As filed with the Securities and Exchange Commission on February 10, 1999
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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CANNONDALE CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 06-0871823
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
16 Trowbridge Drive
Bethel, Connecticut 06801
(Address of Principal Executive Offices, Including Zip Code)
1998 STOCK OPTION PLAN
(Full Title of the Plan)
William A. Luca
Chief Financial Officer
CANNONDALE CORPORATION
16 Trowbridge Drive
Bethel, Connecticut 06801
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
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COPY TO:
John T. Capetta, Esq.
KELLEY DRYE & WARREN LLP
Two Stamford Plaza
281 Tresser Boulevard
Stamford, Connecticut 06901
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CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share(1) Price(1)
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Common Stock,
par value $.01 per share 1,000,000 shares $7.813(1) $7,813,000(1) $2,172.01
====================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and (h) under the Securities Act of 1933,
as amended. The price per share is estimated based on the average
of the high and low trading prices for Cannondale Corporation's Common
Stock on February 5, 1999, as reported by the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Cannondale Corporation (the "Registrant") are
hereby incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended June 27, 1998, as filed with the Commission on September 25, 1998;
(b) The Registrant's Form 10-Q for the quarter ended September
26, 1998, as filed with the Commission on November 10, 1998; Form 10-Q for the
quarter ended December 26, 1998, as filed with the Commission on February 9,
1999; and
(c) The description of the Registrant's common stock, $.01 par
value per share (the "Common Stock"), contained in the Registrant's Registration
Statement on Form 8-A, as filed with the Commission on September 29, 1994 under
Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
All reports and documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date hereof
and 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 such securities then remaining unsold, shall also be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof commencing on the respective dates on which such reports and
documents are filed with the Commission. Any statement incorporated by reference
herein shall also be deemed to be modified or superseded for the purposes of
this Registration Statement and any amendment or supplement hereto 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. Any statement modified or superseded shall not be
deemed, except as so modified or superseded, to constitute part of this
Registration Statement or any such amendment or supplement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") provides that a Delaware corporation may indemnify 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 (a "proceeding") (other than an action by or in the right of
the corporation) by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. A Delaware
corporation may indemnify any person under such Section in connection with a
proceeding by or in the right of the corporation to procure judgment in its
favor, as provided in the preceding sentence, against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
with the defense or settlement of such action, except that no indemnification
shall be made with respect thereto unless, and then only to the extent that, a
court of competent jurisdiction shall determine upon application that such
person is fairly and reasonably entitled to indemnity for such expenses as the
court shall deem proper. A Delaware corporation must indemnify present or former
directors and officers who are successful on the merits or otherwise in defense
of any action, suit or proceeding or in defense of any claim, issue or matter in
any proceeding, by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation, against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection therewith. A
Delaware corporation may pay for the expenses (including attorneys' fees)
incurred by an officer or director in defending a proceeding in advance of the
final disposition upon receipt of an undertaking by or on behalf of such officer
or director to repay such amount if it shall ultimately be determined that he or
she is not entitled to be indemnified by the corporation. Article XI of the
Registrant's Amended and Restated Bylaws provides for indemnification of
directors and officers to the fullest extent permitted by Section 145 of the
DGCL.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director shall not be personally liable to
the corporation or its stockholders for monetary damages for a breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for any
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) with respect to certain unlawful dividend
payments or stock redemptions or repurchases or (iv) for any transaction from
which the director derived an improper personal benefit. Article Ninth of the
Registrant's Amended and Restated Certificate of Incorporation eliminates the
liability of directors to the fullest extent permitted by Section 102(b)(7) of
the DGCL.
2
Section 145 of the DGCL permits a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
such person and incurred by such person in such capacity, or arising out of
their status as such, whether or not the corporation would have the power to
indemnify directors and officers against such liability. The Registrant has
obtained officers' and directors' liability insurance of $50 million for members
of its Board of Directors and executive officers. In addition, the Registrant
has entered into indemnification agreements with the directors and officers of
the Registrant, indemnifying each such person against losses, liabilities and
expenses arising out of any claims made against such person by reason of his or
her being a director or officer of the Registrant. Among other exclusions, the
Registrant shall not indemnify any person with respect to claims involving
receipt of a personal benefit to which the recipient is not entitled; the return
of profits from the sale of securities as contemplated by Section 16 of the
Exchange Act; or knowingly fraudulent, dishonest or willful misconduct.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
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4.1 Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1, Registration No. 33-84566).
4.2 Certificate of Amendment to Restated Certificate of
Incorporation, effective as of November 17, 1997 (incorporated
by reference to Exhibit 4.2 to the Registrant's Registration
Statement on Form S-8, Registration No. 333-40879).
4.3 Form of Amended and Restated Bylaws of the Registrant
(incorporated by reference to Exhibit 3.4 to the Registrant's
Registration Statement on Form S-1, Registration No. 33-84566).
4.4 Rights Agreement, dated December 22, 1997, between the
Registrant and BankBoston, N.A., as Rights Agent (incorporated
by reference to Exhibit 4.1 to the Registrant's Form 8-K, as
filed with the Commission on December 23, 1997).
4.5 1994 Stock Option Plan, as amended as of February 5, 1998
(incorporated by reference to Exhibit 4.2 to the Registrant's
Form 10-K for the fiscal year ended June 27, 1998).
4.6 1994 Management Stock Option Plan, as amended as of February 5,
1998 (incorporated by reference to Exhibit 4.3 to the
Registrant's Form 10-K for the fiscal year ended June 27, 1998).
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EXHIBIT NO. DESCRIPTION
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4.7 1994 Employee Stock Purchase Plan (incorporated by reference to
Exhibit 4.4 to the Registrant's Registration Statement on Form
S-8, Registration No. 333-40879).
4.8 1995 Stock Option Plan, as amended as of February 5, 1998
(incorporated by reference to Exhibit 4.4 to the Registrant's
Form 10-K for the fiscal year ended June 27, 1998).
4.9 1996 Stock Option Plan, as amended as of February 5, 1998
(incorporated by reference to Exhibit 4.5 to the Registrant's
Form 10-K for the fiscal year ended June 27, 1998).
*4.10 1998 Stock Option Plan.
*5 Opinion of Kelley Drye & Warren LLP regarding the legality of
the Common Stock being registered.
*23.1 Consent of Ernst & Young LLP.
*23.2 Consent of Kelley Drye & Warren LLP (included in their opinion
filed as Exhibit 5 hereto).
*24 Power of Attorney (incorporated by reference to the
signature page of this Registration Statement).
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* Filed herewith.
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 Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
4
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this 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 end 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 this Registration Statement or
any material change to such information in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this 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.
(b) 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 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.
(c) 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 Securities Act
of 1933, as amended, 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 of 1933, as amended, and will be governed by the final adjudication of such
issue.
5
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
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 Town of Bethel, State of Connecticut, on February 10, 1999.
CANNONDALE CORPORATION
By: /s/ William A. Luca
Name: William A. Luca
Title: Vice President, Treasurer
and Chief Financial Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Joseph S. Montgomery and William A. Luca, and each of them, as
attorneys-in-fact, with full power of substitution, to execute in the name and
on behalf of such person, individually and in each capacity stated below, and to
file any and all amendments to this Registration Statement, including any and
all post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
/s/ Joseph S. Montgomery Chairman, President, Chief February 8, 1999
Joseph S. Montgomery Executive Officer and Director
Principal Executive Officer)
/s/ William A. Luca Vice President, Treasurer, February 10, 1999
William A. Luca Chef Financial Officer and
Director (Principal
Financial Officer)
/s/ John P. Moriarty Assistant Treasurer, February 10, 1999
John P. Moriarty Assistant Secretary and
Chief Accounting Officer
(Principal Accounting
Officer)
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SIGNATURE TITLE DATE
/s/ Daniel C. Alloway Director February 10, 1999
Daniel C. Alloway
/s/ James Scott Montgomery Director February 10, 1999
James Scott Montgomery
/s/ John Sanders Director February 10, 1999
John Sanders
/s/ Michael J. Stimola Director February 10, 1999
Michael J. Stimola
/s/ Greg Griffin Director February 9, 1999
Greg Griffin
/s/ Sally Palmer Director February 10, 1999
Sally Palmer
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4.1 Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1,
Registration No. 33-84566).
4.2 Certificate of Amendment to Restated Certificate of
Incorporation, effective as of November 17, 1997
(incorporated by reference to Exhibit 4.2 to the
Registrant's Registration Statement on Form S-8,
Registration No. 333-40879).
4.3 Form of Amended and Restated Bylaws of the Registrant
(incorporated by reference to Exhibit 3.4 to the
Registrant's Registration Statement on Form S-1,
Registration No.
33-84566).
4.4 Rights Agreement, dated December 22, 1997, between
the Registrant and BankBoston, N.A., as Rights Agent
(incorporated by reference to Exhibit 4.1 to the
Registrant's Form 8-K, as filed with the Commission
on December 23, 1997).
4.5 1994 Stock Option Plan, as amended as of February 5,
1998 (incorporated by reference to Exhibit 4.2 to the
Registrant's Form 10-K for the fiscal year ended June
27, 1998).
4.6 1994 Management Stock Option Plan, as amended as
of February 5, 1998 (incorporated by reference to
Exhibit 4.3 to the Registrant's Form 10-K for the
fiscal year ended June 27, 1998).
4.7 1994 Employee Stock Purchase Plan (incorporated
by reference to Exhibit 4.4 to the Registrant's
Registration Statement on Form S-8, Registration
No. 333-40879).
4.8 1995 Stock Option Plan, as amended as of February 5,
1998 (incorporated by reference to Exhibit 4.4 to the
Registrant's Form 10-K for the fiscal year ended June
27, 1998).
4.9 1996 Stock Option Plan, as amended as of February 5,
1998 (incorporated by reference to Exhibit 4.5 to the
Registrant's Form 10-K for the fiscal year ended June
27, 1998).
*4.10 1998 Stock Option Plan.
*5 Opinion of Kelley Drye & Warren LLP regarding the
legality of the Common Stock being registered.
*23.1 Consent of Ernst & Young LLP.
EXHIBIT NO. DESCRIPTION
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*23.2 Consent of Kelley Drye & Warren LLP (included in
their opinion filed as Exhibit 5 hereto).
*24 Power of Attorney (incorporated by reference to the
signature page of this Registration Statement).
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* Filed herewith.