As filed with the Securities and Exchange Commission on June 4, 2004
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
THE TOPPS COMPANY, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-2849283
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
1 Whitehall Street
New York, New York 10004
(212) 376-0300
(Address, including zip code, and telephone number, including area code,
of principal executive offices)
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The Topps Company, Inc. 2001 Stock Incentive Plan
(Full title of the plan)
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Warren E. Friss, Esq.
General Counsel
The Topps Company, Inc.
1 Whitehall Street
New York, New York 10004
(212) 376-0300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
Steven J. Gartner, Esq.
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019-6099
(212) 728-8000
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
securities to be Amount to be maximum maximum Amount of
registered registered offering price aggregate registration
per share (3) offering fee
price (3)
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Common Stock, 2,100,000 (1) $8.71 $18,291,000 $2,317.47
$0.01 par value 495,605 (2) N/A N/A N/A
per share
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(1) This Registration Statement covers 2,100,000 shares of the common stock,
$0.01 par value per share (the "Common Stock") of The Topps Company, Inc.
authorized to be offered and sold pursuant to The Topps Company, Inc. 2001
Stock Incentive Plan (the "Plan"). In addition, this Registration Statement
covers an indeterminable number of additional shares as may hereafter be
offered or issued pursuant to the Plan to prevent dilution resulting from
stock splits, stock dividends or similar transactions effected without the
receipt of consideration.
(2) This Registration Statement also covers 495,605 shares of Common Stock
previously authorized for issuance under the Company's 1996 Stock Option
Plan (the "1996 Plan") for which a Registration Statement on form S-8 was
filed and with respect to which the Company has already paid a filing fee.
Because the Company has moved shares of Common Stock from the 1996 Plan,
with respect to which a registration fee has already been paid, to the
Plan, the Company is not paying a registration fee for these securities.
(3) Estimated solely for calculating the amount of the registration fee,
pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act of
1933 (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange Commission
(the "Commission") by The Topps Company, Inc., a Delaware corporation (the
"Company"), are incorporated by reference into the Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
February 28, 2004, filed pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act");
(b) The Company's Current Reports on Form 8-K, filed on April 6, 2004,
April 8, 2004 and May 26, 2004, respectively, pursuant to the Exchange Act;
and
(c) The description of the Company's Common Stock, par value $0.01 per
share (the "Common Stock"), which is contained in the Company's
Registration Statement on Form 8-A, filed pursuant to the Exchange Act,
dated May 1, 1987, as updated in the Company's Registration Statement on
Form S-1, Registration No. 33-27826, filed pursuant to the Securities Act,
dated April 26, 1989.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all the securities offered hereby
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 the filing of such documents with the
Commission. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein (or in any other subsequently filed
document which also is incorporated by reference herein) modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby is being passed
upon for the Company by Willkie Farr & Gallagher LLP. As of the date of this
Registration Statement, Jack H. Nusbaum, a partner of Willkie Farr & Gallagher
LLP, is a director of the Company and beneficially owns 152,400 shares of Common
Stock, including 85,000 shares issuable upon the exercise of options. As a
non-employee director of the Company, Mr. Nusbaum will be eligible to receive
discretionary grants of Common Stock options and restricted shares of Common
Stock pursuant to the terms of the Plan to the same degree as other non-employee
directors.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law expressly permits
indemnification of officers and directors of Delaware corporations against
claims, judgments and expenses arising in connection with legal or
administrative proceedings or otherwise, including amounts paid in settlement of
a claim or litigation, if the officer or director acted in good faith and in a
manner he believed to be in, or not opposed to, the best interest of the
corporation.
Article NINTH of the Company's Restated Certificate of Incorporation
provides that no director of the Company shall be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except (i) for breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of the law, (iii) for the unlawful
payment of dividends on or redemption of the Company's capital stock or (iv) for
any transactions from which the director derives an improper personal benefit.
Article THIRTEENTH of the Company's Restated Certificate of Incorporation
provides that any person who was or is a party or is threatened to be made a
party to any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative (whether or not by or
in the right of the Company) by reason of the fact that he is or was a director,
officer, incorporator, employee, or agent of the Company, or is or was serving
at the request of the Company as a director, officer, incorporator, employee,
partner, trustee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise (including an employee benefit plan), shall be
entitled to be indemnified by the Company to the full extent then permitted by
law against expenses (including attorneys' fees), judgments, fines (including
excise taxes assessed on a person with respect to an employee benefit plan), and
amounts paid in settlement incurred by him in connection with such action, suit,
or proceeding.
The Company also has a policy insuring it and its directors and officers
against certain liabilities, including liabilities under the Securities Act.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
Item 8. EXHIBITS
Exhibit No. Description of Exhibits
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5 Opinion of Willkie Farr & Gallagher LLP regarding the legality
of the securities being registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Willkie Farr & Gallagher LLP (included in Exhibit 5).
24 Power of Attorney (reference is made to the signature page).
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to the 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 paragraphs (a)(i) and (a)(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 Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) 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.
(c) 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.
2. The undersigned registrant hereby undertakes 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
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.
3. 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 on the 3rd
day of June 2004.
THE TOPPS COMPANY, INC.
By: /s/ Arthur T. Shorin
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Arthur T. Shorin
Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned officers and directors of The Topps Company, Inc.
hereby severally constitutes and appoints Warren E. Friss as the
attorney-in-fact for the undersigned, in any and all capacities, with full power
of substitution, to sign any and all pre- or post-effective amendments to this
Registration Statement, any subsequent Registration Statement for the same
offering which may be filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, and any and all pre- or post-effective amendments thereto, and
to file the same with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that each said attorney-in-fact may lawfully 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:
Name Title Date
---- ----- ----
By: /s/ Arthur T. Shorin Chairman of the Board and May 17, 2004
------------------------ Chief Executive Officer
Arthur T. Shorin (principal executive
officer)
By: /s/ Catherine Jessup Vice President and May 17, 2004
------------------------ Chief Financial Officer
Catherine Jessup (principal financial and
accounting officer)
By: /s/ Allan A. Feder Director June 3, 2004
------------------------
Allan A. Feder
By: /s/ Stephen D. Greenberg Director May 18, 2004
------------------------
Stephen D. Greenberg
By: /s/ Ann Kirschner Director May 18, 2004
------------------------
Ann Kirschner
By: /s/ David M. Mauer Director May 18, 2004
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David M. Mauer
By: /s/ Edward D. Miller Director May 19, 2004
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Edward D. Miller
By: /s/ Jack H. Nusbaum Director May 18, 2004
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Jack H. Nusbaum
By: /s/ Richard Tarlow Director May 19, 2004
------------------------
Richard Tarlow
By: /s/ Stanley Tulchin Director May 18, 2004
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Stanley Tulchin
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
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5 Opinion of Willkie Farr & Gallagher LLP regarding the legality
of the securities being registered.
23.1 Consent of Deloitte & Touche LLP.