FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Bacou USA, Inc.
(Exact name of registrant as specified in its charter)
Delaware 05-0470688
(State or other jurisdiction of I.R.S. Employer
incorporation or organization) Identification No.
10 Thurber Boulevard, Smithfield, RI 02917
(Address of Principal Executive Offices) (Zip Code)
Bacou USA, Inc.
1996 Stock Incentive Plan
and
Bacou USA, Inc. 1996 Non-Employee
Director Stock Option Plan
(Full title of the plan)
Philip B. Barr, Esq.
Vice President - Chief Financial Officer & General Counsel
Bacou USA, Inc.
10 Thurber Boulevard
Smithfield, RI 02917
(Name and address of agent for service)
(401) 233-0333
(Telephone number, including area code, of agent for service)
with a copy to:
Christine M. Marx, Esq., Edwards & Angell,
Three Gateway Center, Newark, NJ 07102
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities offering aggregate Amount of
to be Amount to be price per offering registration
registered registered share(1) price(1) fee
- --------------------------------------------------------------------------------
Common Stock, 1,000,000 $16.63 $16,630,000 $5,734.50
$.001 par value shares
- --------------------------------------------------------------------------------
(1) Computed pursuant to Rule 457 of the rules and regulations of the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, based on a price of $16.63 per share (the average of the high and
low prices per shares on NASDAQ on July 23, 1996).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the Company are incorporated in this Registration
Statement by reference:
1. The Company's Prospectus dated March 27, 1996 as filed with the
Commission pursuant to Rule 424(b);
2. The Company's Form 10-Q for the quarter ended March 31, 1996.
Such incorporation by reference shall not be deemed to specifically
incorporate by reference the information referred to in Item 402(a)(8) of
Regulation S-K.
All documents filed with the Commission by the Company pursuant to Sections
13, 14 or 15(d) of the Securities Exchange Act of 1934 ("Exchange Act")
subsequent to the date of this Registration Statement and prior to the
termination of this offering of the Common Stock offered hereby are incorporated
herein by reference and such documents shall be deemed to be a part hereof from
the date of filing of such documents. Any statement contained in this
Registration Statement or in a document incorporated or 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. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration 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 145 of the Delaware General Corporation Law, as amended,
provides in regard to indemnification of directors and officers as follows:
"145. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS;
INSURANCE. - (a) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnify for such expense which the Court of Chancery or such other court shall
deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrate or investigative action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation as
authorized in this section. Such expenses (including attorneys' fees) incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and 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 under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as he would have had with respect to such constituent corporation if
its separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to as person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees)."
The Company's bylaws provide that officers and directors of the Company
shall be indemnified to the full extent permitted under subsections (a) through
(e) of Section 145 of Title 8 of the Delaware General Corporation Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
5 Opinion of Edwards & Angell re: legality
23(a) Consent of KPMG Peat Marwick LLP
23(b) Consent of Edwards & Angell (included in Exhibit 5)
24 Power of Attorney (included on signature pages to this
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 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.
The undersigned Registrant hereby further 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 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 Registrant's bylaws, 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.
SIGNATURES AND AMENDMENTS
Each person whose signature appears below hereby constitutes and appoints
the President and Chief Executive Officer and the Vice President and Chief
Financial Officer of the Registrant, or any one of them, acting alone, as his
true and lawful attorney-in-fact, with full power and authority to execute in
the name, place and stead of each such person in any and all capacities and to
file, an amendment or amendments to the Registration Statement (and all exhibits
thereto) and any documents relating thereto, which amendments may make such
changes in the Registration Statement as said officer or officers so acting
deem(s) advisable.
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
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 Smithfield, State of Rhode Island, on July 30, 1996
BACOU USA, INC.
By:/s/Philip B. Barr
________________________________________
Philip B. Barr
Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on July 30, 1996.
Signatures Title
/s/Walter Stepan
___________________________
Walter Stepan President, Chief
Executive Officer, Director
/s/Philip B. Barr
___________________________
Philip B. Barr Vice President, Chief Financial
Officer, Treasurer and
Secretary, Director
/s/Jeffrey T. Brown
___________________________
Jeffrey T. Brown Controller and Chief Accounting
Officer
/s/Philippe Bacou
___________________________
Philippe Bacou Chairman of the Board
/s/Christophe Bacou
___________________________
Christophe Bacou Director
___________________________
Karl Ericson Director
___________________________
Dr. Henry A. Wertheim Director
Exhibit 5
July 30, 1996
Bacou USA, Inc.
10 Thurber Boulevard
Smithfield, RI 02917
Ladies and Gentlemen:
This opinion is furnished in connection with the filing by Bacou USA, Inc.
(the "Company") of a Registration Statement on Form S-8 (the "Registration
Statement") registering under the Securities Act of 1933, as amended, 1,000,000
shares of Common Stock, $.001 par value (the "Common Stock"), to be issued
pursuant to stock options under the Company's 1996 Stock Incentive Plan and the
1996 Non-Employee Director Stock Option Plan (the "Plans").
As counsel for the Company, we participated in the preparation of the
Registration Statement and have examined such other certificates and documents
as we deemed necessary or appropriate for the purposes of this opinion.
Based upon the foregoing, we are of the opinion that the shares of Common
Stock being registered by the Registration Statement, when issued and paid for
as contemplated by the Plans, will be validly issued, fully paid and
non-assessable.
We hereby consent to the reference to our firm in the Registration
Statement.
Very truly yours,
Edwards & Angell
By:\s\Christine M. Marx
____________________________
Christine M. Marx
Partner
Exhibit 23(b)
The Board of Directors
Bacou USA, Inc.
10 Thurber Boulevard
Smithfield, RI 02917
Ladies and Gentlemen:
We consent to incorporation by reference in the registration statement on Form
S-8 of Bacou USA, Inc. of our reports dated February 26, 1996, relating to the
consolidated balance sheets of Bacou USA, Inc. and Subsidiaries as of December
31, 1995 and July 31, 1995, and the related consolidated statements of income,
stockholders' equity and cash flows for the period from April 16, 1993 (date of
inception) through July 31, 1993, for the years ended July 31, 1994 and 1995 and
for the five months ended December 31, 1995, and dated June 28, 1993, relating
to the statements of income, stockholder's equity, and cash flows for the eight
and one-half month period ended April 15, 1993 of Uvex Distribution, Inc.
(Predecessor Business), which reports appear in the Form S-1 of Bacou USA, Inc.
/s/KPMG Peat Marwick LLP
_________________________
Providence, Rhode Island
July 30, 1996
