Registration No. 333-
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 16, 1997
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MOTORCAR PARTS & ACCESSORIES, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 11-2153962
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2727 MARICOPA STREET, TORRANCE, CALIFORNIA 90503
(Address of Principal Executive Offices) (Zip Code)
1994 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1996 STOCK OPTION PLAN
(Full title of the plans)
RICHARD MARKS, PRESIDENT
MOTORCAR PARTS & ACCESSORIES, INC.
2727 MARICOPA STREET, TORRANCE,
CALIFORNIA 90503 (Name and
address of agent for service)
310-212-7910
(Telephone number, including area code, of agent for service)
WITH A COPY TO:
GARY J. SIMON, ESQ.
PARKER CHAPIN FLATTAU & KIMPL, LLP
1211 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 704-6374
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to Be Proposed Maximum Offering Proposed Maximum Amount of
to Be Registered Registered(1) Price per Share(2) Aggregate Offering Price(2) Registration Fee(2)
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Common Stock, par 4,500 shares $ 8.125 $ 36,563 $ 11.08
value $.01 per share 3,000 shares 19.125 57,375 17.39
7,500 shares 19.5625 146,719 44.46
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Common Stock, par 15,000 shares $ 13.44 $ 201,600 $ 61.09
value $.01 per share 15,000 shares 19.5625 293,438 88.92
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TOTAL 45,000 shares $ 735,695 $ 222.94
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(1) Pursuant to Rule 416(b), there shall also be deemed covered hereby
such additional securities as may result from anti-dilution
adjustments under the 1996 Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee
on the basis of, pursuant to Rule 457(h): (i) with respect to
outstanding options to purchase 4,500 shares under the 1994
Non-Employee Director Stock Option Plan (the "1994 Plan"), the
exercise price thereof of $8.125 per share; (ii) with respect to
outstanding options to purchase 3,000 shares under the 1994 Plan, the
exercise prise thereof of $19.125 per share; (iii) with respect to
outstanding options to purchase 15,000 shares under the 1996 Stock
Option Plan (the "1996 Plan"), the exercise price thereof of $13.44
per share; and (iv) the average of the bid and asked prices per share
of the registrant's Common Stock on the Nasdaq National Market on
October 13, 1997 with respect to the remaining 7,500 and 15,000
shares subject to future grant under the 1994 Plan and the 1996 Plan,
respectively.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by the Company with the
Securities and Exchange Commission (File No. 0-23538) pursuant to Section 13(a)
of the Securities Exchange Act of 1934 (the "1934 Act") are incorporated herein
by reference: the Company's (a) Annual Report on Form 10-K for the fiscal year
ended March 31, 1997, as amended on Amendment No. 1 on Form 10-K/A filed July
29, 1997 and as amended on Amendment No. 2 on Form 10-K/A filed August 11, 1997;
(b) the Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
1997; and (c) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on March 2, 1994 under the
1934 Act, including any amendment or report filed for the purpose of updating
such description.
All documents filed subsequent to the date of this Registration
Statement pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act, prior
to the filing of a post-effective amendment which indicates that all 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 to be a part hereof from the date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modi fied or superseded for purposes
of this Registration Statement to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 722 of the New York Business Corporation Law ("NYBCL")
permits, in general, a New York corporation to indemnify any person made, or
threatened to be made, a party to an action or proceeding by reason of the fact
that he or she was a director or officer of the corporation, or served another
entity in any capacity at the request of the corporation, against any judgment,
fines, amounts paid in settlement and reasonable expenses, including attorney's
fees actually and necessarily incurred as a result of such action or proceeding,
or any appeal therein, if such person acted in good faith, for a purpose he or
she reasonably believed to be in, or, in the case of service for another entity,
not opposed to, the best interests of the corporation and, in criminal actions
or proceedings, in
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addition had no reasonable cause to believe that his or her conduct was
unlawful. Section 723 of the NYBCL permits the corporation to pay in advance of
a final disposition of such action or proceeding the expenses incurred in
defending such action or proceeding upon receipt of an undertaking by or on
behalf of the director or officer to repay such amount as, and to the extent,
required by statute. Section 721 of the NYBCL provides that indemnification and
advancement of expense provisions contained in the NYBCL shall not be deemed
exclusive of any rights to which a director or officer seeking indemnification
or advancement of expenses may be entitled, provided no indemnification may be
made on behalf of any director or officer if a judgment or other final
adjudication adverse to the director or officer establishes that his or her acts
were committed in bad faith or were the result of active and deliberate
dishonesty and were material to the cause of action so adjudicated, or that he
or she personally gained in fact a financial profit or other advantage to which
he or she was not legally entitled.
Article Seventh of the Company's Restated Certificate of
Incorporation, as amended (the "Certificate of Incorporation"), provides, in
general, that the Company may indemnify, to the fullest extent permitted by
applicable law, every person threatened to be made a party to any action, suit
or proceeding by reason of the fact that such person is or was an officer or
director or was serving at the request of the Company as a director, officer,
employee, agent or trustee of another corporation, business, partnership, joint
venture, trust, employee benefit plan, or other enterprise, against expenses,
judgments, fines and amounts paid in settlement in connection with such suit or
proceeding. Article Seventh of the Certificate of Incorporation also provides
that the Company may indemnify and advance expenses to those persons as
authorized by resolutions of a majority of the Board of Directors or
shareholders, agreement, directors' or officers' liability insurance policies,
or any other form of indemnification agreement.
In accordance with that provision of the Certificate of
Incorporation, the Company shall indemnify any officer or director (including
officers and directors serving another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity at the
Company's request) made, or threatened to be made, a party to an action or
proceeding (whether civil, criminal, administrative or investigative) by reason
of the fact that he or she was serving in any of those capacities against
judgments, fines, amounts paid in settlement and reasonable expenses (including
attorney's fees) incurred as a result of such action or proceeding.
Indemnification would not be available under Article Seventh of the Certificate
of Incorporation if a judgment or other final adjudication adverse to such
director or officer establishes that (i) his or her acts were committed in bad
faith or were the result of active and deliberate dishonesty and, in either
case, were material to the cause of action so adjudicated, or (ii) he or she
personally gained in fact a financial profit or other advantage to which he or
she was not legally entitled. Article Seventh of the Certificate of
Incorporation further stipulates that the rights granted therein are contractual
in nature.
Each officer and director of the Company is party to an
Indemnification Agreement dated September 25, 1997, which contains, among other
things, provisions whereby, subject to the terms of the Agreement, the Company
shall indemnify such officer or director if the officer or director is made, or
threatened to be made, a party to any action or proceeding, whether civil,
criminal, administrative or investigative, including one by or in the right of
the Company or by or in the right of any other entity which such officer or
director served in any capacity at the request of the
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Company by reason of the fact that such officer or director is or was an officer
or director of the Company or served another entity in any capacity, against
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorneys' fees, incurred as a result of such action or appeal therein.
Indemnification would not be available under the Agreement if a judgment or
other final adjudication adverse to such officer or director establishes that
(i) his or her acts were committed in bad faith or were the result of active and
deliberate dishonesty and, in either case, were material to the cause of action
so adjudicated, or (ii) he or she personally gained in fact a financial profit
or other advantage to which he or she was not legally entitled.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
Number
4.01 Restated Certificate of Incorporation of the
Company as filed with the Department of State of
the State of New York on January 25, 1994
(Incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form SB-2,
File No. 33-74528 (the "Registration Statement")).
4.02 By-Laws of the Company (Incorporated by reference
to Exhibit 3.2 to the Registration Statement).
4.03 1996 Stock Option Plan.
4.04 1994 Non-Employee Director Stock Option Plan
(Incorporated by reference to Exhibit 4.5 to the
Company's Annual Report on Form 10-KSB for the
fiscal year ended March 31, 1995).
5.01 Opinion and consent of Parker Chapin Flattau &
Klimpl, LLP, counsel to the Company, as to the
legality of the securities being offered.
23.01 Consent of Richard A. Eisner & Company, LLP.
23.02 Consent of Parker Chapin Flattau & Klimpl, LLP
(contained in Exhibit 5.01).
24.01 Power of Attorney (contained in the signature page
to this registration statement).
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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 of 1933;
(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. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, and 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 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
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 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.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of this chapter at the start of any delayed
offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided, that the registrant includes in the prospectus, by means of
a post-effective amendment, financial statements required pursuant to this
paragraph (a)(4) and other information necessary to ensure that
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all other information in the prospectus is at least as current as the date of
those financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements
and information are contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the Form
F-3.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
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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 the 25th day of
September, 1997.
MOTORCAR PARTS & ACCESSORIES, INC.
By: /S/ MEL MARKS
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Mel Marks
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mel Marks and Richard Marks, and each of
them, his true and lawful attorneys-in-fact and agents, each acting alone, with
full powers of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including,
without limitation, post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, 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, and hereby ratifies and confirms all that his said
attorneys-in-fact and agents, each acting alone, or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated.
SIGNATURE TITLE
/S/ MEL MARKS Chairman of the Board and September 25, 1997
- ---------------------- Chief Executive Officer
Mel Marks
/S/ RICHARD MARKS President and Chief Operating September 25, 1997
- ---------------------- Officer
Richard Marks
/S/ PETER BROMBERG Chief Financial Officer September 25, 1997
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Peter Bromberg
/S/ KAREN BRENNER Director September 25, 1997
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Karen Brenner
/S/ SELWYN JOFFE Director September 25, 1997
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Selwyn Joffe
/S/ MEL MOSKOWITZ Director September 25, 1997
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Mel Moskowitz
/S/ MURRAY ROSENZWEIG Director September 25, 1997
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Murray Rosenzweig
/S/ GARY SIMON Director September 25, 1997
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Gary Simon
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EXHIBIT INDEX
Exhibit
Number Page No.
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4.01 Restated Certificate of Incorporation of the
Company as filed with the Department of State
of the State of New York on January 25, 1994
(Incorporated by reference to Exhibit 3.1 to
the Company's Registration Statement on Form
SB-2, File No. 33-74528 (the "Registration
Statement")).
4.02 By-Laws of the Company (Incorporated by
reference to Exhibit 3.2 to the Regis tration
Statement).
4.03 1996 Stock Option Plan.
4.04 1994 Non-Employee Director Stock Option Plan
(Incorporated by reference to Exhibit 4.5 to
the Company's Annual Report on Form 10-KSB for
the fiscal year ended March 31, 1995).
5.01 Opinion and consent of Parker Chapin Flattau &
Klimpl, counsel to the Company, as to the
legality of the securities being offered.
23.01 Consent of Richard A. Eisner & Company, LLP.
23.02 Consent of Parker Chapin Flattau & Klimpl
(contained in Exhibit 5.01)
24.01 Power of Attorney (contained in the signature
page to this registration statement).
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