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As filed with the Securities and Exchange Commission on October 19, 1999
Registration No. 333-_________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TAB PRODUCTS CO.
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(Exact name of registrant as specified in its charter)
Delaware 94-1190862
- --------------------------------- ------------------------------------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
1400 Page Mill Road
Palo Alto, CA 94304
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(Address of principal executive offices) (Zip code)
TAB PRODUCTS CO.
INDIVIDUAL STOCK PURCHASE AGREEMENTS AND
INDIVIDUAL RESTRICTED STOCK BONUS AGREEMENTS
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(Full title of the plan)
Philip C. Kantz
President and Chief Executive Officer
Tab Products Co.
1400 Page Mill Road
Palo Alto, CA 94304
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (650) 852-2400.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of Securities to Amount to be offering price aggregate offering Amount of
be registered registered(1) per share(2) price(2) registration fee
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<S> <C> <C> <C> <C>
INDIVIDUAL STOCK
PURCHASE
Common Stock 107,500 $6.50 $698,750.00
Par Value $0.01
INDIVIDUAL RESTRICTED
STOCK BONUS
Common Stock 107,500 $6.50 $698,750.00
Par Value $0.01
TOTALS 215,000 $1,397,500 $388.51
</TABLE>
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(1) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any
stock split, stock dividend or similar transaction.
(2) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. The $6.50 price is based upon the average of the high and
low prices of the Common Stock on October 15, 1999, as reported on the
American Stock Exchange.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Tab Products Co. (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed
pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), containing audited financial statements for the
Company's latest fiscal year ended May 31, 1999 as filed with the Securities and
Exchange Commission on August 20, 1999.
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the registrant
document referred to in (a) above.
(c) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A under the Exchange Act, filed
on November 25, 1996, including any amendment or report filed for the purpose of
updating such description.
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 to this registration statement which indicates that
all securities offered hereby have been sold or which deregisters all securities
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.
Item 4. DESCRIPTION OF SECURITIES
The class of securities to be offered is registered under
Section 12 of the Exchange Act.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b) of the Delaware General Corporation Law
authorizes a corporation to provide in its Certificate of Incorporation that
a director of the corporation shall not be personally liable to corporation
or its stockholders for monetary damages for breach or alleged breach of the
director's "duty of care." While this statute does not change directors' duty
of care, it enables corporations to limit available relief to equitable
remedies such as injunction or rescission. The statute has no effect on a
director's duty of loyalty or liability for acts or omissions not in good
faith or involving intentional misconduct or knowing violations of law,
illegal payment of
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dividends or stock redemptions or repurchases, or for any transaction from
which the director derives an improper personal benefit. As permitted by the
statute, the Company has adopted provisions in its Certificate of
Incorporation which eliminate to the fullest extent permissible under
Delaware law the personal liability of its directors to the Company and its
stockholders for monetary damages for breach or alleged breach of their duty
of care.
Section 145 of the General Corporation Law of the State of
Delaware provides for the indemnification of officers, directors, employees
and agents of a corporation. The Company has adopted provisions in its
Certificate of Incorporation which eliminate the personal liability of its
directors to the Company and its stockholders for monetary damages for breach
or alleged breach of their duty of care. The Bylaws of the Company provide
for indemnification of its directors, officers, employees and agents to the
full extent permitted by Delaware law, including those circumstances in which
indemnification would otherwise be discretionary under Delaware law. The
Company has entered into agreements with its directors and executive officers
that require the Company to indemnify such persons to the fullest extent
permitted under Delaware law against expenses, judgments, fines, settlements
and other amounts actually and reasonably incurred (including expenses of a
derivative action) in connection with any proceeding, whether actual or
threatened, to which any such person may be made a party by reason of the
fact that such person is or was a director or an executive officer of the
Company or any of its affiliated enterprises.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
Item 8. EXHIBITS
See Exhibit Index.
Item 9. UNDERTAKINGS
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;
(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; and
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(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 (1)(i) and (l)(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 Exchange Act that are incorporated by
reference in the 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.
The undersigned registrant hereby undertakes that, 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 (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
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 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.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Palo Alto, County of Santa Clara,
State of California, on October 19, 1999.
TAB PRODUCTS CO.
By: /s/ Philip C. Kantz
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Philip C. Kantz
President and Chief Executive Officer
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of Tab Products Co., whose signatures
appear below, hereby constitute and appoint Philip C. Kantz and David J.
Davis, and each of them, their true and lawful attorneys-in-fact and agents,
each with full power of substitution, each with power to act alone, to sign
and execute on behalf of the undersigned any amendment or amendments to this
registration statement on Form S-8, and each of the undersigned does hereby
ratify and confirm all that each of said attorney-in-fact and agent, or their
or his substitutes, shall do or cause to be done by virtue hereof.
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:
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Hans A. Wolf Chairman of the Board October 19, 1999
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Hans A. Wolf
/s/ Philip C. Kantz Director, President and Chief October 19, 1999
- ----------------------- Executive Officer
Philip C. Kantz
/s/ David J. Davis Senior Vice President, Operations October 19, 1999
- ----------------------- and Chief Financial Officer
David J. Davis
/s/ William R. Kinzie Controller and Chief Accounting October 19, 1999
- ----------------------- Officer
William R. Kinzie
/s/ Robert R. Augsburger Director October 19, 1999
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Robert R. Augsburger
/s/ Dr. Kathryn S. Hanson Director October 19, 1999
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Dr. Kathryn S. Hanson
/s/ Jerry K. Myers Director October 19, 1999
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Jerry K. Myers
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EXHIBIT INDEX
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<S> <C>
4.1 Certificate of Incorporation of the Company (incorporated by reference to
Exhibit 3.1 of 1993 Form 10-K filed on August 20, 1999)
4.2 Second Amended and Restated Bylaws of the Company dated October 17, 1996
(incorporated by reference to Exhibit 4 of Form 8-K dated October 17, 1996)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: 650-833-2076 Fax: 650-327-3699 www.gcwf.com
October 19, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Tab Products Co., a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 215,000 shares of the
Common Stock, $0.01 par value, of the Company which may be issued pursuant to
the exercise of purchase rights and stock grants under individual Stock
Purchase Agreements and individual Restricted Stock Bonus Agreements
(collectively the "Agreements").
We have examined all instruments, documents and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity
to the originals of all documents submitted to us as copies. We are admitted
to practice only in the State of California and we express no opinion
concerning any law other than the law of the State of California, the
corporation laws of the State of Delaware and the federal law of the United
States. As to matters of Delaware corporation law, we have based our opinion
solely upon our examination of such laws and the rules and regulations of the
authorities administering such laws, all as reported in standard, unofficial
compilations. We have not obtained opinions of counsel licensed to practice
in jurisdictions other than the State of California.
Based on such examination, we are of the opinion that the 215,000 shares of
Common Stock which may be issued pursuant to purchase rights and stock grants
under the Agreements are duly authorized shares of the Company's Common
Stock, and, when issued against receipt of the consideration therefor in
accordance with the provisions of the Agreements, will be validly issued,
fully paid and nonassessable. We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement referred to above and the use of
our name wherever it appears in said Registration Statement.
Respectfully submitted,
GRAY CARY WARE & FREIDENRICH LLP
/s/ Diane Holt Frankle
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
of Tab Products Co. on Form S-8 of our reports dated June 28, 1999, appearing
in the Annual Report on Form 10-K of Tab Products Co. for the year ended May
31, 1999.
Deloitte & Touche LLP
San Jose, California
October 18, 1999
