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(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
Title of securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered offering price per unit aggregate offering price registration fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 2,240,000 shares (1) $5.3125 (2) $11,900,000.00 $3,606.06
=================================================================================================================
</TABLE>
(1) There are also registered hereunder such indeterminate number of additional
shares of Common Stock as may become subject to the Plans as a result of
the anti-dilution provisions thereof.
(2) Estimated solely for the purpose of calculating the registration fee, based
on the closing price reported by NASDAQ on October 13, 1997 (a day within
five business days prior to the initial filing hereof) pursuant to Rule
457(c).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION.
The required Plan Information is included in documents being maintained and
delivered by the Registrant as required by Rule 428 of the Securities Act of
1933, as amended (the "Securities Act").
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The Registrant shall provide to participants a written statement advising
them of the availability, without charge, upon written or oral request, of
documents incorporated by reference in Item 3 of Part II hereof and of documents
required to be delivered pursuant to Rule 428(b) under the Securities Act. The
statement will include the address listing the title or department and telephone
number to which the request is to be directed.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by the Registrant are
incorporated into this Registration Statement by this reference:
a. Registrant's Annual Report on Form 10-KSB for the most recent fiscal
year end;
b. Current Report on Form 8-K dated December 31, 1996 filed with the
Commission on January 15, 1997, as amended by Form 8-K/A No. 1
filed on February 7, 1997, Form 8-K/A No. 2 filed on February 13,
1997, Form 8-K/A No. 3 filed on February 28, 1997, Form 8-K/A No. 4
filed on March 5, 1997, which includes audited year end and
unaudited interim financial statements of All-Control Systems,
Inc., and pro forma financial information reflecting the Company's
acquisition of this entity;
c. All other reports filed pursuant to Section 13(a) or 15d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the Registrant's mots recent fiscal year; and
d. The description of the Common Stock contained in the Registrant's
Registration Statement on Form 10 filed under the Exchange Act, SEC
File No. 34-019167, on April 10, 1991, including the amendments to
the Form 10 filed on July 1, 1991, September 5, 1991 and October 17,
1991.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date hereof and prior to the filing of a
post-effective amendment which indicates that all shares offered hereunder have
been sold or which de-registers all securities then remaining unsold shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES.
No description of the class of securities to be offered is required under
this item because the class of securities to be offered is registered under
Section 12 of the Exchange Act.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
II-1
<PAGE>
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 7-109-101 through 7-109-110 of the Colorado Business Corporation
Act and Article 5.04 of the Company's Articles of Incorporation under certain
circumstances provide for the indemnification of the Company's officers,
directors and controlling persons against liabilities which they may incur in
such capacities. A summarization of the circumstances in which such
indemnification is provided for is contained herein, but that description is
qualified in its entirety by reference to the Company's Articles of
Incorporation and the relevant Section of the Colorado Business Corporation Act.
The Company's Articles provide that the Company shall indemnify any
officer, employee, agent or director against liabilities (including the
obligation to pay a judgment, settlement, penalty, fine or expense), incurred in
a proceeding (including any civil, criminal or investigative proceeding) to
which the person was a party by reason of such status. Such indemnity may be
provided if the person's actions resulting in the liabilities: (i) were taken
in good faith; (ii) were reasonably believed to have been in the Company's best
interest with respect to actions taken in the person's official capacity; (iii)
were reasonably believed not to be opposed to the Company's best interest with
respect to other actions; and (iv) with respect to any criminal action, the
director had no reasonable grounds to believe the actions were unlawful. Unless
the person is successful upon the merits in such an action, indemnification may
generally be awarded only after a determination of independent members of the
Board of Directors or a committee thereof, by independent legal counsel or by
vote of the shareholders that the applicable standard of conduct was met by the
director to be indemnified.
A director, employee, agent, or officer who is wholly successful, on the
merits or otherwise, in defense of any proceeding to which he or she was a
party, is entitled to receive indemnification against reasonable expenses,
including attorneys' fees, incurred in connection with the proceeding. In
addition, a corporation may indemnify or advance expenses to an officer,
employee or agent who is not a director to a greater extent than permitted for
indemnification of directors, if consistent with law and if provided for by its
articles of incorporation, bylaws, resolution of its shareholders or directors
or in a contract.
In addition to the foregoing, unless hereafter limited by the Company's
Articles of Incorporation, a court, upon petition by an officer or director, may
order the Company to indemnify such officer or director against liabilities
arising in connection with any proceeding. A court may order the Company to
provide such indemnification, whether or not the applicable standard of conduct
described above was met by the officer or director. To order such
indemnification the court must determine that the petitioner is fairly and
reasonably entitled to such indemnification in light of the circumstances. With
respect to liabilities arising as a result of proceedings on behalf of the
Company, a court may only require that a petitioner be indemnified as to the
reasonable expenses incurred.
II-2
<PAGE>
Colorado law authorizes the Company to reimburse or pay reasonable expenses
incurred by a director, officer, employee or agent in connection with a
proceeding, in advance of a final disposition of the matter. Such advances of
expenses are permitted if the person furnishes to the Company a written
statement of his belief that he met the applicable standard of conduct required
to permit such indemnification. The person seeking such expense advances must
also provide the Company with a written agreement to repay such advances if it
is determined the applicable standard of conduct was not met. A determination
must also be made that the facts known to the Company would not preclude
indemnification.
The statutory section cited above further specifies that any provisions for
indemnification of or advances for expenses to directors which may be contained
in the Company's Articles of Incorporation, Bylaws, resolutions of its
shareholders or directors, or in a contract (except for insurance policies)
shall be valid only to the extent such provisions are consistent with the
Colorado statutes and any limitations upon indemnification set forth in the
Articles of Incorporation.
The statutory provision cited above also grants the power to the Company to
purchase and maintain insurance policies which protect any director, officer,
employee, fiduciary or agent against any liability asserted against or incurred
by them in such capacity arising out of his status as such. Such policies may
provide for indemnification whether or not the corporation would otherwise have
the power to provide for it. No such policies providing protection against
liabilities imposed under the securities laws have been obtained by the Company.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the issuer
pursuant to the foregoing provisions, or otherwise, the small business issuer
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
and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the small business issuer of the expenses incurred or
paid by a director, officer or controlling person of the small business issuer
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 small business issuer 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 its is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-3
<PAGE>
Item 8. EXHIBITS.
The following is a complete list of exhibits filed as part of this
Registration Statement, which exhibits are filed herewith or incorporated by
reference herein.
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.1 Restated Articles of Incorporation. (A)
4.2 Amendment to Articles of Incorporation. (B)
4.3 Bylaws. (C)
4.4 Specimen form of the Company's Stock Certificate. (D)
4.5 Topro, Inc. 1992 Incentive Stock Option Plan. (E)
4.6 Topro, Inc. 1997 Stock Option and Stock Bonus Plan. (F)
5.1 Opinion of Key & Mehringer, P.C. as to the legality of the securities
registered hereby. Filed herewith.
23.1 Consent of Key & Mehringer, P.C. See Exhibit 5.1.
23.2 Consent of Hein + Associates LLP. Filed herewith.
23.3 Consent of BDO Seidman, LLP. Filed herewith.
- ------------
(A) Incorporated by reference from the Company's Form 10-KSB for the
fiscal year ended June 30, 1996.
(B) Incorporated by reference from Exhibit 3.1 to the Company's
Form 10-QSB for the quarter ended March 31, 1997.
(C) Incorporated by reference from Exhibit 3.3 to Registration Statement
on Form S-1, File No. 33-47159, effective June 17, 1992.
II-4
<PAGE>
(D) Incorporated by reference from Exhibit 3.4 to the Registrant's
Registration Statement on Form S-1, File No. 33-47159, effective date
June 17, 1992.
(E) Incorporated by reference from Exhibit 10.7 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended June 30, 1993.
(F) Incorporated by reference from Exhibit 10.23 to the Registrant's
Annual Report on Form 10-KSB for the fiscal year ended June 30, 1997.
Item 9. UNDERTAKINGS.
The undersigned small business issuer will:
(a) (1) File, during any period in which offers or sales are 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;
(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 paragraph (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in an amendment by those paragraphs is
included in periodic reports filed by the Registrant pursuant to Section 13 or
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 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.
II-5
<PAGE>
(b) For purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing 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 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 and will be governed by the final adjudication of such issue.
II-6
<PAGE>
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 of filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Denver, State of Colorado, on October 16, 1997.
TOPRO, INC., Registrant
By: /s/ John Jenkins
--------------------------------
John Jenkins, President and CEO
By: /s/ Douglas H. Kelsall
--------------------------------
Douglas H. Kelsall, Principal
Financial and Accounting Officer
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on
the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ John Jenkins President, Chief Executive October 16, 1997
- ----------------------------- Officer and Director
John Jenkins
/s/ H. Robert Gill Director October 16, 1997
- -----------------------------
H. Robert Gill
/s/ Robert L. Costello Director October 16, 1997
- -----------------------------
Robert L. Costello
/s/ Robert C. Pearson Director October 16, 1997
- -----------------------------
Robert C. Pearson
II-7
<PAGE>
EXHIBIT 5.1
OPINION OF COUNSEL
October 17, 1997
The Board of Directors
Topro, Inc.
2525 W. Evans Avenue
Denver, CO 80219
RE: FORM S-8 REGISTRATION STATEMENT
OPINION OF COUNSEL
Dear Sirs:
As securities counsel for Topro, Inc. (the "Company") a Colorado
corporation, we have examined the originals or copies, certified or otherwise
identified, of the Articles of Incorporation, as restated and amended, and
Bylaws, as amended, of the Company, corporate records of the Company, including
minute books of the Company as furnished to us by the Company, certificates of
public officials and of representatives of the Company, statutes and other
records, instruments and documents pertaining to the Company as a basis for the
opinions hereinafter expressed. In giving such opinions, we have relied upon
certificates of officers of the Company with respect to the accuracy of the
factual matters contained in such certificates.
We have also, as such counsel, examined the Registration Statement on Form
S-8, File No. 333-______ (the "Registration Statement") to be filed with the
Commission on or about October 17, 1997 covering up to 2,240,000 shares of
Common Stock, $.0001 par value (the "Common Stock"), which may be issued under
the Company's 1992 Incentive Stock Option Plan and 1997 Stock Option and Stock
Bonus Plan (collectively, the "Plans"), as more particularly described in the
Registration Statement.
Based upon the foregoing and subject to the other qualifications and
limitations stated in this letter, we are of the opinion that:
(1) The shares of Common Stock reserved for issuance as Bonus Shares under
the 1997 Stock Option and Stock Bonus Plan have been duly authorized,
and upon issuance will constitute validly issued, fully paid and
non-assessable shares of Common Stock; and
(2) The shares of Common Stock reserved for issuance upon the exercise of
Options granted under the Plans have been duly authorized and, upon
exercise of Options and
<PAGE>
The Board of Directors
Topro, Inc.
Page 2
payment of the exercise price stated in the Options, will constitute
validly issued, fully paid and non-assessable shares of Common Stock.
This opinion is a legal opinion and not an opinion as to matters of fact.
This opinion is limited to the laws of the State of Colorado and the federal law
of the United States of America, and to the matters stated herein. This opinion
is made as of the date hereof, and after the date hereof, we undertake no, and
disclaim any, obligation to advise you of any change in any matters set forth
herein. This opinion is furnished to you solely in connection with the
transactions referred to herein, and may not be relied on by any other person,
firm or entity without our prior written consent.
We hereby consent to such use of our name in the Registration Statement and
to the filing of this opinion as an Exhibit thereto. In giving this consent, we
do not thereby admit that we come within the category of persons whose consent
is required under Section 7 of the United States Securities Act of 1933 or the
Rules and Regulations of the Securities and Exchange Commission promulgated
thereunder.
Very truly yours,
/s/ Key & Mehringer, PC
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITOR'S CONSENT
We hereby consent to the incorporation by reference in the Form S-8
Registration Statement of Topro, Inc. filed on or about October 16, 1997, of
our report dated October 4, 1996, accompanying the consolidated financial
statements of Topro, Inc. for the fiscal year ended June 30, 1996.
HEIN + ASSOCIATES LLP
/s/ Hein + Associates LLP
Denver, Colorado
October 16, 1997
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Topro, Inc.
Denver, Colorado
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement, of our report dated
December 18, 1996 (except for Note 3, for which the date is December 31, 1996
and Note 6, for which the date is February 10, 1997), relating to the
combined financial statements of All Control Systems, Inc. appearing in
Amendment No. 1 on Form 8-K/A dated February 7, 1997, Amendment No. 2 on
Form 8-K/A dated February 13, 1997, Amendment No. 3 on Form 8-K/A dated
February 28, 1997 and Amendment No. 4 on Form 8-K/A filed on March 5, 1997 to
Topro, Inc.'s Current Report on Form 8-K dated January 15, 1997, and our
report dated September 26, 1997, relating to the consolidated financial
statements of Topro, Inc. and subsidiaries appearing in the Company's Annual
Report on Form 10-KSB for its fiscal year ended June 30, 1997.
BDO SEIDMAN, LLP
/s/ BDO Seidman, LLP
October 13, 1997
