As filed with the Securities and Exchange Commission on March 15, 1999
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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SIRCO INTERNATIONAL CORP.
(Exact name of registrant as specified in its charter)
New York 13-2511270
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
24 Richmond Hill Avenue
Stamford, Connecticut 06901
(203) 359-4100
(Address, including zip code, and telephone number,
including area code of Registrant's principal executive offices)
SIRCO INTERNATIONAL CORP. 1995 STOCK OPTION PLAN
Copies to:
Joel Dupre
Chairman of the Board and Chief Executive Officer
Sirco International Corp.
24 Richmond Hill Avenue
Stamford, Connecticut 06901
(203) 359-4100
Eric M. Hellige, Esq.
Pryor Cashman Sherman & Flynn LLP
410 Park Avenue
New York, New York 10022
(212) 421-4100
(Names, addresses and telephone numbers of agent for service)
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================ ====================== ===================== ======================= ======================
Title of Amount of Shares to Proposed Maximum Proposed Maximum Amount of
Securities to be Registered * Offering Price Per Aggregate Offering Registration Fee
be Registered Share** Price
================================ ====================== ===================== ======================= ======================
<S> <C> <C> <C> <C>
Common Stock, $.01 par 800,000 shares $1.78 $1,424,000 $431.52
value .
================================ ====================== ===================== ======================= ======================
</TABLE>
* All the securities registered hereby are issuable under the Plan.
** Calculated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee (based on the closing price per share
of the Registrant's common stock as reported on the NASDAQ Small Cap
market on March 9, 1999.) In addition, pursuant to Rule 416(c) under
the Securities Act of 1933, this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
Plan described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information specified in this Part
I will be sent or given to directors, officers and employees, as required by
Rule 428(b)(1) of the Securities Act of 1933 (the "Securities Act"). 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 of the Securities Act. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this form, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
See Rule 421 of the Securities Act.
Item 1. Plan Information.
Not required to be filed with the Commission.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information previously filed with the
Commission by the Registrant (File No. 0-4465) are incorporated by reference in
this Registration Statement:
(1) Our Annual Report on Form 10-K for the fiscal year ended November
30, 1998; and
(2) The description of our Common Stock contained in our Registration
Statement on Form S-8 (File No. 33-19611) filed January 10, 1997 under the
Securities Act.
All documents that we file pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended, after the effective
date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all the 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 be a part hereof
from the date of filing of such documents.
Any statement contained herein or 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 document which 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.
<PAGE>
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Eric M. Hellige, a member of our Board of Directors, is a member of
Pryor Cashman Sherman & Flynn LLP, our counsel ("Pryor Cashman").
Item 6. Indemnification of Directors and Officers.
Reference is made to Sections 721 through 725 of the Business
Corporation Law of the State of New York (the "BCL"), which provides for
indemnification of directors and officers of New York corporations under certain
circumstances.
Section 722 of the BCL provides that a corporation may indemnify
directors and officers as well as other employees and individuals against
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorneys' fees, in connection with actions or proceedings, whether civil or
criminal (other than an action by or in the right of the corporation, a
"derivation action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to amounts paid in settlement and reasonable expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
actions, and the statute does not apply in respect of a threatened action, or a
pending action that is settled or otherwise disposed of, and requires court
approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation. Section 721 of the BCL
provides that Article 7 of the BCL is not exclusive of other indemnification
that may be granted by a corporation's certificate of incorporation,
disinterested director vote, shareholder vote, agreement or otherwise.
Article XII of our by-laws requires us to indemnify our officers and
directors to the fullest extent permitted under the BCL. Article XII of our
by-laws further provides that no director shall be personally liable to us or
our shareholders for monetary damages for breach of fiduciary duty as a
director, except that no indemnification shall be made in respect of (1) a
threatened action, or a pending action which is settled or otherwise disposed
of, or (2) any claim, issue or matter as to which such person shall have been
adjudged to be liable to us unless and only to the extent that the court in
which such action or suit was brought or, if no action was brought, any court of
competent jurisdiction determines upon application that, in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such portion of the settlement and expenses as the court deems
proper.
<PAGE>
Section 402(b) of the BCL provides that a corporation's certificate of
incorporation may include a provision that eliminates or limits the personal
liability of the corporation's directors to the corporation or its shareholders
for damages for any breach of a director's duty, provided that such provision
does not eliminate or limit (1) the liability of any director if a judgment or
other final adjudication adverse to the director establishes that the director's
acts or omissions were in bad faith or involved intentional misconduct or a
knowing violation of law or that the director personally gained a financial
profit or other advantage to which the director was not legally entitled or that
the director's acts violated Section 719 of the BCL, or (2) the liability of any
director for any act or omission prior to the adoption of a provision authorized
by Section 402(b) of the BCL. Article Sixth of our Certificate of Incorporation,
as amended, provides that none of our directors shall be liable to us or our
shareholders for any breach of duty in such capacity except as provided in
Section 402(b) of the BCL.
Any amendment to or repeal of our Certificate of Incorporation or
by-laws shall not adversely affect any right or protection of our directors or
officers for or with respect to any acts or omissions of such director or
officer occurring prior to such amendment or repeal.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our controlling directors, officers or persons pursuant
to the foregoing, we have been informed that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
Exhibit No. Description
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4.1 Form of Common Stock certificate, incorporated herein by
reference from Exhibit 4.1 to our Registration Statement on
Form S-8 (File No. 33-00637) filed February 1, 1996;
4.2 Certificate of Incorporation, as amended, incorporated by
reference to our Registration Statement on Form S-1 filed with
the Securities and Exchange Commission on August 27, 1969
under Registration Number 2-34436.
4.3 Certificate of Amendment of the Certificate of Incorporation,
incorporated by reference to the our definitive proxy
statement filed with the Securities and Exchange Commission in
connection with the Company's Annual Meeting of Shareholders
held in May 1984.
4.4 Certificate of Amendment to the Certificate of Incorporation,
incorporated by reference to Exhibit 3(b) to the Company's
Annual Report on Form 10-K for the year ended November 30,
1988.
4.5 Certificate of Amendment to the Certificate of Incorporation,
incorporated by reference to Exhibit 3(e) to the Company's
Annual Report on Form 10-K for the year ended November 30,
1994, as amended.
4.6 Certificate of Amendment of the Certificate of Incorporation,
incorporated by reference to Exhibit 3 to the Company's
Quarterly Report on Form 10-Q for the quarter ended August 30,
1995.
<PAGE>
4.7 Certificate of Amendment of Certificate of Incorporation filed
February 17, 1999, incorporated by reference to Exhibit 3(f)
to the Company's Annual Report on Form 10-K for the year ended
November 30, 1998.
4.8 By-laws, amended and restated as of December, 1996,
incorporated by reference to Exhibit 3(e) to the Company's
Annual Report on Form 10-K for the year ended November 30,
1996.
5.1 Opinion of Pryor Cashman Sherman & Flynn LLP
23.1 Consent of Pryor Cashman Sherman & Flynn LLP (included as part
of Exhibit 5.1)
23.2 Consent of Nussbaum Yates & Wolpow, P.C.
24 Powers of Attorney (included in the signature page of this
Registration Statement)
Item 9. Undertakings.
We, the undersigned registrant, hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement to include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this 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 herein, 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.
We hereby further undertake that, for the purposes of determining any
liability under the Securities Act of 1933, each filing of our annual reports
pursuant to Section 13(a) or 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
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
We hereby further undertake that:
(1) For the purpose of determining any liability under the
Securities Act of 1933, the information omitted from the form
of prospectus filed as part of this registration statement in
reliance under Rule 430A and contained in a form of prospectus
filed by us pursuant to Rule 424(b)(1) or 497(h) under the
Securities Act of 1933 shall be deemed to be part of this
registration statement at the time it was declared effective.
<PAGE>
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have 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 us of expenses incurred or paid by
one of our directors, officers or controlling person in connection with the
securities being registered, we will, unless in the opinion of our counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by us is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issues.
<PAGE>
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 New York, State of New York, on this 15th day of
March, 1999.
SIRCO INTERNATIONAL CORP.
By /s/ Joel Dupre
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Joel Dupre
Chairman of the Board and
Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes Joel
Dupre, Eric M. Hellige and Paul H. Riss, and each of them singly, his true and
lawful attorneys-in-fact with full power to execute in the name of such person,
in the capacities stated below, and to file, such one or more amendments to this
Registration Statement as the Registrant deems appropriate, and generally to do
all such things in the name and on behalf of such person, in the capacities
stated below, to enable the Registrant to comply with the provisions of the
Securities Act of 1933, and all requirements of the Securities and Exchange
Commission thereunder, hereby ratifying and confirming the signature of such
person as may be signed by said attorneys-in-fact, or any one of them, to any
and all amendments to this Registration Statement.
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.
Dated: March 15, 1999 /s/ Joel Dupre
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(Joel Dupre)
Chairman of the Board and
Chief Executive Officer
Dated: March 15, 1999 /s/ Paul H. Riss
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(Paul H. Riss)
Chief Financial Officer
and Director
Dated: March 15, 1999 /s/ Eric M. Hellige
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(Eric M. Hellige)
Director
Dated: March 15, 1999 /s/ Eric Smith
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(Eric Smith)
Director
Dated: March 15, 1999 /s/ Barrie Sommerfield
----------------------
(Barrie Sommerfield)
Director
Dated: March 15, 1999 /s/ Anthony Scalice
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(Anthony Scalice)
Director
EXHIBIT 5
March 15, 1999
Sirco International Corp.
24 Richmond Hill Avenue
Stamford, Connecticut 06901
Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement"), to be filed by you with the Securities and Exchange Commission with
respect to the registration under the Securities Act of 1933, as amended (the
"Act"), of 800,000 shares of common stock, par value $.01 per share (the
"Shares"), of Sirco International Corp. (the "Company") for delivery under the
Company's 1995 Stock Option Plan (the "Plan").
We are qualified to practice law in the State of New York. We express
no opinion as to, and, for the purposes of the opinion set forth herein, we have
conducted no investigation of, and do not purport to be experts on, any laws
other than the laws of the State of New York and the federal laws of the United
States of America.
We have examined such documents as we considered necessary for the
purposes of this opinion. Based on such examination, it is our opinion that the
Shares have been duly authorized and upon issuance in accordance with the Plan,
will be legally issued, fully-paid and non-assessable under the State of New
York (the state of incorporation of the Company).
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/PRYOR CASHMAN SHERMAN & FLYNN LLP
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PRYOR CASHMAN SHERMAN & FLYNN LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) and related prospectus of Sirco International Corp. for the registration of
800,000 shares of its common stock, of our report dated February 12, 1999,
(except for the last paragraph of Note 2 as to which the date is February 25,
1999), with respect to the consolidated financial statements and schedule of
Sirco International Corp. and subsidiaries included in its Annual Report (Form
10-K) for the year ended November 30, 1998 filed with the Securities and
Exchange Commission.
/s/ Nussbaum Yates & Wolpow, P.C.
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NUSSBAUM YATES & WOLPOW, P.C.
Melville, New York
March 15, 1999
