Registration Statement No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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
(401) 233-0333
(Address, including zip code and telephone number,
including area code, of registrant's principal executive offices)
Bacou USA, Inc. 1996 Stock Incentive Plan,
Bacou USA, Inc. 1996 Non-Employee Directors Stock Option Plan
and
1998 Howard S. Leight Stock Option Plan
(Full title of the plan)
Winfield W. Major, Esq.
General Counsel
Bacou USA, Inc.
10 Thurber Boulevard
Smithfield, RI 02917
(401) 233-0333
(Name, address, including zip code and telephone number,
including area code, of agent for service)
with a copy to:
Laura N. Wilkinson, Esq.
Edwards & Angell, LLP
2800 BankBoston Plaza
Providence, RI 02903
(401) 274-9200
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Title of
Each Class Amount Proposed maximum Proposed maximum Amount of
of Securities to be offering price aggregate offering registration
to be Registered registered per unit (1) price (1) fee
- --------------------------------------- ----------------------------------------
Common Stock, 700,000 shares $21.34375 $14,940,625 $4,154.00
$.001 par value (2)
- --------------------------------------------------------------------------------
(1) These figures are estimates made solely for the purpose of calculating the
registration fee pursuant to Rule 457 under the Securities Act of 1933, as
amended. The registration fee has been calculated in accordance Rule
457(h) based upon the average of the high and low prices for shares of
Bacou USA, Inc. on the New York Stock Exchange on February 17. 1999.
(2) Based on 1,000,000 shares of which 900,000 options were originally
authorized under the Bacou USA, Inc. 1996 Stock Incentive Plan (less
50,000 shares allocated to the 1998 Howard S. Leight Stock Option Plan)
and 100,000 options were originally authorized under the Bacou USA, Inc.
1996 Non-Employee Directors Stock Option Plan. The 700,000 additional
shares being registered herein consist of (i) 450,000 shares issuable
under the Bacou USA, Inc. 1996 Stock Incentive Plan; (ii) 200,000 shares
issuable under the Bacou USA, Inc. 1996 Non-Employee Directors Stock
Option Plan; and (iii) 50,000 shares issuable under the 1998 Howard S.
Leight Stock Option Plan.
PURSUANT TO RULE 429, THIS REGISTRATION STATEMENT SERVES TO REGISTER ADDITIONAL
SHARES OF COMMON STOCK, $.001 PAR VALUE, UNDER THE BACOU USA, INC. 1996 STOCK
INCENTIVE PLAN AND THE BACOU USA, INC. 1996 NON-EMPLOYEE DIRECTORS STOCK OPTION
PLAN (COLLECTIVELY, THE "PLANS") WHICH PLANS PREVIOUSLY REGISTERED SECURITIES
WITH THE COMMISSION UNDER REGISTRATION NO. 333-09251.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which Bacou USA, Inc. (the "Registrant") has
filed with the Securities and Exchange Commission (the "Commission") pursuant to
the Securities Exchange Act of 1934 (the "Exchange Act"), are incorporated in
this Registration Statement by reference:
1. Annual Report on Form 10-K for the fiscal year ended December 31, 1997;
2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998, and September 30, 1998;
3. Current Reports on Form 8-K dated March 13, 1998, June 17, 1998, August
5, 1998, October 7, 1998, October 14, 1998, November 4, 1998, January 19,
1999, January 20, 1999 and February 9, 1999 and on Form 8-K/A dated August
14, 1997 and April 15, 1998;
4. The description of the Registrant's Common Stock contained in the
Registrant's registration statement filed under Section 12 of the Exchange
Act, including any amendments or reports filed for the purpose of updating
such description.
All documents filed with the Commission by the Registrant pursuant to
Sections 13, 14 or 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
hereto which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated herein by reference and made 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 incorporated by reference herein 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. 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 shall have power to 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 the person 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 the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person 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 the person 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 shall have power to 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 the person 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
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person 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 indemnity 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, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person 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 the person has
met the applicable standard of conduct set forth in subsections (a) and (b) of
this section. Such determination shall be made, with respect to a person who is
a director or officer at the time of such determination, (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) by a committee of directors designated by
majority of such directors, even though less than a quorum, or (3) if there are
no such directors, or if such directors so direct, by independent legal counsel
in a written opinion, or (4) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative 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 such person 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 corporation 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 such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person 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 such person
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 a 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 By-Laws 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
23.1 Consent of KPMG LLP regarding Bacou USA, Inc.
23.2 Consent of PricewaterhouseCoopers LLP regarding Howard S.
Leight & Associates, Inc.
23.3 Consent of PricewaterhouseCoopers LLP regarding Comasec
Holdings, Inc.
23.4 Consent of Edwards & Angell (included in Exhibit 5)
24 Power of Attorney (included on signature pages to this
Registration Statement)
Item 9. Undertakings.
(a) The 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, as amended (the "Securities Act");
(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; and
(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 (i) and (ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement;
(2) For the purpose of determining any liability under the Securities Act,
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 Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act 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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Bacou USA, Inc.
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Smithfield, State of
Rhode Island, on this 10th day of February, 1999.
BACOU USA, INC.
By /s/ Philip B. Barr
-----------------------------------
Philip B. Barr
Executive Vice President,
Chief Financial Officer and Secretary
Each person whose signature appears below hereby constitutes and appoints
the Vice Chairman of the Board, President and Chief Executive Officer and the
Executive Vice President, Chief Financial Officer and Secretary, or either 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 this 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.
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 February 10, 1999.
Signature Title
/s/ Philippe Bacou Chairman of the Board, Director
--------------------------
Philippe Bacou
/s/ Walter Stepan Vice Chairman of the Board, President
-------------------------- and Chief Executive Officer, Director
Walter Stepan
/s/ Philip B. Barr Executive Vice President, Chief Financial
-------------------------- Officer and Secretary, Director
Philip B. Barr
/s/ Jeffrey T. Brown Treasurer and Chief Accounting Officer
--------------------------
Jeffrey T. Brown
--------------------------- Director
Christophe Bacou
/s/ Karl F. Ericson Director
---------------------------
Karl F. Ericson
/s/ Howard S. Leight Director
---------------------------
Howard S. Leight
/s/ Herbert A. Wertheim Director
---------------------------
Herbert A. Wertheim
Exhibit 5
February 18, 1999
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, 700,000
shares of Common Stock, $.001 par value (the "Common Stock"), to be issued or
issuable upon the exercise of outstanding stock options under the Company's 1996
Stock Incentive Plan, the 1996 Non-Employee Director Stock Option Plan and the
1998 Howard S. Leight Stock Option Plan (collectively, 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 and the use of this
opinion in connection with the Registration Statement and all amendments
thereto. This opinion may not be used for any other purpose or relied upon by
any other person, firm or corporation for any purpose without our prior written
consent.
Very truly yours,
EDWARDS & ANGELL, LLP
By: /s/ Laura N. Wilkinson
----------------------------------
Laura N. Wilkinson
Partner
Exhibit 23.1
ACCOUNTANTS' CONSENT
The Board of Directors
Bacou USA, Inc.
We consent to incorporation by reference in this Registration Statement on
Form S-8 of Bacou USA, Inc. of our report dated February 17, 1998, except as to
notes 2(b) and 7(b) which are as of February 27, 1998, relating to the
consolidated balance sheets of Bacou USA, Inc. and subsidiaries as of December
31, 1997 and 1996, and the related consolidated statements of income,
stockholders' equity and cash flows for the fiscal year ended December 31, 1997
and 1996, for the five months ended December 31, 1995, and for the fiscal year
ended July 31, 1995, and our report on the related schedule dated February 17,
1998, which reports appear in the December 31, 1997 annual report on Form 10-K
of Bacou USA, Inc.
/s/ KPMG LLP
-------------------------------
KPMG LLP
Providence, Rhode Island
February 17, 1999
Exhibit 23.2
The Board of Directors
Bacou USA, Inc.
10 Thurber Boulevard
Smithfield, RI 02917
We consent to incorporation by reference from Bacou USA, Inc.'s Form 8-KA
dated April 15, 1998 in the registration statement on Form S-8 of Bacou USA,
Inc. of our report dated February 9, 1998, on our audits of the consolidated
financial statements of Howard S. Leight & Associates, Inc. and subsidiaries
(d/b/a/ Howard Leight Industries) as of December 31, 1997 and 1996 and for each
of the three years in the period ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
----------------------------------
PricewaterhouseCoopers LLP
San Diego, California
February 18, 1999
Exhibit 23.3
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Bacou USA, Inc. of our report dated June 17, 1997
relating to the consolidated financial statements of Comasec Holdings, Inc. and
subsidiary, which appears in Exhibit 99(b) of the Current Report on Form 8-K/A
of Bacou USA, Inc. dated August 14, 1997.
/s/ PricewaterhouseCoopers LLP
----------------------------------
PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Costa Mesa, California
February 17, 1999
