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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BOX HILL SYSTEMS CORP.
(Exact name of registrant as specified in its charter)
NEW YORK
(State or other jurisdiction of incorporation or organization)
13-3460176
(I.R.S. Employer Identification No.)
161 AVENUE OF THE AMERICAS
NEW YORK, NY 10013
(Address of principal executive offices)
BOX HILL SYSTEMS CORP. 1995 INCENTIVE PROGRAM
and
BOX HILL SYSTEMS CORP. EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
PHILIP BLACK
CHIEF EXECUTIVE OFFICER
BOX HILL SYSTEMS CORP.
161 AVENUE OF THE AMERICAS
NEW YORK, NY 10013
(212) 989-4455
(Name, Address and Telephone Number of Agent for Service)
Copy to:
LEO SILVERSTEIN, ESQ.
BROCK FENSTERSTOCK SILVERSTEIN
MCAULIFFE & WADE LLC
ONE CITICORP CENTER - 56TH FLOOR
NEW YORK, NEW YORK 10022
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED SHARE PRICE FEE
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Common Stock,
par value
$.01
per share(1) 1,462,547 shs. $ 3.71 (2) $ 5,426,049.37 $1,644.26
Common Stock,
par value
$.01
per share (3) 929,953 shs. $15.00 (4) $13,949,295.00 $4,227.06
Common Stock,
par value
$.01
per share (5) 250,000 shs. $15.00 $ 3,750,000.00 $1,136.36
Total 2,642,500 shs. $23,125,344.37 $7,007.68
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(1) Represents shares issuable upon exercise of outstanding options issued
under the Box Hill Systems Corp. 1995 Incentive Program (the "Incentive
Program").
(2) Represents the average offering price of options issued pursuant to the
Incentive Program.
(3) Represents additional shares reserved for issuance under the Incentive
Program.
(4) Based on the maximum anticipated offering price for the Company's Common
Stock in the initial public offering being conducted pursuant to the
Company's registration statement on Form S-1, Registration No. 333-31873.
(5) Represents shares reserved for issuance pursuant to the Box Hill Systems
Corp. Employee Stock Purchase Plan (the "Purchase Plan").
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THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING AS
PROVIDED IN RULE 462 UNDER THE SECURITIES ACT OF 1933.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing information specified by Part I of this Form
S-8 Registration Statement have been or will be sent or given to participants
in each of the Incentive Program and the Purchase Plan as specified in Rule
428(b)(1) under the Securities Act of 1933, as amended.
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act and the Introductory Note to Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents incorporated by reference according to Item 3 herein are
available without charge upon written or oral request.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant hereby incorporates by reference the following
documents into this Registration Statement:
1. The prospectus of the Registrant filed pursuant to Rule 424(b)
under the Securities Act, relating to the offering of Common Stock registered
in the Registrant's Registration Statement on Form S-1 (Registration No.
333-31873), declared effective on September 16, 1997.
2. The description of the Common Stock provided in the Company's
Registration Statement on Form 8-A, as amended, Commission File No. 1-13317.
In addition, any 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 to
this Registration Statement which indicate that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in and made a part of this
Registration Statement from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not required, in as much as the Registrant's Common Stock is
registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Certificate of Incorporation of the Company provides that a
director of the Company shall not be liable to the Company or its shareholders
for damages for any breach of duty in such capacity unless a judgment or other
final adjudication adverse to such director establishes that his acts or
omissions were in bad faith or involved intentional misconduct or a knowing
violation of law or that he or she was not legally entitled or that his or her
acts violated Section 719 of the New York Business Corporation Law.
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The By-laws of the Company further provide that the Company shall
indemnify any officer or director of the Company for his or her reasonable
expenses, including attorney's fees, actually and necessarily incurred by him
or her in connection with his or her defense of any action (except an action by
the Company in its own right) to which he or she becomes a party by reason of
the fact that such individual served as an officer or director or employee of
the Company or of any corporation in which he or she served at the request of
the Company, unless judgment or final adjudication adverse to the officer or
director establishes that his or her acts were committed in bad faith or were
the result of active and deliberate dishonesty and were material to the cause
of action so adjudicated, or that he or she personally gained in fact a
financial profit or other advantage to which he or she was not legally
entitled.
Section 722 of the New York Business Corporation Law provides, in
substance, that New York corporations may indemnify their directors and
officers in connection with actions or proceedings (other than one by or in the
right of the corporation to procure a judgment in its favor) brought against
such directors or officers, including actions brought against such directors or
officers by or in the right of any other corporation, by reason of the fact
that they are or were such directors or officers, against judgments, fines,
amounts paid in settlement and reasonable expenses.
The Company's employment agreements with Dr. Benjamin Monderer, Ms.
Carol Turchin and Mr. Mark Mays, all executive officers and directors of the
Company, its compensation agreement with Mr. Philip Black, a director of the
Company and its Chief Executive Officer, and an agreement with Mr. Finis F.
Conner, a director of the Company, provide for the indemnification of those
individuals to the extent of the foregoing.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Registrant pursuant to the foregoing provisions, the Registrant has been
informed 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index on page II-7 of this Registration Statement.
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ITEM 9. UNDERTAKINGS.
(1) The undersigned Registrant undertakes:
(a) 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, unless the information required to be included
in such post-effective amendment is contained in a periodic report
required to be filed by the Registrant or plan pursuant to Section 13
or 15(d) of the Exchange Act that is incorporated herein by reference;
(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, unless the information required to be
included in such post-effective amendment is contained in a periodic
report filed by the Registrant or plan pursuant to Section 13 or 15(d)
of the Exchange Act that is incorporated herein by reference;
(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.
(b) 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 related to the securities offered
herein, and the offering of such securities at the time shall be deemed to
be the initial bona fide offering thereof.
(c) 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.
(d) That, for the 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 15(d) of the Exchange Act that is incorporated
by reference in this Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(2) 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 provisions described in Item 6 above,
or otherwise, the Registrant has been advised that in
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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 of the Registrant of expenses incurred or paid by the
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
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 New York, State of New York, on September 16, 1997.
BOX HILL SYSTEMS CORP.
By: /s/ Philip Black
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Philip Black
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Philip Black or Benjamin Monderer, his
true and lawful attorney-in-fact, with power of substitution and
resubstitution, to execute in the name of such person, in his capacity as a
director or officer of Box Hill Systems Corp., any and all amendments to this
Registration Statement on Form S-8 and all instruments necessary or incidental
in connection therewith, and to file the same with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact, or
his substitute, may 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 on September 16, 1997, by the following
persons in the capacities indicated.
Signature Title
- --------- -----
/s/ Benjamin Monderer Chairman of the
- ----------------------------- Board, President and
Benjamin Monderer Chief Technical Officer
/s/ Philip Black Chief Executive Officer
- ----------------------------- and Director
Philip Black
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/s/ Carol Turchin Executive Vice President
- ----------------------------- and Director
Carol Turchin
/s/ Mark A, Mays Vice President, Secretary
- ----------------------------- and Director
Mark A. Mays
Director
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Finis F. Connor
Director
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Robert C. Miller
Director
- -----------------------------
Mischa Schwartz
/s/ R. Robert Rebmann Chief Financial Officer
- ----------------------------- (Principal Financial Officer)
R. Robert Rebmann
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EXHIBIT INDEX
Exhibit No. Page No.
3.1 - Certificate of Incorporation, as amended (Exhibit 3.1 *
to the Company's Registration Statement on Form S-1,
File No. 333-31873)
3.3 - Amended and Restated By-laws (Exhibit 3.3 to the *
Company's Registration Statement on Form S-1,
File No. 333-31873)
5.1 - Opinion of Brock Fensterstock Silverstein McAuliffe **
& Wade LLC
10.5 - Box Hill Systems Corp. 1995 Incentive Program *
(Exhibit 10.5 to the Company's Registration Statement on
Form S-1, File No. 333-31873)
10.8 - Box Hill Systems Corp. Employee Stock Purchase Plan *
(Exhibit 10.8 to the Company's Registration Statement on
Form S-1, File No. 333-31873)
16 - Letter re: change in certifying accountants (Exhibit 16 to *
the Company's Registration Statement on Form S-1, File
No. 333-31873)
23.1 - Consent of Arthur Andersen LLP **
23.2 - Consent of Perelson Weiner **
23.3 - Consent of Brock Fensterstock Silverstein McAuliffe *
& Wade LLC (included in Exhibit 5.1)
24 - Powers of Attorney (included on the signature page hereof)
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* Incorporated herein by reference to the Registration Statement
** Filed herewith
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Exhibit 5.1
September 16, 1997
Box Hill Systems Corp.
161 Avenue of the Americas
New York, NY 10013
Re: Registration Statement on Form S-8
Gentlemen:
As counsel to Box Hill Systems Corp., a New York corporation (the
"Registrant") with respect to the above Registration Statement relating to the
registration of (i) 2,392,500 shares of the common stock, par value $.01 per
share (the "Common Stock") of the Registrant reserved for issuance pursuant to
the Registrant's 1995 Incentive Program (the "Incentive Program") and (ii)
250,000 shares of Common Stock reserved for issuance pursuant to the
Registrant's Employee Stock Purchase Plan (the "Purchase Plan"), we have
examined copies of the Certificate of Incorporation and amendments thereto,
By-laws of the Registrant, as amended, the Incentive Program, the Purchase
Plan, minutes of relevant proceedings, unanimous consents of Directors and
shareholders of the Company, and such other materials as we determined
pertinent.
Based on the foregoing, it is our opinion that:
i. the 2,392,500 shares of Common Stock reserved for issuance pursuant
to the Incentive Program, when paid for and issued pursuant to the terms of the
Incentive Program, will be legally issued, fully paid and non-assessable; and
ii. the 250,000 shares of Common Stock reserved for issuance pursuant
to the Purchase Plan, when paid for and issued pursuant to the terms of the
Purchase Plan, will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
BROCK FENSTERSTOCK SILVERSTEIN
McAULIFFE & WADE LLC
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Exhibit 23.1
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Box Hill Systems Corp.:
As independent public accountants, we hereby consent to the incorporation by
reference in this S-8 Registration Statement of our report dated March 21, 1997
included in the Box Hill Systems Corp. S-1 Registration Statement and to all
references to our Firm included in this S-8 Registration Statement.
ARTHUR ANDERSEN LLP
Philadelphia, Pa.,
September 15, 1997
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
To the Board of Directors of Box Hill Systems Corp.:
As independent auditors, we hereby consent to the use of our report and to all
references to our Firm included in or made a part of this registration
statement.
Perleson Weiner
New York, NY,
September 16, 1997
