Registration No. 333-
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 24, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LABTEC INC.
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(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-3116697
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1499 S.E. TECH CENTER PLACE, SUITE 350
VANCOUVER, WASHINGTON 98683
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(Address of Principal Executive Offices) (Zip Code)
1997 AMENDED AND RESTATED EMPLOYEE STOCK OPTION PLAN
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(Full title of the plan)
ROBERT G. WICK, PRESIDENT
LABTEC INC.
1499 S.E. TECH CENTER PLACE, SUITE 350
VANCOUVER, WA 98683
(Name and address of agent for service)
360-896-2000
(Telephone number, including area code, of agent for service)
WITH A COPY TO: MARK S. HIRSCH, ESQ.
PARKER CHAPIN FLATTAU & KLIMPL, LLP
1211 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 704-6105
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================
Proposed Maximum Proposed Maximum Amount Of
Title Of Securities Amount To Be Offering Price Per Aggregate Offering Registration
To Be Registered Registered(1) Share(2) Price(2) Fee(2)
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<S> <C> <C> <C> <C>
Common Stock, par 182,830 shares $1.524 $278,633 $ 77.46
value $.01 per share 92,477 shares $4.572 $422,805 $117.54
133,000 shares $5.375 $714,875 $198.74
165,000 shares $5.000 $825,000 $229.35
134,650 shares $3.875 $521,769 $145.05
176,994 shares $3.875 $685,852 $190.67
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TOTAL 884,951 shares $958.81
===============================================================================================
</TABLE>
(1) Pursuant to Rule 416(b), there shall also be deemed covered hereby such
additional securities as may result from anti-dilution adjustments
under the 1997 Amended and Restated Employee Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee on
the basis of, pursuant to Rule 457(h): (i) with respect to outstanding
options to purchase 182,830 shares under the 1997 Amended and Restated
Employee Stock Option Plan (the "1997 Plan"), the exercise price
thereof of $1.524 per share; (ii) with respect to outstanding options
to purchase 92,477 shares under the 1997 Plan, the exercise price
thereof of $4.572 per share; (iii) with respect to outstanding options
to purchase 133,000 shares under the 1997 Plan, the exercise price
thereof of $5.375 per share; (iv) with respect to outstanding options
to purchase 165,000 shares under the 1997 Plan, the exercise price
thereof of $5.00 per share; (v) with respect to outstanding options to
purchase 134,650 shares under the 1997 Plan, the exercise price thereof
of $3.875 per share; and (vi) the average of the bid and asked prices
per share of the registrant's Common Stock on the Nasdaq National
Market on November 22, 1999 with respect to the remaining 176,994
shares subject to future grant under the 1997 Plan.
<PAGE>
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by the Company with the
Securities and Exchange Commission (File No. 0-27302) pursuant to Section 13(a)
of the Securities Exchange Act of 1934, as amended (the "1934 Act"), are
incorporated herein by reference: the Company's (a) Annual Report on Form 10-K
for the fiscal year ended March 31, 1999, as amended on Amendment No. 1 on Form
10-K/A filed July 29, 1999; (b) the Quarterly Reports on Form 10-Q for the
fiscal quarters ended June 30, 1999 and September 30, 1999; (c) the Company's
Current Reports on Form 8-K dated August 20, 1999 (date of earliest event
reported) and November 1, 1999 (date of earliest event reported) and the
Company's Current Report on Form 8-K/A dated August 20, 1999 (date of earliest
event reported); and (c) the description of the Company's Common Stock contained
in the Company's Registration Statement on Form 8-A filed on November 29, 1995
under the 1934 Act, including any amendment or report filed for the purpose of
updating such description.
All documents filed subsequent to the date of this Registration
Statement pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 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 the filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded for purposes of
this Registration Statement 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 67 of chapter 156B of the Massachusetts Business Corporation
Law grants the Registrant the power to indemnify any director, officer, employee
or agent to whatever extent permitted by the Registrant's Restated Articles of
Organization, as amended, Amended and Restated By-laws or a vote adopted by the
holders of a majority of the shares of stock entitled to vote on the election of
directors, unless the proposed indemnitee has been adjudicated in any proceeding
not to have acted in good faith in the reasonable belief that his action was in
the best interests of the corporation or, to the extent that the matter for
which indemnification is sought relates to service with respect to an employee
benefit plan, in the best interests of the participants or beneficiaries of such
employee benefit plan. Such indemnification may include payment by the
Registrant 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 an undertaking by the person
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<PAGE>
indemnified to repay such payment if he shall be adjudicated to be not entitled
to indemnification under the statute.
Article VI of the Registrant's By-laws provides that the Registrant
shall, to the extent legally permissible, indemnify each person who may serve or
who has served at any time as a director or officer of the corporation or of any
of its subsidiaries, or who at the request of the corporation may serve or at
any time has served as a director, officer or trustee of, or in a similar
capacity with, another organization or an employee benefit plan, against all
expenses and liabilities (including counsel fees, judgments, fines, excise
taxes, penalties and amounts payable in settlements) reasonably incurred by or
imposed upon such person in connection with any threatened, pending or completed
action, suit or other proceeding, whether civil, criminal, administrative or
investigative, in which he may become involved by reason of his serving or
having served in such capacity (other than a proceeding voluntarily initiated by
such person unless he is successful on the merits, the proceeding was authorized
by the corporation or the proceeding seeks a declaratory judgment regarding his
own conduct); provided that no indemnification shall be provided for any such
person with respect to any matter as to which he shall have been finally
adjudicated in any proceeding not to have acted in good faith in the reasonable
belief that his action was in the best interests of the corporation 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; and provided, further, that as to any matter disposed of by a
compromise payment by such person, pursuant to a consent decree or otherwise,
the payment and indemnification thereof have been approved by the corporation,
which approval shall not unreasonably be withheld, or by a court of competent
jurisdiction. Such indemnification shall 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
an undertaking by the person indemnified to repay such payment if he shall be
adjudicated to be not entitled to indemnification under Article VI, which
undertaking may be accepted without regard to the financial ability of such
person to make repayment.
A person entitled to indemnification under Article VI whose duties
include service or responsibilities as a fiduciary with respect to a subsidiary
or other organization shall be deemed to have acted in good faith in the
reasonable belief that his action was in the best interests of the corporation
if he acted in good faith in the reasonable belief that his action was in the
best interests of such subsidiary or organization or of the participants or
beneficiaries of, or other persons with interests in, such subsidiary or
organization to whom he had a fiduciary duty.
The indemnification provided for in Article VI is a contract right
inuring to the benefit of the directors, officers and others entitled to
indemnification. In addition, the indemnification is expressly not exclusive of
any other rights to which such director, officer or other person may be entitled
by contract or otherwise under law, and inures to the benefit of the heirs,
executors and administrators of such a person.
Section 13(b) (1 1/2) of chapter 156B of the Massachusetts Business
Corporation Law provides that a corporation may, in its articles of
organization, eliminate or limit a director's personal liability to the
corporation or its stockholders for monetary damages for breaches of fiduciary
duty, except in circumstances involving (i) a breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) unauthorized distributions and loans to insiders and (iv)
transactions from which the director derived an improper personal benefit.
Section VI.C.5. of the Registrant's Restated Articles of Organization, as
amended, provides that no director shall be
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<PAGE>
personally liable to the corporation or its stockholders for monetary damages
for any breach of fiduciary duty as a director, except to the extent that the
elimination or limitation of liability is not permitted under the Massachusetts
Business Corporation Law as in effect when such liability is determined.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
Number
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4.1 Restated Articles of Organization of the Company
(Incorporated by reference to Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the fiscal year ended March
31, 1999 (the "1999 Form 10-K")).
4.2 Articles of Amendment to the Restated Articles of
Organization of the Company (Incorporated by reference to
Exhibit 3.2 to the 1999 Form 10-K).
4.3 Articles of Amendment to the Restated Articles of
Organization, as amended, of the Company (Incorporated by
reference to Exhibit 3.3 to the Company's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1999).
5.1 Opinion and consent of Parker Chapin Flattau & Klimpl, LLP,
counsel to the Company, as to the legality of the securities
being offered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Parker Chapin Flattau & Klimpl, LLP (Contained in
Exhibit 5.1).
24.1 Power of Attorney (Contained in the signature page to this
registration statement).
99.1 Amended and Restated 1997 Employee Stock Option Plan
(Incorporated by reference to Exhibit 10.1 to the 1999 Form
10-K).
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<PAGE>
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. 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 the registration statement or
any material change to such information 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.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of this chapter at the start of any delayed
offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided, that the registrant includes in the prospectus, by means of
a post-effective amendment, financial statements required pursuant to this
paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements
and information are 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 the Form
F-3.
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 (and, where applicable, each
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<PAGE>
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 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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<PAGE>
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 Vancouver, State of Washington, on the 22nd day of
November, 1999.
LABTEC INC.
By: /s/ Robert G. Wick
________________________________________
Robert G. Wick
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert G. Wick, Marc J. Leder and Rodger
R. Krouse, and each of them, his true and lawful attorneys-in-fact and agents,
each acting alone, with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all
amendments (including, without limitation, post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, and hereby ratifies and
confirms all that his said attorneys-in-fact and agents, each acting alone, or
his substitute or substitutes, may 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 by the following persons in the
capacities indicated.
<TABLE>
<CAPTION>
Signature Title
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<S> <C> <C>
/s/ Robert G. Wick Chief Executive Officer, President and November 22, 1999
- ---------------------------------- Director
Robert G. Wick
/s/ Marc J. Leder Co-Chairman, Senior Vice President, November 22, 1999
- ---------------------------------- Finance, Chief Financial Officer,
Marc J. Leder Treasurer and Director
/s/ Rodger R. Krouse Co-Chairman, Clerk and Director November 22, 1999
- ----------------------------------
Rodger R. Krouse
/s/ Bradley A. Krouse Director November 22, 1999
- ----------------------------------
Bradley A. Krouse
/s/ Joseph Pretlow
- ---------------------------------- Director November 19, 1999
Joseph Pretlow
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ George R. Rea Director November 17, 1999
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George R. Rea
/s/ Geoffrey Rehnert Director November 22, 1999
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Geoffrey Rehnert
/s/ Julian Rubinstein Director November 22, 1999
- ----------------------------------
Julian Rubinstein
- ---------------------------------- Director November __, 1999
Patrick J. Sullivan
/s/ Marc Wolpow Director November 22, 1999
- ----------------------------------
Marc Wolpow
</TABLE>
<PAGE>
EXHIBIT INDEX
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<TABLE>
<CAPTION>
Exhibit
Number Page No.
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<S> <C> <C>
4.1 Restated Articles of Organization of the Company (Incorporated by
reference to Exhibit 3.1 to the Company's Annual Report on Form
10-K for the fiscal year ended March 31, 1999 (the "1999 Form
10-K")).
4.2 Articles of Amendment to the Restated Articles of Organization of
the Company (Incorporated by reference to Exhibit 3.2 to the 1999
Form 10-K).
4.3 Articles of Amendment to the Restated Articles of Organization,
as amended, of the Company (Incorporated by reference to Exhibit
3.3 to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1999).
5.1 Opinion and consent of Parker Chapin Flattau & Klimpl, LLP,
counsel to the Company, as to the legality of the securities
being offered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Parker Chapin Flattau & Klimpl, LLP (Contained in
Exhibit 5.1).
24.1 Power of Attorney (Contained in the signature page to this
registration statement).
99.1 Amended and Restated 1997 Employee Stock Option Plan
(Incorporated by reference to Exhibit 10.1 to the 1999 Form
10-K).
</TABLE>
<PAGE>
Exhibit 5.1
November 23, 1999
Labtec Inc.
1499 S.E. Tech Center Place
Suite 350
Vancouver, Washington 98683
Ladies and Gentlemen:
We have acted as counsel to Labtec Inc., a corporation incorporated
under the laws of the Commonwealth of Massachusetts (the "Company"), in
connection with its filing of a registration statement on Form S-8 (the
"Registration Statement") being filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
offering of stock options to purchase up to 884,951 shares (the "Shares") of
Common Stock, par value $.01 per share (the "Common Stock"), granted to
directors of the Company (including directors who are not employees of the
Company), executive officers of the Company and its subsidiaries and other
employees, consultants and advisors of the Company, pursuant to the Company's
Amended and Restated 1997 Employee Stock Option Plan (the "Plan").
In connection with the foregoing, we have examined, among other things,
the Plan, the Registration Statement, and originals or copies, satisfactory to
us, of all such corporate records and of all such agreements, certificates and
other documents as we have deemed relevant and necessary as a basis for the
opinion hereinafter expressed. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity with the original documents of documents
submitted to us as copies. As to any facts material to such opinion, we have, to
the extent that relevant facts were not independently established by us, relied
on certificates of public officials and certificates, oaths and declarations of
officers or other representatives of the Registrant.
Based upon and subject to the foregoing, we are of the opinion that the
Shares to be issued pursuant to the exercise of options granted or to be granted
under the Plan will be, when issued pursuant to the provisions of the Plan,
validly issued, fully paid and non-assessable.
We hereby consent to the filing of a copy of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ Parker Chapin Flattau & Klimpl, LLP
PARKER CHAPIN FLATTAU & KLIMPL, LLP
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated May 21, 1999 relating to the
financial statements and financial statement schedules of Labtec, Inc., which
appear in Labtec, Inc.'s Annual Report on Form 10-K for the year ended March 31,
1999.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Portland, Oregon
November 22, 1999
