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As filed with the Securities and Exchange Commission on November 20, 1998
REGISTRATION STATEMENT NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
BORON, LEPORE & ASSOCIATES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 22-2365997
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
17-17 ROUTE 208 NORTH
FAIR LAWN, NJ 07410
(201) 791-7272
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
AMENDED AND RESTATED 1996 STOCK OPTION AND GRANT PLAN
(FULL TITLE OF THE PLAN)
------------------------------
PATRICK G. LEPORE
CHAIRMAN, CHIEF EXECUTIVE OFFICER AND PRESIDENT
BORON, LEPORE & ASSOCIATES, INC.
17-17 ROUTE 208 NORTH
FAIR LAWN, NJ 07410
(201) 791-7272
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------------
With a copy to:
JOHN R. LECLAIRE, P.C.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================================================
Title of Securities Being Amounts to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Share (2) Aggregate Offering Price Registration Fee
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 1,093,857 $26.125 $28,577,014.12 $7,945
per share
==========================================================================================================================
</TABLE>
(1) This Registration Statement also relates to such indeterminate number of
additional shares of Boron, LePore & Associates, Inc. Common Stock as may be
required pursuant to the Amended and Restated 1996 Stock Option and Grant
Plan, as amended, in the event of a stock dividend, reverse stock split,
split-up, recapitalization, forfeiture of stock under these plans or other
similar event.
(2) This estimate is made pursuant to Rule 457(c) and (h) under the Securities
Act of 1933, as amended (the "Securities Act") solely for the purposes of
determining the amount of the registration fee. The registration fee is
based upon the average of the high and low prices for the Registrant's
Common Stock, par value $.01 per share, as reported on The Nasdaq National
Market on November 16, 1998.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
----------------
Item 2. Registrant Information and Employee Plan Annual Information.*
-----------------------------------------------------------
* Information required by Part I to be contained in the Section 10(a)
Prospectuses is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 (the "Securities Act") and the Introductory
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
Boron, LePore & Associates, Inc. (the "Registrant") hereby incorporates by
reference the following documents which have previously been filed with the
Securities and Exchange Commission:
(a) the Registrant's most recent annual report on Form 10-K filed with the
Securities and Exchange Commission on March 31, 1998;
(b) all other reports filed with the Securities and Exchange Commission by
the Registrant pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") since March 31,
1998; and
(c) the description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A, dated September 16, 1997, as filed
with the Securities and Exchange Commission on September 17, 1997
pursuant to Section 12(g) of the Securities Exchange Act of 1934, as
amended.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment
hereto that indicates that all securities offered hereunder 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 filing of such documents. Any statement contained in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained herein
or in any subsequently filed document which also is 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.
2
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Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
In accordance with Section 145 of the General Corporation Law of the State
of Delaware ("DGCL"), Article VII of the Registrant's Restated Certificate of
Incorporation (the "Certificate") provides that no director of the Registrant
shall be personally liable to the Registrant or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) in respect of
certain unlawful dividend payments or stock redemptions or repurchases, or (iv)
for any transaction from which the director derived an improper personal
benefit. In addition, the Certificate provides that if the Delaware General
Corporation Law is amended to authorize the further elimination or limitation of
the personal liability of directors, then the liability of a director of the
Registrant shall be eliminated or limited to the fullest extent permitted by the
Delaware General Corporation Law, as so amended. The Certificate further
provides that any repeal of Article VII by the stockholders or an amendment to
the DGCL shall not adversely effect any right or protection with respect to acts
or omissions occurring prior to such repeal.
Article V of the Registrant's Amended and Restated By-laws (the "By-laws")
provides for indemnification by the Registrant of its directors, officers and
certain non-officer employees (including officers and certain non-officer
employees of subsidiaries) under certain circumstances against expenses
(including attorneys fees, judgments, fines and amounts paid in settlement)
reasonably incurred in connection with the defense or settlement of any
threatened, pending or completed legal proceeding in which any such person is
involved by reason of the fact that such person is or was a director, an officer
or an employee of the Registrant, or is acting in any capacity with other
entities at the written request of the Registrant, if such person acted in good
faith and in a manner he or she reasonably believed to be in, or not opposed to,
the best interests of the Registrant, and with respect to criminal actions or
proceedings, that such person had no reasonable cause to believe his or her
conduct was unlawful. The by-laws provide that these provisions of Articles V
are deemed to be a contract between the Corporation and each Officer and Non-
Officer Employee.
The Registrant has entered into indemnification agreements with each of its
non-employee directors reflecting the foregoing provisions of its By-laws and
requiring the advancement of expenses in proceedings, if such person had no
reasonable cause to believe his or her conduct was unlawful.
The Company carries directors' and officers' liability insurance covering
its directors and officers.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
The following is a complete list of exhibits filed as part of this
Registration Statement.
Exhibits
- --------
*3.1 Third Amended and Restated Certificate of Incorporation
*3.2 Amended and Restated By-Laws of the Registrant
*4.1 Boron, LePore & Associates, Inc. Amended and Restated 1996 Stock
Option and Grant Plan
4.2 First Amendment to the Boron, LePore & Associates, Inc. Amended and
Restated 1996 Stock Option and Grant Plan
3
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5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of M.R. Weiser & Co. LLP
24.1 Powers of Attorney (included on signature pages to this Registration
Statement)
* Incorporated by reference to the relevant exhibit to the Boron, LePore &
Associates, Inc. Registration Statement on Form S-1 (SEC File No. 333-30573),
as amended, as filed with the Securities and Exchange Commission.
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;
(ii) To reflect in the prospectus any acts 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 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 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) herein do
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 undersigned Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
the Registration Statement;
(2) That, 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; 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, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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.
4
<PAGE>
(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 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 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.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, Boron, LePore &
Associates, Inc. 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 Fair Lawn, New Jersey on this 18th day of November, 1998.
Boron, LePore & Associates, Inc.
By: /s/ Patrick G. LePore
---------------------
Patrick G. LePore
Chairman, Chief Executive Officer
and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints each of Patrick G. LePore and Gregory F. Boron
person's true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for such person and in such person's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent 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 such person might or could do
in person, hereby ratifying and confirming all that any said attorney-in-fact
and agent, or any substitute or substitutes of any of them, may lawfully do or
cause to be done by virtue hereof.
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 dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Patrick G. LePore Chairman of the Board, Chief Executive November 18, 1998
- ----------------------------------- Officer, President and Director
Patrick G. LePore (Principal Executive Officer)
/s/ Gregory F. Boron Chief Operating Officer and Director November 18, 1998
- -----------------------------------
Gregory F. Boron
/s/ Martin J. Veilleux Chief Financial Officer, Secretary November 18, 1998
- ----------------------------------- and Treasurer (Principal Financial
Martin J. Veilleux Officer and Principal
Accounting Officer)
/s/ Roger Boissonneault Director November 18, 1998
- -----------------------------------
Roger Boissonneault
</TABLE>
S-1
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<TABLE>
<S> <C> <C>
/s/ Roger B. Kafker Director November 18, 1998
- -----------------------------------
Roger B. Kafker
/s/ Jacqueline C. Morby Director November 18, 1998
- -----------------------------------
Jacqueline C. Morby
- ----------------------------------- Director November __, 1998
Joseph E. Smith
/s/ John A. Staley, IV Director November 18, 1998
- -----------------------------------
John A. Staley, IV
</TABLE>
S-2
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
* 3.1 Third Amended and Restated Certificate of Incorporation
* 3.2 Amended and Restated By-Laws of the Registrant
* 4.1 Boron, LePore & Associates, Inc. Amended and Restated 1996 Stock
Option and Grant Plan.
4.2 First Amendment to the Boron, LePore & Associates, Inc. Amended
and Restated 1996 Stock Option and Grant Plan.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of M.R. Weiser & Co. LLP
24.1 Powers of Attorney (included on signature pages to this
Registration Statement)
* Incorporated by reference to the relevant exhibit to the Boron, LePore &
Associates, Inc. Registration Statement on Form S-1 (SEC File No.
333-30573), as amended, as filed with the Securities and Exchange
Commission.
<PAGE>
EXHIBIT 4.2
FIRST AMENDMENT TO
THE BORON, LEPORE & ASSOCIATES, INC.
AMENDED AND RESTATED
1996 STOCK OPTION AND GRANT PLAN
WHEREAS, on April 25, 1998 the Board of Directors voted to increase the
base number of shares reserved for issuance under the Plan by 1,000,000 shares
and to increase the number of shares for which incentive options may be issued
under the Plan by 1,000,000 shares; and
WHEREAS, the Stockholders of the Company approved such amendments at the
1997 Annual Meeting of Stockholders of the Company held on June 4, 1998.
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Section 3(a)(i) - The reference to 3,000,000 shares is deleted and
substituting therefor "4,000,000 shares."
2. Section 3(a)(ii) - The reference to 3,000,000 shares is deleted and
substituting therefor "4,000,000 shares."
3. Except as otherwise amended herein, the Plan is hereby affirmed in all
other respects.
<PAGE>
EXHIBIT 5.1
November 17, 1998
Boron, LePore & Associates, Inc.
17-17 Route 208 North
Fair Lawn, New Jersey 07410
Ladies and Gentlemen:
Re: Registration Statement on Form S-8
----------------------------------
This opinion is delivered in our capacity as counsel to Boron, LePore &
Associates, Inc. (the "Company") in connection with the preparation and filing
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act") of a Registration Statement on Form S-8 (the "Registration
Statement") relating to 1,093,857 shares of Common Stock, par value $.01 per
share (the "Registered Shares") which the Company may issue pursuant to the
Boron, LePore & Associates, Inc. Amended and Restated 1996 Stock Option and
Grant Plan, as amended, (the "Plan").
As counsel for the Company, we have examined a copy of the Plan and the
Company's Third Amended and Restated Certificate of Incorporation and the
Amended and Restated By-laws, each as presently in effect, and such records,
certificates and other documents of the Company as we have deemed necessary or
appropriate for the purposes of this opinion.
We are attorneys admitted to practice in The Commonwealth of Massachusetts.
We express no opinion concerning the laws of any jurisdiction other than the
laws of the United States of America, The Commonwealth of Massachusetts and the
Delaware General Corporation Law.
Based on the foregoing, we are of the opinion that upon the issuance and
delivery of the Registered Shares against payment therefor in accordance with
the terms of the Plan and any agreement thereunder, the Registered Shares will
be legally issued, fully paid and non-assessable shares of the Company's Common
Stock under the General Corporation Law of the State of Delaware.
The foregoing assumes all requisite steps will be taken to comply with the
requirements of the Act, applicable requirements of state laws regulating the
offer and sale of securities and applicable requirements of The Nasdaq Stock
Market, Inc.
We hereby consent to being named as counsel to the Company in the
Registration Statement and to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Boron, LePore & Associates, Inc.
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 10, 1998
included in Boron, LePore & Associates, Inc., financial statements for the year
ended December 31, 1997 and to all references to our Firm included in this
registration statement.
Roseland, New Jersey
November 20, 1998
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To Boron, LePore & Associates, Inc.
We consent to the incorporation by reference in the registration statement of
Boron, LePore & Associates, Inc. (the "Company") on Form S-8 being filed by the
Company during November 1998 of our report dated April 10, 1996, on our audit of
the financial statements of Boron, LePore & Associates, Inc. for the year ended
December 31, 1995, which report is included in the Annual Report on Form 10-K
for the year ended December 31, 1997.
/s/ M.R. Weiser & Co. LLP
M.R. WEISER & CO. LLP
New York, N.Y.
November 20, 1998
