As filed with the Securities and Exchange Commission on August 27, 1999.
Registration No. 333-_____
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
- --------------------------------------------------------------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
- --------------------------------------------------------------------------------
KOALA CORPORATION
-----------------
(Exact name of registrant as specified in its charter)
Colorado 84-1238908
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
11600 E. 53rd Avenue, Unit D, Denver, CO 80239
----------------------------------------------
(Address of Registrant's principal executive offices)
KOALA CORPORATION
1995 STOCK OPTION PLAN
----------------------
(Full title of the plan)
Mark A. Betker
Koala Corporation
11600 E. 53rd Avenue, Unit D
Denver, Colorado 80239
(303) 574-1000
--------------------------------------
(Name, address and telephone number of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maxi-
Title of Securities Amount to Be Offering Price Per mum Aggregate Amount of
to be Registered Registered Share Offering Price Registration Fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 650,000 Shares(1) $26.00(2) $16,900,000(2) $4,699
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
1. Pursuant to Rule 416(a) under the Securities Act of 1933, this
Registration Statement also covers such indeterminable number of
additional shares of Common Stock as may be issuable pursuant to the
antidilution provisions of the Koala Corporation 1995 Stock Option
Plan.
2. Pursuant to Rule 457 under the Securities Act of 1933, the proposed
maximum offering price per share and the proposed maximum aggregate
offering price, determined solely for the purpose of calculating the
registration fee, are based on the closing price per share of the
Registrant's Common Stock reported on the Nasdaq National Market on
August 20, 1999.
- --------------------------------------------------------------------------------
EXPLANATORY STATEMENT
This Registration Statement on Form S-8 registers 650,000 shares of Koala
Corporation, par value $0.10 per share common stock, for issuance upon exercise
of options granted pursuant to the Koala Corporation 1995 Stock Option Plan.
- --------------------------------------------------------------------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION.*
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*Information required by Part I to be contained in a Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 of the Securities Act of 1933 (the "Securities Act") and
the Note to Part I of Form S-8.
I-1
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
--------------------------------------
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
Koala Corporation (the "Company") hereby incorporates by
reference in this Registration Statement the following documents:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1998;
(b) The Company's Quarterly Report on Form 10-QSB for the fiscal quarter
ended March 31, 1999;
(c) The Company's Quarterly Report on Form 10-QSB for the fiscal quarter
ended June 30, 1999;
(d) The Company's Current Report on Form 8-K for the event occurring March
26, 1999;
(e) A description of the Company's Common Stock, par value $.10 per share
(the "Common Stock"), set forth in Item 1 of the Company's
registration statement on Form 8-A dated October 7, 1993 (File No.
0-22464); and
(f) A description of the Company's Common Stock set forth under the
caption "Description of Capital Stock" of the Company's registration
statement on Form SB-2 filed September 7, 1993 (Registration No.
33-68482-C).
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), which documents shall be deemed incorporated by
reference in this Registration Statement as a part hereof from the date of
filing such documents until a post-effective amendment to this Registration
Statement is filed which indicates that all shares of Common Stock being offered
hereby have been sold or which deregisters all shares of Common Stock
(registered under this Registration Statement) then remaining unsold.
Item 4. DESCRIPTION OF SECURITIES
-------------------------
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
--------------------------------------
Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
The Company's Articles of Incorporation require the Company to
indemnify all of its present and former officers and directors, or any person
who may have served at the Company's request as an officer or a director of
another corporation in which the Company owns shares of capital stock or of
which the Company is a creditor, and the personal representatives of all such
persons, against expenses actually and necessarily incurred in connection with
the defense of any legal proceeding in which any such person was made a party by
reason of having served in such capacity, unless such person is adjudged to be
liable for negligence or misconduct in the performance of any duty owed to the
Company.
The Company's Articles of Incorporation provide that no
director of the Company shall be liable to the Company or any of its
shareholders for damages caused by a breach of a fiduciary duty by such director
except for the breach of the duty of loyalty, acts or omissions not in good
faith or which involve intentional misconduct or knowing violation of the law,
acts as specified in the Colorado Business Corporation Act, or any transaction
from which such director received an improper personal benefit.
II-1
<PAGE>
Sections 7-109-102 and 7-109-107 of the Colorado Business
Corporation Act authorize the indemnification against reasonable expenses of
current and former directors made party to a proceeding if the director
conducted himself in good faith, in the case of conduct in his official capacity
with the corporation, the director reasonably believed that his conduct was in
the best interests of the corporation, in the case of a criminal proceeding, the
director had no reasonable cause to believe that his conduct was unlawful, and
in all other cases, the director reasonably believed that his conduct was at
least not opposed to the corporation's best interest. A corporation may not
indemnify a director in connection with a proceeding (1) in which a director was
adjudged liable to the corporation or, (2) charging that the director derived an
improper personal benefit in which the director was adjudged liable. Section
7-109-107 provides that a corporation may indemnify an officer to the same
extent that it may indemnify a director.
The above discussion of the Registrant's Articles of
Incorporation and the Colorado Business Corporation Act is only a summary and is
qualified in its entirety by the full text of each of the foregoing.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not Applicable.
Item 8. EXHIBITS
--------
The following Exhibits are filed as part of, or are
incorporated by reference into, this Registration Statement:
3.1 Articles of Incorporation of the Company(1)
3.2 Bylaws of the Company(2)
4.1 Specimen Common Stock certificate(3)
5.1* Opinion of Otten, Johnson, Robinson, Neff &
Ragonetti, P.C. as to the legality of the Company's
Common Stock being registered.
23.1* Consent of Ernst & Young LLP.
23.2* Consent of Otten, Johnson, Robinson, Neff & Ragonetti,
P.C. (contained in Exhibit 5.1 hereto and incorporated by
reference therefrom).
- -----------------
* Filed herewith.
(1) Incorporated by reference from Exhibit 3.1 to the Company's
Registration Statement on Form SB-2,
Registration No. 333-61551.
(2) Incorporated by reference from Exhibit 3.2 to the Company's
Registration Statement on
Form SB-2, Registration No. 333-61551.
(3) Incorporated by reference to the Company's
Registration Statement on Form SB-2, Registration No.
33-68482-C.
Item 9. UNDERTAKINGS
------------
The Company 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; (ii) to
II-2
<PAGE>
reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information in this Registration Statement; and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed or any material change to such information in this Registration
Statement (or the most recent post-effective amendment thereof).
(2) That, for the purpose of determining any liability under the Securities Act
each post-effective amendment shall be deemed a new registration statement
relating to the securities offered hereby, and the offering of such securities
at that time shall be treated as the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering.
(4) 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 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to 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 hereby, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) That, 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 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 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Company 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 Denver, State of Colorado, on August 27, 1999.
KOALA CORPORATION
By: /S/MARK A. BETKER
----------------------------
Mark A. Betker
Chairman, Chief Executive Officer and President
Date: August 27, 1999
By: /S/JEFFREY L. VIGIL
----------------------------
Jeffrey L. Vigil
Vice President of Finance and Administration
(Principal Financial and Accounting Officer)
Date: August 27, 1999
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.
/S/MARK A. BETKER
----------------------------
Mark A. Betker
Chairman, Chief Executive Officer and President
(Principal Executive Officer) and Director
Date: August 27, 1999
/S/MICHAEL C. FRANSON
----------------------------
Michael C. Franson
Director
Date: August 27, 1999
/S/JOHN T. PFANNENSTEIN
----------------------------
John T. Pfannenstein
Director
Date: August 27, 1999
/S/ELLEN ROBINSON
----------------------------
Ellen Robinson
Director
Date: August 27, 1999
II-4
<PAGE>
EXHIBIT INDEX
Exhibit Number Description of Document
-------------- -----------------------
3.1 Articles of Incorporation of the Company
(incorporated by reference from Exhibit 3.1
to the Company's Registration Statement on
Form SB-2, Registration
No. 333-61551).
3.2 Bylaws of the Company (incorporated by
reference from Exhibit 3.2 to the Company's
Registration Statement on Form SB-2,
Registration No. 333-61551).
4.1 Specimen Common Stock certificate
(incorporated by reference from the
Company's Registration Statement on Form
SB-2, Registration No. 33-68482C).
5.1* Opinion of Otten, Johnson, Robinson, Neff &
Ragonetti, P.C. as to the legality of the
Company's Common Stock being registered.
23.1* Consent of Ernst & Young LLP.
23.2+ Consent of Otten, Johnson, Robinson, Neff &
Ragonetti, P.C. (contained in Exhibit 5.1
to this Registration Statement on Form S-8
and incorporated by reference therefrom).
- -------------------------
* Filed herewith.
+ Incorporated by reference from Exhibit 5.1 hereto.
II-5
<PAGE>
EXHIBIT 5.1
[Otten, Johnson, Robinson, Neff &
Ragonetti, P.C. Letterhead]
August 27, 1999
Koala Corporation
11600 E. 53rd Avenue, Unit D
Denver, Colorado 80239
Ladies and Gentlemen:
In connection with the registration under the Securities Act
of 1933, as amended (the "Act"), of 650,000 shares of the common stock of Koala
Corporation, a Colorado corporation (the "Company"), par value $0.10 per share
(the "Shares"), to be issued by the Company upon the exercise of certain options
granted pursuant to the Koala Corporation 1995 Stock Option Plan (the "Plan"),
pursuant to a Registration Statement on Form S-8 (the "Registration Statement"),
proposed to be filed with the Securities and Exchange Commission on August 27,
1999, you have requested our opinion set forth below.
We have considered such facts and examined such questions of
law as we have considered appropriate for purposes of rendering the opinion
expressed below.
We are opining only as to the Colorado Business Corporation
Act and we express no opinion with respect to the applicability or the effect of
any other laws or as to any matters of municipal law or of any other local
agencies within any state.
Subject to the foregoing and in reliance thereon, in our
opinion:
1. The Shares have been duly authorized by all necessary corporate action on the
part of the Company and; upon (i) payment for and delivery of the Shares as
contemplated in the Registration Statement and the Plan (including any option
agreements governing the terms of exercise of the options), (ii) the
countersigning of any certificates representing the Shares by a duly authorized
signatory of the registrar for the Common Stock, and (iii) the Registration
Statement becoming effective under the Securities Act of 1933, the Shares will
be validly issued, fully paid, and non-assessable.
2. The Company is duly incorporated and validly existing under the laws of the
State of Colorado.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
----------------------------------------------------
OTTEN, JOHNSON, ROBINSON, NEFF & RAGONETTI, P.C.
II-6
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement (Form S-8) pertaining to the Koala Corporation 1995 Stock
Option Plan of our report dated January 22, 1999, with respect to the
consolidated financial statements of Koala Corporation included in its Annual
Report (Form 10-KSB) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Denver, Colorado
August 27, 1999
