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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 (I.R.S. Employer
of incorporation or organization) Identification Number)
9 Brookside Place,
Georgetown, Connecticut 06829-0122
(Address of principal executive offices) (Zip code)
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CANNONDALE CORPORATION
1996 STOCK OPTION PLAN
(Full Title of the Plan)
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COPIES TO:
WILLIAM A. LUCA JOHN SANDERS, ESQ.
Vice President of Finance LEVETT, ROCKWOOD & SANDERS
CANNONDALE CORPORATION PROFESSIONAL CORPORATION
9 Brookside Place 33 Riverside Avenue
Georgetown, Connecticut 06829-0122 Westport, Connecticut 06880
(203) 544-9800
(Name, address and telephone
number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Offering Registration
to be Registered Registered Per Share Price Fee
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Common Stock, par value $.01 per
share . . . . . . . . . . . . . . . . 750,000 $18.625(1) $13,968,750(1) $4,816.80
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(1) Estimated solely for the purpose of calculating the registration fee,
and computed in accordance with Rule 457(h) on the basis of the maximum option
exercise price of the Common Stock pursuant to outstanding options.
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CANNONDALE CORPORATION
CROSS-REFERENCE SHEET FOR PART II
ITEM IN FORM S-8, PART II PAGE NUMBER IN REGISTRATION STATEMENT
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3. Incorporation of Documents by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4. Description of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
5. Interests of Named Experts and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
6. Indemnification of Directors and Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
7. Exemption from Registration Claimed . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
8. Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
9. Undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
There are incorporated by reference and made a part hereof:
(a) the annual report of Cannondale Corporation (the "Company" or
"registrant") filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act") that contains audited financial statements for the
Company's latest fiscal year for which such statements have
been filed;
(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 annual report referred to in (a) above; and
(c) the description of the authorized capital stock of the Company
contained in the Company's registration statement filed under
Section 12 of the Exchange Act, including any amendment or
report filed for the purpose of updating the description.
All reports and documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange 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 filing such documents. Any statement incorporated by
reference herein shall 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.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Company's Bylaws provide that the officers, directors, employees and
agents of the registrant shall be reimbursed and indemnified by the registrant
to the maximum extent permitted by Section 145 of the Delaware General
Corporation Law.
Section 145(a) provides that a corporation may indemnify any person who
was, is, or is threatened to be made, a party to any threatened, pending or
completed proceeding (other than an action by or brought derivatively on behalf
of the corporation) by reason of his being a director, officer, employee
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or agent of the corporation, against judgments, fines, amounts paid in
settlement and expenses (including attorneys' fees) reasonably and actually
incurred by him in connection with such proceeding. The corporation may
indemnify such person (1) if it is concluded (as provided in subsection (d) of
Section 145) that such person acted in good faith and in a manner he reasonably
believed to be in the best interests of the corporation and, with respect to a
criminal proceeding, that he had no reasonable cause to believe his conduct was
unlawful, or (2) to the extent such person was successful in the defense of the
proceeding.
Section 145(b) provides that a corporation may indemnify any person who
was, is, or is threatened to be made, a party to any threatened, pending or
completed proceeding brought either by the corporation or derivatively on
behalf of the corporation, by reason of his being a director, officer, employee
or agent of the corporation, against expenses reasonably and actually incurred
by him in connection with such proceeding. The corporation may indemnify such
person (1) to the extent such person was successful in the defense of the
proceeding, or (2) if it is concluded (as provided in subsection (d) of Section
145) that he acted in good faith, except that no indemnification shall be made
with respect to any matter as to which such person shall have been adjudged
liable to the corporation unless and only to the extent that the court shall
determine upon application that, in view of all the circumstances, such person
is fairly and reasonably entitled to indemnity and then for such amount as the
court deems proper.
Subsection (d) of Section 145 allows a conclusion as to indemnification to
be made (1) by the majority of the directors who are not parties to the
proceeding, (2) by an independent legal counsel, or (3) by the stockholders.
The Company has entered into indemnification agreements with the directors
and officers of the Company, indemnifying each such person against losses,
liabilities and expenses arising out of any claims made against such person by
reason of his being a director or officer of the Company. Among other
exclusions, the Company 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.
Limitation on Liability of Directors. Article Ninth of the Company's
Amended and Restated Certificate of Incorporation provides that, subject to
certain exceptions, no director shall be personally liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty.
Notwithstanding the foregoing, a director shall be liable if the breach (i) is
a breach of the director's duty of loyalty to the Company or its stockholders,
(ii) involves a knowing violation of law or intentional misconduct, (iii) shows
a lack of good faith, (iv) enables the director to receive an improper personal
benefit, or (v) creates a liability under Section 174 of the Delaware General
Corporation Law (which creates liability for repayment to a corporation of
certain unlawful dividend payments or unlawful purchases or redemptions).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
DESCRIPTION
EXHIBIT
NUMBER EXHIBIT
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4.1 -- Form of Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1, Registration
No. 33-84566).
4.2 -- Form of Amended and Restated Bylaws of the Company
(incorporated by reference to Exhibit 3.3 to the Company's
Registration Statement on Form S-1, Registration
No. 33-84566).
4.4 -- Cannondale Corporation 1996 Stock Option Plan, to which
are appended form of Non-Qualified Stock Option Agreement
and form of Stockholders Agreement.
5 -- Opinion of Levett, Rockwood & Sanders Professional
Corporation concerning the Common Stock.
23.1 -- Consent of Ernst & Young LLP.
23.2 -- Consent of Levett, Rockwood & Sanders Professional
Corporation (included in its opinion filed as
Exhibit 5 hereto).
24 -- Power-of-Attorney (incorporated by reference to the
signature page of the Registration Statement).
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;
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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 (a)(1)(i) and (a)(1)(ii) 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 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.
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.
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 of
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 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 Redding, State of Connecticut, on November 25,
1996.
CANNONDALE CORPORATION
By: /s/ WILLIAM A. LUCA
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William A. Luca
Vice President of Finance, Treasurer
and Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes Joseph S.
Montgomery and William A. Luca and either of them, to file one or more
amendments (including post-effective amendments) to this Registration
Statement, which amendments may make such changes in this Registration
Statement as any of them deems appropriate, and each such person hereby
appoints Joseph S. Montgomery and William A. Luca, and either of them, as
attorney-in-fact to execute in the name and on behalf of each such person
individually, and in each capacity stated below, any such amendments to this
Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ JOSEPH S. MONTGOMERY Chairman, President, Chief Executive November 25, 1996
- --------------------------------- Officer and Director (Principal
Joseph S. Montgomery Executive Officer)
/s/ WILLIAM A. LUCA Vice President of Finance, Treasurer, November 25, 1996
- --------------------------------- Chief Financial Officer and Director
William A. Luca (Principal Financial Officer)
/s/ RICHARD J. RESCH Vice President of Technology November 25, 1996
- --------------------------------- Development and Director
Richard J. Resch
/s/ JAMES SCOTT MONTGOMERY Vice President of Marketing November 25, 1996
- --------------------------------- and Director
James Scott Montgomery
/s/ JOHN MORIARTY Assistant Treasurer, Director of Accounting November 25, 1996
- --------------------------------- (Principal Accounting Officer)
John Moriarty
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Director
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Tarek Abdel-Meguid
Director
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Michael Carter
Director
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Michael J. Stimola
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT
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4.1 -- Form of Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1, Registration
No. 33-84566).
4.2 -- Form of Amended and Restated Bylaws of the Company
(incorporated by reference to Exhibit 3.3 to the Company's
Registration Statement on Form S-1, Registration
No. 33-84566).
4.4 -- Cannondale Corporation 1996 Stock Option Plan, to which
are appended form of Non-Qualified Stock Option Agreement
and form of Stockholders Agreement.
5 -- Opinion of Levett, Rockwood & Sanders Professional
Corporation concerning the Common Stock.
23.1 -- Consent of Ernst & Young LLP.
23.2 -- Consent of Levett, Rockwood & Sanders Professional
Corporation (included in its opinion filed as
Exhibit 5 hereto).
24 -- Power-of-Attorney (incorporated by reference to the
signature page of the Registration Statement).