As filed with the Securities and Exchange Commission on January 22, 1998
Registration No. _______________
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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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ASAHI/AMERICA, INC.
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(Exact name of registrant as specified in its charter)
Massachusetts 04-2621836
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
35 Green Street, Malden, Massachusetts 02148
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(Address of Principal Executive Offices)
Asahi/America, Inc. 401(k) Plan
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(Full title of plan)
Leslie B. Lewis, President
Asahi/America, Inc.
35 Green Street
Malden, Massachusetts 02148
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(Name and address, including zip code, of agent for service)
(781) 321-5409
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(Telephone number, including area code of agent for service)
Copies to:
Marianne Gilleran, Esq.
Gadsby & Hannah LLP
225 Franklin Street
Boston, Massachusetts 02110
(617) 345-7000
CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
Securities to be Amount to be Maximum Maximum Amount of
Registered(1) Registered(2) Offering Price Aggregate Registration Fee
Per Share(3) Offering
Price(3)
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Common Stock, 100,000 $6.35 $635,000 $187.33
no par value per
share
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) The amount of shares registered hereunder is based upon an estimate of the
number of shares of Common Stock to be issued pursuant to the employee
benefit plan described herein. In addition, pursuant to Rule 416, there are
also being registered such additional shares of Common Stock as may become
issuable pursuant to stock splits, stock dividends or similar transactions.
(3) Estimated solely for the purpose of computing the registration fee,
pursuant to Rule 457(h), on the basis of the average of the high and low
prices of the Common Stock, approximately $6.56 and $6.13, respectively, as
reported on the Nasdaq National Market on January 16, 1998.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 are not required to be filed with the Securities and Exchange Commission
(the "Commission") as part of this registration statement on Form S-8. Such
documents and the documents incorporated by reference in this registration
statement on Form S-8 pursuant to Item 3 of Part II hereof, as described below,
taken together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this
registration statement:
(a) The Annual Report on Form 10-K for the fiscal year ended December
31, 1996 ("Fiscal 1996") filed by Asahi/America, Inc. (the "Company") pursuant
to Section 13(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(b) All other reports filed by the Company and the Company's 401(k) Plan
(the "Plan") pursuant to Section 13(a) or 15(d) of the Exchange Act since the
end of Fiscal 1996; and
(c) The description of the Company's securities in the Company's Form
8-A Registration Statement filed with the Commission and dated April 25, 1996,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company or the Plan pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered in this
registration statement 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Company pursuant to the following provisions, or otherwise, the Company 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 and
is, therefore, unenforceable.
Section 67 of Chapter 156B of the Massachusetts Business Corporation Law
provides that a corporation may indemnify its directors and officers to the
extent specified in or authorized by (i) the articles of organization; (ii) a
by-law adopted by the stockholders; or (iii) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election of directors.
In all instances, the extent to which a corporation provides indemnification to
its directors and officers under Section 67 is optional.
The Restated Articles of Organization and By-Laws of the Company permit
the Company to indemnify an officer or director in respect of claims made by
reason of his status with the Company including, all liabilities and expenses
imposed upon or incurred by such person in connection with or arising out of,
the defense or disposition of any action, suit or other proceeding. Expenses
incurred in defense of such action may be paid by the Company in advance of
final disposition upon receipt of an undertaking to repay if there is an
ultimate determination that he is not entitled to be indemnified.
The Company's Restated Articles of Organization eliminate the personal
liability of the Company's directors for monetary damages for the breach of
their fiduciary duty as directors to the Company and its stockholders,
notwithstanding any provision of law imposing such liability. The Company's
Restated Articles of Organization, however, do not eliminate liability of the
Company's directors for breach of the director's duty of loyalty to the Company
or its stockholders, acts or omissions not in good faith or involving
intentional misconduct or a knowing violation of law and actions leading to
improper personal benefit to the director, or under Section 61 or 62 of the
Massachusetts Business Corporation Law.
The Company's By-Laws, as amended, state that the Company shall provide
no indemnification with respect to any matter as to which any such director,
officer or other person shall be finally adjudicated in such action, suit or
proceeding not to have acted in good faith and the reasonable belief that his
action was in the best interest of the Company or, to the extent such a matter
relates to service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan.
The Company shall provide no indemnification with respect to any matter settled
or compromised, pursuant to a consent decree or otherwise, unless such
settlement or compromise shall have been approved as in the best interest of the
Company or, to the extent such matter relates to service with respect to any
employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan, after notice that indemnification
is involved by (i) a disinterested majority of the board of directors or (ii)
the holders of a majority of the outstanding stock entitled to elect directors,
voting as a single class, exclusive of any stock owned by any interested
director, officer or other person.
The Company has purchased directors and officers liability insurance
covering liabilities incurred by its officers and directors in connection with
the performance of their duties in the amount of $3,000,000.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this registration statement:
Exhibit
Number Description
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4.1 Asahi/America, Inc. 401(k) Plan, as amended.
4.2 Restated Articles of Organization of the Company (previously filed as
Exhibit 3.1.1 to the Company's Registration Statement on Form S-1
(File No. 333-2314) and hereby incorporated by reference).
4.3 Bylaws of the Company, as amended (previously filed as Exhibit 3.2.1
to the Company's Registration Statement on Form S-1 (File No.
333-2314) and hereby incorporated by reference).
23 Consent of Arthur Andersen LLP.
24 Power of Attorney.
The registrant has submitted or will submit the Plan and any amendment
thereto to the Internal Revenue Service ("IRS") in a timely manner, and has made
or will make all changes required by the IRS in order to qualify the Plan.
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 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 end of the estimated
maximum offering range may be reflected in the form of a prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if 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; 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 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 Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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 Malden, Commonwealth of Massachusetts, on
January 22, 1998.
ASAHI/AMERICA, INC.
By /s/ Leslie B. Lewis
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Leslie B. Lewis, President
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 date indicated.
Signature Title Date
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/s/ Leslie B. Lewis President and Director January 22, 1998
- ----------------------------- (Principal Executive Officer)
Leslie B. Lewis
Director
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Kazuyuki Sato
Director
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Masashi Uesugi
/s/ Nannette S. Lewis Director January 22, 1998
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Nannette S. Lewis
/s/ Jeffrey C. Bloomberg Director January 22, 1998
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Jeffrey C. Bloomberg
/s/ Samuel J. Gerson Director January 22, 1998
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Samuel J. Gerson
/s/ Kozo Terada Vice President and Treasurer January 22, 1998
- ----------------------------- (Principal Financial and
Kozo Terada Accounting Officer)
SIGNATURES (continued)
Pursuant to the requirements of the Securities Act of 1933, the persons
who administer the employee benefit plan have duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Malden, Commonwealth of Massachusetts, on
January 22, 1998.
ASAHI/AMERICA, INC.
401(k) PLAN
/s/ Leslie B. Lewis
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By: Leslie B. Lewis, Plan Administrator
Duly Authorized
/s/ John E. Lawrence
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By: John E. Lawrence, Plan Administrator
Duly Authorized
/s/ Kozo Terada
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By: Kozo Terada, Plan Administrator
Duly Authorized
EXHIBIT INDEX
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Exhibit
Number Description
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4.1 Asahi/America, Inc. 401(k) Plan, as amended.
4.2 Restated Articles of Organization of the Company (previously filed as
Exhibit 3.1.1 to the Company's Registration Statement on Form S-1
(File No. 333-2314) and hereby incorporated by reference).
4.3 Bylaws of the Company, as amended (previously filed as Exhibit 3.2.1
to the Company's Registration Statement on Form S-1 (File No.
333-2314) and hereby incorporated by reference).
23 Consent of Arthur Andersen LLP.
24 Power of Attorney.