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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
1994 EMPLOYEE STOCK PURCHASE 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
================================================================================================================================
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
- --------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per
share............................. 348,750 $20.625(1) $7,192,969(1) $2,179.69
================================================================================================================================
(1) Estimated solely for the purpose of calculating the registration
fee, and computed in accordance with Rule 457(h). The price per share is
estimated based on the average of the high and low trading prices for Cannondale
Corporation's Common Stock on November 18, 1997 as reported on the Nasdaq
National Market.
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CANNONDALE CORPORATION
CROSS-REFERENCE SHEET FOR PART II
ITEM IN FORM S-8, PART II PAGE NUMBER IN REGISTRATION STATEMENT
- ------------------------- -------------------------------------
3. Incorporation of Documents by Reference ....................................................................3
4. Description of Securities......................................................................Not applicable
5. Interests of Named Experts and Counsel.........................................................Not applicable
6. Indemnification of Directors and Officers...................................................................3
7. Exemption from Registration Claimed............................................................Not applicable
8. Exhibits....................................................................................................5
9. Undertakings................................................................................................5
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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
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 -- Certificate of Amendment to Restated Certificate of
Incorporation, effective as of November 17, 1997.
4.3 -- 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 1994 Employee Stock Purchase Plan.
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 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 securities being registered which remain unsold
at the termination of the offering.
The undersigned registrant hereby undertakes that, for the 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 14, 1997.
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
- --------- ----- ----
/s/ JOSEPH S. MONTGOMERY Chairman, President, Chief Executive November 14, 1997
- --------------------------------- Officer and Director (Principal
Joseph S. Montgomery Executive Officer)
/s/ WILLIAM A. LUCA Vice President of Finance, Treasurer, November 14, 1997
- ------------------------------------ Chief Financial Officer and Director
William A. Luca (Principal Financial Officer)
/s/ RICHARD J. RESCH Vice President of Technology November 14, 1997
- ------------------------------------- Development and Director
Richard J. Resch
/s/ JOHN MORIARTY Assistant Treasurer, Director of Accounting November 14, 1997
- ----------------------------------- (Principal Accounting Officer)
John Moriarty
/s/ JAMES SCOTT MONTGOMERY Director November 14, 1997
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James Scott Montgomery
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Director
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Tarek Abdel-Meguid
Director
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Michael Carter
/s/ Michael J. Stimola Director November 18, 1997
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Michael J. Stimola
Director
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John H.T. Wilson
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT
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 -- Certificate of Amendment to Restated Certificate of
Incorporation, effective as of November 17, 1997.
4.3 -- 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 1994 Employee Stock Purchase Plan.
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).