As filed with the Securities and Exchange Commission on August 31, 1998.
Registration No. 333-______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement Under The Securities Act of 1933
BOSTON ACOUSTICS, INC.
(Exact name of registrant as specified in its charter)
Massachusetts 04-2662473
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
300 Jubilee Drive
Peabody, Massachusetts 01960
(Address, including zip code, of principal executive offices)
1996 Stock Plan
1997 Stock Plan
(Full title of the plan)
Andrew G. Kotsatos
Chairman, Chief Executive Officer and Treasurer
Boston Acoustics, Inc.
300 Jubilee Drive
Peabody, Massachusetts 01960
(Name and address of agent for service)
(978) 538-5000
(Telephone number, including area code, of agent for service)
copies to:
Joseph D.S. Hinkley, Esq.
Peabody & Arnold LLP
50 Rowes Wharf
Boston, MA 02110
CALCULATION OF REGISTRATION FEE
Proposed
Proposed maximum Amount
Title of Amount maximum aggregate of
securities to be offering price offering registration
to be registered registered per share price fee
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Common Stock, 738,000(1) $22.69(2) $16,745,220(2) $4,940(2)
par value $.01
per share (issuable upon
exercise of options)
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(1) The 738,000 shares shown are shares issued or issuable upon the exercise of
options issued or issuable pursuant to the Company's 1996 Stock Plan and
1997 Stock Plan (collectively, the "Plans"). Pursuant to Rule 416(a) under
the Securities Act of 1933, as amended, there are also registered an
undetermined number of additional shares which may be issued if the
antidilution provisions of the Plans become operative.
(2) The total number of shares of Common Stock to be registered includes the
following: (i) under the 1996 Stock Plan 288,000 shares of the Company's
Common Stock issuable upon the exercise of options at exercise prices
ranging from $11.67 to $18.08; and (ii) under the 1997 Stock Plan 149,250
shares of the Company's Common Stock issuable upon the exercise of options
at exercise prices ranging from $17.33 to $19.89. An additional 300,750
shares are to be offered under the 1997 Stock Plan at prices not presently
determinable. Pursuant to Rule 457(c) and (h), the offering price for these
additional shares is estimated solely for the purpose of determining the
registration fee and is based on the $22.69 average of the high and low
sale prices of the Common Stock as reported by the Nasdaq National Market
on August 28, 1998.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Boston Acoustics, Inc. (the "Company")
with the Securities and Exchange Commission are incorporated in this
Registration Statement by reference:
(a) Annual Report on Form 10-K for the fiscal year ended March 28, 1998.
(b) Quarterly Report on Form 10-Q for fiscal quarter ended June 27, 1998.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, as amended.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 herein and to be part hereof from the
date of filing of such documents.
Item 5. Interests of Named Experts and Counsel.
The legality of the shares of Common Stock of the Company offered hereby
(the "Shares") will be passed upon for the Company by Peabody & Arnold LLP, 50
Rowes Wharf, Boston, Massachusetts 02110. Joseph D.S. Hinkley, a partner in
Peabody & Arnold LLP, is the Clerk of the Company.
Item 6. Indemnification of Directors and Officers.
With respect to indemnification, Section 67 of Chapter 156B of the
Massachusetts General Laws provides:
"Indemnification of directors, officers, employees, and other agents
of a corporation, and persons who serve at its request as directors,
officers, employees or other agents of another organization, or who serve
at its request in any capacity with respect to any employee benefit plan,
may be provided by it to whatever extent shall be specified in or
authorized by (i) the articles of organization or (ii) a by-law adopted by
the stockholders or (iii) a vote adopted by the holders of a majority of
shares of stock entitled to vote on the election of directors. Except as
the articles of organization or by-laws otherwise require, indemnification
of any persons referred to in the preceding sentence who are not directors
of the corporation may be provided by it to the extent authorized by the
directors. Such indemnification may include payment by the corporation of
expenses incurred in defending a civil or criminal action or proceeding in
advance of the final disposition of such action or proceeding, upon receipt
of any undertaking by the person indemnified to repay such payment if he
shall be adjudicated to be not entitled to indemnification under this
section which undertaking may be accepted without reference to the
financial ability of such person to make repayment. Any such
indemnification may be provided although the person to be indemnified is no
longer an officer, director, employee or agent of the corporation or of
such other organization or no longer serves with respect to any such
employee benefit plan.
No indemnification shall be provided for any person with respect to
any matter as to which he shall have been adjudicated in any proceeding not
to have acted in good faith in the reasonable belief that his action was in
the best interest of the corporation or to the extent that 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.
The absence of any express provision for indemnification shall not
limit any right of indemnification existing independently of this section.
A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee, or other
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or other agent of another
organization or with respect to any employee benefit plan, against any
liability incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to
indemnify him against such liability.
Article 6A of the Company's Restated Articles of Organization provides as
follows:
Limitation of Liability of Directors. No director of this Corporation
shall be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director notwithstanding
any provision of law imposing such liability; provided, however, that this
Article shall not eliminate or limit any liability of a director (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section
61 or 62 of the Massachusetts Business Corporation Law, or (iv) with
respect to any transaction from which the director derived improper
personal benefit.
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The provisions of this Article shall not eliminate or limit the
liability of a director of this Corporation for any act or omission
occurring prior to the date on which this Article became effective. No
amendment or repeal of this Article shall adversely affect the rights and
protection afforded to a director of this Corporation under this Article
for acts or omissions occurring while this Article is in effect.
Item 8. Exhibits.
Exhibit No. Exhibit
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++4.1. 1996 Stock Plan.
^4.2. 1997 Stock Plan.
*4.3. Form of Incentive Stock Option Agreement.
*4.4. Form of Non-Statutory Stock Option Agreement.
*5.1. Opinion of Peabody & Arnold LLP regarding legality.
*23.1. Consent of Arthur Andersen LLP.
*23.2. Consent of Peabody & Arnold LLP (included in its opinion filed as Exhibit 5.1).
*24.1. Power of Attorney (contained in signature page).
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*Filed herewith.
++Previously filed as an Exhibit to the Company's Annual Report on Form 10-K for
the fiscal year ended March 29, 1997.
^Previously filed as an Exhibit to the Company's Annual Report on Form 10-K for
the fiscal year ended March 28, 1998.
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 post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this 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) of the section
do not apply if this 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
section 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 this 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 this
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.
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(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.
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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 Peabody, Commonwealth of Massachusetts on this 31st
day of August, 1998.
BOSTON ACOUSTICS, INC.
By: /s/ Andrew Kotsatos
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Andrew G. Kotsatos, Chairman,
Chief Executive Officer and Treasurer
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POWER OF ATTORNEY
The undersigned directors of Boston Acoustics, Inc. hereby severally
constitute and appoint Andrew G. Kotsatos our true and lawful attorney-in-fact
and agent with full power of substitution, to execute in our name and behalf in
the capacities indicated below any and all amendments to this Registration
Statement to be filed with the Securities and Exchange Commission and hereby
ratify and confirm all that such attorney-in-fact and agent shall 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 below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ Andrew Kotsatos Director, Chief Executive Officer and August 31, 1998
- ------------------- Treasurer ------------------
Andrew G. Kotsatos
/s/ Fred Faulkner Director, President and Chief Operating August 31, 1998
- ----------------- Officer ------------------
Fred E. Faulkner, Jr.
/s/ Debra Ricker-Rosato Vice President, Finance (Principal Financial August 31, 1998
- ----------------------- and Accounting Officer) ------------------
Debra A. Ricker-Rosato
/s/ George J. Markos Director August 31, 1998
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George J. Markos
/s/ Lisa Mooney Director August 31, 1998
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Lisa M. Mooney
/s/ Gerald Walle Director August 31, 1998
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Gerald Walle