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As filed with the Securities and Exchange Commission on August 28, 1996
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
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WILSHIRE TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
California 33-0433823
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
5441 Avenida Encinas,
Suite A,
Carlsbad, California 92008
Telephone: (619) 929-7200
(Address, including ZIP Code, and telephone number, including area code,
of registrant's principal executive offices)
(1) 1992 Stock Option Plan of Wilshire Technologies, Inc.;
(2) 1993 Stock Option Plan of Wilshire Technologies, Inc.;
(3) 1995 Stock Option Plan of Wilshire Technologies, Inc.;
(4) Non-Qualified Stock Option Agreements
(Full Title of Plans)
James W. Klingler, Copies to:
Chief Financial Officer, Gilbert E. Haakh, Esq.
Wilshire Technologies, Inc. Kindel & Anderson L.L.P.
5441 Avenida Encinas, 555 S. Flower Street
Suite A 29th Floor
Carlsbad, California 92008 Los Angeles, CA 90071
Telephone: (213) 688-2554
Telephone: (619) 929-7200
(Name, address, including ZIP Code,
and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount maximum maximum Amount of
to be offering price aggregate registration
Titles of securities to be registered registered per share offering price fee
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<S> <C> <C> <C> <C>
Common stock, no par value............. 2,557,182 shares(1) $1.625(2) $4,155,420.70(2) $1,432.90
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(1) Consists of shares issuable on exercise of stock options. This
Registration Statement also includes, pursuant to Rule 416, any shares
that become issuable by reason of certain events specified in such stock
options.
(2) Calculated pursuant to Rule 457(h) (1) based on $1.625 per share, the
average of the high and low prices reported in the American Stock
Exchange Consolidated Reporting System for August 23, 1996, which is
within five business days before the filing date of this Registration
Statement.
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This Registration Statement on Form S-8 is being filed by Wilshire
Technologies, Inc. (the "Company") with respect to (i) 37,182 shares of common
stock, no par value per share (the "Common Stock") of the Company issuable on
exercise of stock options granted pursuant to the Company's 1992 Stock Option
Plan; (ii) 250,000 shares of Common Stock issuable upon exercise of stock
options granted or to be granted pursuant to the Company's 1993 Stock Option
Plan; (iii) 1,750,000 shares of Common Stock issuable upon exercise of stock
options granted or to be granted pursuant to the Company's 1995 Stock Option
Plan; and (4) 520,000 shares of Common Stock issuable upon exercise of
non-qualified stock options not granted under any of the above-mentioned Plans.
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
(plan information and registration information) will be sent or given to
employees as specified by Securities and Exchange Commission Rule 428(b)(1).
Such documents need not be filed with the Securities and Exchange Commission
(the "Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These documents,
which include the statement of availability required by Item 2 of Form S-8, and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Company heretofore filed with the
Commission are incorporated in this Registration Statement by reference: (a)
the Company's most recent Annual Report on Form 10-KSB for the fiscal year
ended November 30, 1995 filed under the Securities Exchange Act of 1934 (the
"Exchange Act"); (b) the Company's Quarterly Reports on Form 10-QSB for the
fiscal quarters ended February 29 and May 31, 1996; and (c) the description of
the Common Stock in Exhibit 4 to the Registrant's Form 8-K dated August 14,
1996.
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All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange 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. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the shares of Common Stock being offered hereby will
be passed upon by Kindel & Anderson L.L.P., 555 S. Flower Street, 29th Floor,
Los Angeles, California 90071. Mr. Gilbert E. Haakh, Of Counsel to that firm,
is an Assistant Secretary (non-employee) of the Company and owns an option,
issued under the 1995 Stock Option Plan, to purchase 15,000 shares of Common
Stock at $0.875 per share.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The California Corporations Code provides that California corporations
may include provisions in their articles of incorporation relieving directors
of monetary liability for breach of their fiduciary duty as directors, except
for the liability of a director resulting from (i) any transaction from which
the director derives an improper personal benefit, (ii) acts or omissions
involving intentional misconduct or the absence of good faith, (iii) acts or
omissions constituting an unexcused pattern of inattention to the director's
duty, (iv) acts or omissions showing a reckless disregard for the director's
duty or (v) the making of an illegal distribution to shareholders or an illegal
loan or guaranty. The Company's Articles of Incorporation provide that the
liability of the directors for monetary damages shall be eliminated to the
fullest extent permitted by California law.
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The Company's Articles provide that the Company is authorized to
provide indemnification of agents (as defined in the California Corporations
Code) for breach of duty to the Company and shareholders through Bylaw
provisions or through agreements with the agents, or both, in excess of the
indemnification otherwise permitted by the California Corporations Code,
subject only to the limits on such excess indemnification set forth in the
California Corporations Code. The Company has entered into indemnification
provisions with certain agents. The Company's Bylaws provide that the Company
shall indemnify its agents to the fullest extent permitted by California and
federal law.
The Company's officers and directors are insured under Officers' and
Directors' liability insurance policies.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index herein.
ITEM 9. UNDERTAKINGS.
(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 (the "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:
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Provided, however, that paragraphs (a)(1)(i) and (a)(1)(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 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 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.
(b). The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 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 Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 6 above, or
otherwise, the Registrant has been advised that in the opinion of the
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
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 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
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 Carlsbad, State of California, on August 27,
1996.
WILSHIRE TECHNOLOGIES, INC.
By: /s/ STEPHEN P. SCIBELLI, JR.
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Stephen P. Scibelli, Jr.
President
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 indicated.
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Signature Title Date
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<S> <C> <C>
/s/ STEPHEN P. SCIBELLI, JR. President, (Principal August 27, 1996
- ---------------------------------- Executive Officer),
Stephen P. Scibelli, Jr. and Director
/s/ JAMES W. KLINGLER Chief Financial August 27, 1996
- ---------------------------------- Officer, Secretary
James W. Klingler and Treasurer
(Principal Financial
Officer and Principal
Accounting Officer)
/s/ JOE E. DAVIS Director August 27, 1996
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Joe E. Davis
/s/ WILLIAM J. HOPKE Director August 27, 1996
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William J. Hopke
/s/ KENNETH J. WIDDER Director August 27, 1996
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Kenneth J. Widder
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
4.1 Form of stock option granted on September 16, 1994 to directors
Black, Davis, Landry and Widder. (1)
4.2 Form of stock option granted on September 16, 1994 to Mr. Stephen P.
Scibelli, Jr. (2)
4.3 Form of stock option granted on December 6, 1994 to director William J.
Hopke. (3)
4.4 Form of stock option granted on April 17, 1995 to directors Black, Davis,
Hopke, Landry and Widder. (4)
4.5 Form of stock option granted on April 17, 1995 to Mr. Stephen P. Scibelli, Jr. (5)
5 Opinion of Kindel & Anderson L.L.P.
23(a) Consent of Kindel & Anderson L.L.P. (contained in its opinion filed as
Exhibit 5 to this Registration Statement.)
23(b) Consent of Ernst & Young, LLP
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NOTE: Certain of the Exhibits listed above are incorporated herein by
reference to other documents previously filed with the Commission
as follows:
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Exhibit
Document to which Designation
Note Cross Reference in such
Reference is Made Document
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1 Form 10-QSB dated October 10, 1995 10.11
2 Form 10-QSB dated October 10, 1995 10.14
3 Form 10-QSB dated October 10, 1995 10.12
4 Form 10-QSB dated October 10, 1995 10.13
5 Form 10-QSB dated October 10, 1995 10.15
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EXHIBIT 5
[KINDEL & ANDERSON L.L.P. LETTERHEAD]
AUGUST 27, 1996
57471-000
Wilshire Technologies, Inc.
5441 Avenida Encinas, Suite A
Carlsbad, California 92008
Gentlemen:
This opinion is delivered to you in connection with the Registration
Statement on Form S-8 to be filed with the Securities and Exchange Commission
for the purpose of registering under the Securities Act of 1933, as amended, an
additional 2,557,182 shares of Common Stock, no par value, of Wilshire
Technologies, Inc. (the "Company") that may be issued (1) on exercise of
options granted or to be granted under the Company's 1992, 1993 and 1995 Stock
Option Plans and (2) on exercise of non-qualified stock options not granted
under such Plans.
It is our opinion that the 2,557,182 shares of Common Stock issuable
upon the exercise of these options have been duly authorized, and, when issued
and paid for in accordance with the terms of the options, will be legally
issued, fully-paid and nonassessable.
Gilbert E. Haakh, Of Counsel to this firm, is Assistant Secretary
(non-employee) of the Company and owns an option to purchase 15,000 shares of
its Common Stock.
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[KINDEL & ANDERSON L.L.P. LETTERHEAD]
Wilshire Technologies, Inc.
August 27, 1996
Page 2
We consent to the filing of this opinion as Exhibit 5 to the
above-mentioned Registration Statement and to the reference therein to our firm
in connection therewith.
Very truly yours,
/s/ GILBERT E. HAAKH
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of KINDEL & ANDERSON L.L.P.
GEH:cbc
Enclosure
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EXHIBIT 23(B)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Wilshire Technologies, Inc. 1992, 1993 and 1995
Stock Option Plans and to certain non-qualified stock options not granted under
such Plans of our report dated January 12, 1996 with respect to the
consolidated financial statements of Wilshire Technologies, Inc. included in
the Annual Report (Form 10-KSB) for the year ended November 30, 1996, filed
with the Securities and Exchange Commission.
/s/ERNST & YOUNG LLP
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ERNST & YOUNG LLP
San Diego, California
August 27, 1996
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