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As filed with the Securities and Exchange Commission on November 24, 1998
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
-----------------------
TWEETER HOME ENTERTAINMENT GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3417513
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
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10 PEQUOT WAY
CANTON, MASSACHUSETTS 02021
(ADDRESS, INCLUDING ZIP CODE OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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1995 STOCK OPTION PLAN
1998 STOCK OPTION AND INCENTIVE PLAN
(FULL TITLE OF THE PLANS)
JOSEPH MCGUIRE, CHIEF FINANCIAL OFFICER
TWEETER HOME ENTERTAINMENT GROUP, INC.
10 PEQUOT WAY
CANTON, MASSACHUSETTS 02021
(781) 830-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES OF COMMUNICATIONS TO:
TIMOTHY B. BANCROFT, ESQ.
GOULSTON & STORRS, P.C.
400 Atlantic Avenue
Boston, Massachusetts 02110
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered (1) Offering Price Per Aggregate Offering Registration Fee
Share (2) Price (2)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01
par value 2,037,595 $10.80 (2) $22,006,026 (2) $6,117.68 (2)
==============================================================================================================================
</TABLE>
(1) Includes: (i) 845,387 shares of Common Stock issuable upon exercise of
currently outstanding options under the Registrant's 1995 Stock Option
Plan (the "1995 Plan"); (ii) 199,338 shares of Common Stock issuable upon
exercise of currently outstanding options under the Registrant's 1998
Stock Option and Incentive Plan (the "1998 Plan") (the 1995 Plan and the
1998 Plan collectively, the "Plans"); and (iii) under the 1998 Plan, an
additional 992,870 shares issuable upon exercise of options to be granted
after the date of this Registration Statement.
(2) The maximum offering price is based on the weighted average exercise price
of the options exercisable for the shares as described in Note (1), above,
except that pursuant to Rule 457(c) and (h), the offering price for the
additional shares as described in clause (iii) of Note (1), above, is
based on average of the high and low sale prices of the Common Stock as
reported by Nasdaq on November 18, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this Registration
Statement:
(1) The prospectus filed by Tweeter Home Entertainment Group, Inc. (the
"Registrant") with the Commission on July 16, 1998.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998, filed with the Commission on August 10, 1998.
(3) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission on
April 27, 1998.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the filing of this Registration
Statement, prior to the filing of a post-effective amendment to this
Registration Statement indicating that all securities offered hereby have been
sold or deregistering all securities then remaining unsold, shall be deemed to
be incorporated by reference herein and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in any 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 such statement so modified or
superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
An opinion has been delivered by Goulston & Storrs, P.C., Boston,
Massachusetts, with respect to the issuance of the shares of Common Stock being
offered hereby. Kitt Sawitsky is the Secretary of the Registrant and Daniel
Avery is the Assistant Secretary of the Registrant. Mr. Sawitsky and Mr. Avery
are both directors and shareholders of Goulston & Storrs, P.C.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Amended and Restated Certificate of Incorporation (the
"Charter") generally limits the liability of the Registrant's Directors to the
Registrant to the fullest extent permitted from time to time by Delaware law.
The Delaware General Corporation Law (the "DGCL") permits, but does not require,
a corporation to indemnify its directors, officers, employees or agents, and
expressly provides that the indemnification provided for under the DGCL shall
not be deemed exclusive of any indemnification right under any By-law, vote of
stockholders or disinterested directors, or otherwise. The DGCL permits
indemnification against expenses and certain other liabilities arising out of
legal actions brought or threatened against such persons for their conduct on
behalf of a corporation; provided, however, that each such person acted in good
faith and in a manner that he reasonably believed was in or not opposed to such
corporation's best interests and, in the case of a criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The DGCL does not
allow indemnification of directors in the case of an action by or in the right
of a corporation (including stockholder derivative suits) unless the directors
successfully defend the action or indemnification is ordered by the court.
The Charter provides that directors and executive officers of the
Registrant shall be and, in the discretion of the Board of Directors, other
officers and non-officer employees, may be indemnified by the Registrant to the
fullest extent authorized by Delaware law, as it now exists or may in the future
be amended, against all expenses and liabilities actually and reasonably
incurred in connection with service for or on behalf of the Registrant. The
By-laws also provide that the right of directors and officers to indemnification
shall be a contract right and shall not be exclusive of any other right now
possessed or hereafter acquired under any By-law, agreement, vote of
stockholders, or otherwise. The Charter contains a provision permitted by
Delaware law that generally eliminates the personal liability of directors for
monetary damages for breaches of their fiduciary duty, including breaches
involving negligence or gross negligence in business combinations, unless the
director has breached his or her duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or a knowing violation of law, paid a dividend
or approved a stock repurchase in violation of the DGCL or obtained an improper
personal benefit. The provision does not alter a director's liability under the
Federal securities laws. In addition, this provision does not affect the
availability of equitable remedies, such as an injunction or rescission, for
breach of fiduciary duty.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another filing of the Registrant with the Commission, each of the following
exhibits is filed herewith:
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EXHIBIT DESCRIPTION
NUMBER
4.1 1995 Stock Option Plan (incorporated by reference to Exhibit
10.12 to the Registrant's Registration Statement on Form S-1
(Reg. No. 333-51015))
4.2 1998 Stock Option and Incentive Plan (incorporated by reference
to Exhibit 10.13 to the Registrant's Registration Statement on
Form S-1 (Reg. No. 333-51015))
4.3 Specimen certificate representing the Common Stock (incorporated
by reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-1 (Reg. No. 333-51015))
4.5 Shareholders' Rights Agreement effective as of July 21, 1998
(incorporated by reference to Exhibit 4.2 to the Registrant's
Report on Form 10-Q for the quarter ended June 30, 1998).
5.1 Opinion of Goulston & Storrs, P.C. with respect to the legality
of the shares being registered.
23.1 Consent of Goulston & Storrs, P.C. (included in Exhibit 5.1)
23.2(a) Consent of Deloitte & Touche LLP -- Atlanta, GA
23.2(b) Consent of Deloitte & Touche LLP -- Boston, MA
23.2(c) Consent of Deloitte & Touche LLP -- Philadelphia, PA
24 Power of Attorney (included on signature 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 to include any material
information with respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change in such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended (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.
(4) 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 Securities Exchange Act of 1934, as amended, that is incorporated
by reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
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therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) 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 provisions described in Item 6 of this Registration
Statement, or otherwise, the Registrant has been advised that in the opinion of
the 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, 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 Town of Canton, Commonwealth of Massachusetts, on November
24, 1998.
TWEETER HOME ENTERTAINMENT
GROUP, INC.
By: /s/ Jeffrey Stone
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Jeffrey Stone,
President and Chief Operating Officer
By: /s/ Joseph McGuire
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Joseph McGuire,
Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Jeffrey Stone and Joseph McGuire
his true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same with all exhibits thereto, and other documentation in
connection therewith, with the Securities and Exchange Commission, granting unto
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 with respect thereto,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date(s) indicated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Samuel J. Bloomberg
- ------------------------ Director, Chairman of the Board November 5, 1998
Samuel J. Bloomberg and Chief Executive Officer
/s/ Jeffrey Stone
- ------------------------ Director, President and Chief November 5, 1998
Jeffrey Stone Operating Officer
(Principal Executive Officer)
/s/ Joseph McGuire
- ------------------------ Vice President and Chief Financial November 5, 1998
Joseph McGuire Officer
(Principal Financial Officer and
Principal Accounting Officer)
/s/ Jeffrey Bloomberg
- ------------------------ Director November 5, 1998
Jeffrey Bloomberg
/s/ Matthew Bronfman
- ------------------------ Director November 5, 1998
Matthew Bronfman
/s/ Michael Cronin
- ------------------------ Director November 5, 1998
Michael Cronin
/s/ Steven S. Fischman
- ------------------------ Director November 5, 1998
Steven S. Fischman
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Exhibit 5.1
November 24, 1998
Tweeter Home Entertainment Group, Inc.
10 Pequot Way
Canton, MA 02021
Ladies and Gentlemen:
This opinion is furnished to you in connection with the registration
statement on Form S-8 (the "Registration Statement") being filed on the date
hereof with the Securities and Exchange Commission for the registration of
2,037,595 shares (the "Shares") of Common Stock, $.01 par value, of Tweeter Home
Entertainment Group, Inc., a Delaware corporation (the "Company"). We understand
that the Shares will be issued and sold to certain employees or directors of the
Company or other persons upon exercise of options granted pursuant to the
Company's 1995 Stock Option Plan and 1998 Stock Option and Incentive Plan (the
"Plans").
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion, and based thereon we are of the
opinion that the Shares which may be issued and sold pursuant to the Plans, upon
the exercise or conversion of stock options granted thereunder, have been duly
authorized and, when issued and sold in accordance with the terms of the Plans,
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ GOULSTON & STORRS, P.C.
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GOULSTON & STORRS, P.C.
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Tweeter Home Entertainment Group, Inc. on Form S-8 of our report dated March 7,
1997 on the financial statements of HiFi Buys Incorporated for the years ended
December 31, 1996, 1995 and 1994, appearing in the Prospectus of Tweeter Home
Entertainment Group, Inc., which is part of Form S-1 Registration Statement No.
333-51015.
/s/ Deloitte & Touche LLP
- -----------------------------
Deloitte & Touche LLP
Atlanta, Georgia
November 24, 1998
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Tweeter Home Entertainment Group, Inc. on Form S-8 of our report dated June 5,
1998, appearing in the Prospectus of Tweeter Home Entertainment Group, Inc.,
which is part of Form S-1 Registration Statement No. 333-51015.
/s/ Deloitte & Touche LLP
- -----------------------------
Deloitte & Touche LLP
Boston, Massachusetts
November 24, 1998
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Tweeter Home Entertainment Group, Inc. on Form S-8 of our report dated October
20, 1995 (May 9, 1996 as to Note 2) on the combined financial statements of Bryn
Mawr Radio and Television Center, Inc. and affiliate for the year ended August
31, 1995, appearing in the Prospectus of Tweeter Home Entertainment Group, Inc.,
which is part of Form S-1 Registration Statement No. 333-51015.
/s/ Deloitte & Touche LLP
- -----------------------------
Deloitte & Touche LLP
Philadelphia, Pennsylvania
November 24, 1998
