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As filed with the Securities and Exchange Commission on December 20, 1996
Registration No. 333-
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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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THE CERPLEX GROUP, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 33-0411354
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
1382 BELL AVENUE
TUSTIN, CA 92780
(Address of principal executive offices) (Zip Code)
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RESTATED 1993 STOCK OPTION PLAN
(Full title of the plans)
WILLIAM A. KLEIN
CHIEF EXECUTIVE OFFICER
THE CERPLEX GROUP, INC.
1382 BELL AVENUE
TUSTIN, CA 92780
(Name and address of agent for service)
(714) 258-5600
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
==========================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
---------- ------------- ------------ -------- ---
Restated 1993 Stock Option Plan:
- --------------------------------
Options to Purchase
Common Stock 1,500,000 N/A N/A N/A
Common Stock, $0.001 par value 1,500,000 $1.09 $1,635,000 $495.45
==========================================================================================================
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Restated 1993 Stock Option
Plan by reason of any stock dividend, stock split, recapitalization or
other similar transaction effected without the receipt of consideration
which results in an increase in the number of the Registrant's outstanding
shares of Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended (the "1993 Act"), on the basis of the
average of the high and low price per share of the Common Stock of The
Cerplex Group, Inc. on December 19, 1996 as reported on the Nasdaq National
Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The Cerplex Group, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995 filed with the SEC pursuant to
Section 13(a) of the Securities Exchange Act of 1934, as
amended (the "1934 Act") on April 16, 1996;
b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996;
c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1996;
d) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 29, 1996;
e) The definitive Proxy Statement of the Registrant in connection
with the Annual Meeting of Security Holders held on August 22,
1996;
f) The Registrant's Current Report on Form 8-K dated April 8,
1996;
g) The Registrant's Current Report on Form 8-K and 8-K/A dated
May 24, 1996;
h) The Registrant's Current Report on Form 8-K dated June 11,
1996;
i) The Registrant's Current Report on Form 8-K dated September
24, 1996;
j) The Registrant's Current Report on Form 8-K dated October 15,
1996;
k) The Registrant's Current Report on Form 8-K dated December 13,
1996;
l) The Registrant's Registration Statement No. 333-12581 on Form
S-3 filed with the SEC on September 24, 1996; and
m) The Registrant's Registration Statement No. 00-23602 on Form
8-A filed with the SEC on March 9, 1994, in which there is
described the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into 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 subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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Item 4. Description of Capital Stock
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law, as amended
(the "Delaware Law"), the Registrant has broad powers to indemnify its directors
and officers against liabilities they may incur in such capacities, including
liabilities under the 1933 Act. The Registrant's Bylaws provide that the
Registrant will indemnify its directors and officers to the fullest extent
permitted by law and require the Registrant to advance litigation expenses upon
receipt by the Registrant of an undertaking by the director or officer to repay
such advances if it is ultimately determined that the director or officer is not
entitled to indemnification. The Bylaws further provide that rights conferred
under such Bylaws shall not be deemed to be exclusive of any other right such
persons may have or acquire under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
The Registrant's Restated Certificate of Incorporation provides that,
pursuant to Delaware Law, its directors shall not be liable for monetary damages
for breach of the directors' fiduciary duty of care to the Registrant and its
stockholders. This provision in the Restated Certificate of Incorporation does
not eliminate the duty of care, and in appropriate circumstances, equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware Law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to the
Registrant or its stockholders, for acts or omissions not in good faith or
involving intentional misconduct or knowing violations of law, for actions
leading to improper personal benefit to the director and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Delaware Law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws.
In addition, the Registrant has entered into agreements to indemnify
its directors in addition to the indemnification provided for in the Restated
Certificate of Incorporation and Bylaws.
Item 7. Exemption from Registration Claimed
Not Applicable.
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Item 8. Exhibits
Exhibit
Number Title Method of Filing
------ ----- ----------------
4.1 Stock Purchase Agreement dated as of November 19, Incorporated herein by reference to
1993 by and among the Registrant, the stockholders of Exhibit 4.1 to the Company's
the Registrant identified in Part A of Schedule I thereto Registration Statement on Form S-1
and the purchasers of shares of the Registrant's Series (File No. 33-75004) which was
A Preferred Stock identified in Schedule I thereto declared effective by the Commission
(including the Schedules thereto; Exhibits omitted). on April 8, 1994.
4.2 Registration Rights Agreement dated as of November Incorporated herein by reference to
19, 1993, by and among the Registrant, the investors Exhibit 4.2 to the Company's
listed on Schedule A thereto and the security holders of Registration Statement on Form S-1
the Registrant listed on Schedule B thereto, together (File No. 33-75004) which was
with Amendment No.1. declared effective by the Commission
on April 8, 1994.
4.3 Co-Sale Agreement dated as of November 19, 1993, by Incorporated herein by reference to
and among the Registrant, the managers listed on Exhibit 4.3 to the Company's
Schedule A thereto and the investors listed on Schedule Registration Statement on Form S-1
B thereto. (File No. 33-75004) which was
declared effective by the Commission
on April 8, 1994.
4.4 Warrant Agreement dated as of November 19, 1993, by Incorporated herein by reference to
and among the Registrant and the purchasers listed in Exhibit 4.4 to the Company's
Annex 1 thereto. Registration Statement on Form S-1
(File No. 33-75004) which was
declared effective by the Commission
on April 8, 1994.
4.5 Placement Agent Warrant Purchase Agreement dated Incorporated herein by reference to
as of November 19, 1993, between the Registrant and Exhibit 4.5 to the Company's
Donaldson, Lufkin & Jenrette Securities Corporation. Registration Statement on Form S-1
(File No. 33-75004) which was
declared effective by the Commission
on April 8, 1994.
4.6 Observation Rights Agreement dated as of November Incorporated herein by reference to
19, 1993, between the Registrant and certain stock Exhibit 4.6 to the Company's
purchasers. Registration Statement on Form S-1
(File No. 33-75004) which was
declared effective by the Commission
on April 8, 1994.
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Exhibit
Number Title Method of Filing
------ ----- ----------------
4.7 Observation Rights Agreement dated as of November Incorporated herein by reference to
19, 1993, between the Registrant and certain note Exhibit 4.7 to the Company's
purchasers. Registration Statement on Form S-1
(File No. 33-75004) which was
declared effective by the Commission
on April 8, 1994.
4.8 Note Purchase Agreement dated as of November 19, Incorporated herein by reference to
1993 (the "Note Purchase Agreement"), by and among Exhibit 4.8 to the Company's
the Registrant and The Northwestern Mutual Life Registration Statement on Form S-1
Insurance Company, John Hancock Mutual Life (File No. 33-75004) which was
Insurance, Registrant and Bank of Scotland London declared effective by the Commission
Nominees Limited. on April 8, 1994.
4.9 Amendment No. 2 to Registration Rights Agreement Incorporated herein by reference to
dated as of April 6, 1994, by and among the Registrant Exhibit 4.9 to the Company's
and certain of its Securities holders. Registration Statement on Form S-1
(File No. 33-75004) which was
declared effective by the Commission
on April 8, 1994.
4.10 Amendment to Note Purchase Agreement, dated as of Incorporated herein by reference to
October 27, 1994, by and among the Company, Exhibit 4.10 to the Company's
Northwestern Mutual Life Insurance Company, John Annual Report on Form 10-K for
Hancock Mutual Life Insurance Company and North the fiscal year ended December 31,
Atlantic Smaller Companies Trust P.L.C. (collectively, 1995.
the "Noteholders").
4.11 Waiver and Amendment Agreement dated April 15, Incorporated herein by reference to
1996 by and among Company, The Northwestern Exhibit 4.11 to the Company's
Mutual Life Insurance Company, John Hancock Mutual Annual Report on Form 10-K for
Life Insurance Company and North Atlantic Smaller the fiscal year ended December 31,
Companies Investment Trust PLC. 1995.
4.12 Warrant Agreement dated as of April 15, 1996 by and Incorporated herein by reference to
among Company, The Northwestern Mutual Life Exhibit 4.12 to the Company's
Insurance Company, John Hancock Mutual Life Annual Report on Form 10-K for
Insurance Company and North Atlantic Smaller the fiscal year ended December 31,
Companies Investment Trust PLC. 1995.
4.13 First Amendment to Warrant Agreement dated April Incorporated herein by reference to
15, 1996 by and among Company and each of the Exhibit 4.13 to the Company's
holders of warrants listed on Schedule A thereto, with Annual Report on Form 10-K for
respect to that certain Warrant Agreement dated the fiscal year ended December 31,
November 19, 1993. 1995.
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Exhibit
Number Title Method of Filing
------ ----- ----------------
4.14 First Amendment to Observation Rights Agreement Incorporated herein by reference to
dated as of April 15, 1996 between Company and Exhibit 4.14 to the Company's
certain note purchasers. Annual Report on Form 10-K for
the fiscal year ended December 31,
1995.
4.15 Third Amendment to Registration Rights Agreement Incorporated herein by reference to
dated as of April 15, 1996 by and among Company, the Exhibit 4.15 to the Company's
investors of Company listed on Schedule A thereto and Annual Report on Form 10-K for
the security holders of Company listed on Schedule B the fiscal year ended December 31,
thereto. 1995.
4.16 Warrant Agreement dated April 15, 1996 by and among Incorporated herein by reference to
Company, Wells Fargo Bank, National Association, Exhibit 4.16 to the Company's
Sumitomo Bank of California, BHF Bank Annual Report on Form 10-K for
Aktiengesellschaft and Comerica Bank-California. the fiscal year ended December 31,
1995.
4.17 Stock Purchase Agreement dated June 10, 1996 by and Incorporated herein by reference to
among the Company and the investors listed on Exhibit 4.17 to the Company's
Schedule A thereto. Quarterly Report on Form 10-Q for
the quarter ended June 30, 1996.
4.18 Fourth Amendment to Registration Rights Agreement Incorporated herein by reference to
dated June 10, 1996 by and among the Company, the Exhibit 4.18 to the Company's
investors listed on Schedule A thereto, the security Quarterly Report on Form 10-Q for
holders of the Company listed on Schedule B thereto, the quarter ended June 30, 1996.
the banks listed on Schedule C thereto and each of the parties
listed on Schedule D thereto.
4.19 Certificate of Designation of Preferences of Series B Incorporated herein by reference to
Preferred Stock of The Cerplex Group, Inc. Exhibit 3.3 filed to the Company's
Quarterly Report on Form 10-Q for
the quarter ended September 29,
1996.
4.20 Waiver and Amendment Agreement dated as of Incorporated herein by reference to
October 31, 1996 by and among the Company, The Exhibit 4.20 to the Company's
Northwestern Mutual Life Insurance Company, John Quarterly Report on Form 10-Q for
Hancock Mutual Life Insurance Company and North the quarter ended September 29,
Atlantic Smaller Companies Investment Trust PLC, 1996.
which waiver is made with reference to the Note Purchase
Agreement, as amended, and Warrant Agreement dated April 15,
1996.
4.21 Waiver and Amendment Agreement dated as of December 9, 1996 Filed herein.
by and among the Company and the Noteholders, which
waiver is made with reference to the Note Purchase
Agreement, as amended.
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Exhibit
Number Title Method of Filing
------ ----- ----------------
5.1 Opinion of Brobeck, Phleger & Harrison. Filed herein.
23.1 Consent of Independent Accountants-- KPMG Peat Filed herein.
Marwick LLP.
23.2 Consent of Brobeck, Phleger & Harrison is contained in Filed herein.
Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page II-4 of Filed herein.
this Registration Statement.
99.1 Restated 1993 Stock Option Plan, as amended (the Incorporated herein by reference to
"Restated Plan"). Exhibit 10.9 to the Company's
Quarterly Report on Form 10-Q for
the quarter ended September 29,
1996.
99.2 Form of Notice of Grant of Stock Option. Incorporated herein by reference to
Exhibit 99.2 to the Company's
Registration Statement on Form S-8
(File No. 33-84946) which was filed
with the SEC on October 11, 1994.
99.3 Form of Stock Option Agreement. Incorporated herein by reference to
Exhibit 99.3 to the Company's
Registration Statement on Form S-8
(File No. 33-84946) which was filed
with the SEC on October 11, 1994.
99.4 Addendum to Stock Option Agreement (Special Tax Incorporated herein by reference to
Elections). Exhibit 99.4 to the Company's
Registration Statement on Form S-8
(File No. 33-84946) which was filed
with the SEC on October 11, 1994.
99.5 Addendum to Stock Option Agreement (Limited Stock Incorporated herein by reference to
Appreciation Rights). Exhibit 99.5 to the Company's
Registration Statement on Form S-8
(File No. 33-84946) which was filed
with the SEC on October 11, 1994.
99.6 Addendum to Stock Option Agreement (Financial Incorporated herein by reference to
Assistance). Exhibit 99.6 to the Company's
Registration Statement on Form S-8
(File No. 33-84946) which was filed
with the SEC on October 11, 1994.
II-6.
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Exhibit
Number Title Method of Filing
------ ----- ----------------
99.7 Addendum to Stock Option Agreement (Change in Incorporated herein by reference to
Control). Exhibit 99.7 to the Company's
Registration Statement on Form S-8
(File No. 33-84946) which was filed
with the SEC on October 11, 1994.
99.8 Form of Stock Purchase Agreement. Incorporated herein by reference to
Exhibit 99.8 to the Company's
Registration Statement on Form S-8
(File No. 33-84946) which was filed
with the SEC on October 11, 1994.
99.9 Form of Notice of Grant of Automatic Stock Option Filed herein.
(Initial Grant).
99.10 Form of Notice of Grant of Automatic Stock Option Filed herein.
(Annual Grant).
99.11 Form of Automatic Stock Option Agreement. Filed 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 1933 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 (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 clauses (1)(i) and (1)(ii) shall 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 1934 Act that are incorporated by reference
into the registration statement; (2) that for the purpose of determining any
liability under the 1933 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; and (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 Restated 1993 Stock Option Plan.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into 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 1933
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnity provisions summarized in Item 6, or
otherwise, the Registrant has been informed that in the opinion of the SEC such
indemnification is against public policy as expressed in the 1933 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities
II-7.
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(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 1933 Act and will be governed by the final adjudication of such
issue.
SIGNATURES
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 Tustin, State of California, on this 20th day of
December, 1996.
THE CERPLEX GROUP, INC.
By /s/ JAMES R. ECKSTAEDT
---------------------------------------
James R. Eckstaedt
Senior Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of The Cerplex Group, Inc., a
Delaware corporation, do hereby constitute and appoint William A. Klein and
James R. Eckstaedt, and each of them, the lawful attorneys and agents, with full
power and authority to do any and all acts and things and to execute any and all
instruments which said attorneys and agents, and any one of them, determines may
be necessary or advisable or required to enable said corporation to comply with
the 1933 Act, and any rules or regulations or requirements of the SEC in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
all that said attorneys and agents, and any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ William A. Klein President, Chief Executive December 20, 1996
- --------------------------- Officer and Chairman of the
William A. Klein Board
II-8.
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SIGNATURE TITLE DATE
--------- ----- ----
/s/ Richard C. Davis President of International December 20, 1996
- --------------------------- Operations and Director
Richard C. Davis
/s/ James R. Eckstaedt Senior Vice President and Chief December 20, 1996
- --------------------------- Financial Officer (Principal
James R. Eckstaedt Accounting Officer)
/s/ Robert Finzi Director December 20, 1996
- ---------------------------
Robert Finzi
/s/ Jerome Jacobson Director December 20, 1996
- ---------------------------
Jerome Jacobson
/s/ Patrick S. Jones Director December 20, 1996
- ---------------------------
Patrick S. Jones
/s/ Myron Kunin Director December 20, 1996
- ---------------------------
Myron Kunin
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
THE CERPLEX GROUP, INC.
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EXHIBIT INDEX
Exhibit Number Exhibit
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4.21 Waiver and Amendment Agreement dated as of December 9, 1996
by and among the Company and the Noteholders.
5.1 Opinion of Brobeck, Phleger & Harrison.
23.1 Consent of Independent Accountants - KPMG Peat Marwick LLP.
23.2 Consent of Brobeck, Phleger & Harrison is contained in
Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.9 Form of Notice of Grant of Automatic Stock Option (Initial
Grant).
99.10 Form of Notice of Grant of Automatic Stock Option (Annual
Grant).
99.11 Form of Automatic Stock Option Agreement.