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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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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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EMPLOYEE STOCK PURCHASE 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>
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share (1) Price
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<S> <C> <C> <C> <C>
Common Stock, $.01
par value 500,000 shares $33.188 (1) $16,594,000 (1) $4,613
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</TABLE>
(1) Pursuant to Rule 457, the maximum offering price per share is based on the
average of the high and low sale prices of the Common Stock as reported by
Nasdaq on July 30, 1999.
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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 Registrant's Annual Report on Form 10-K for the year ended
September 30, 1998, filed with the Securities and Exchange Commission (the
"SEC") on December 28, 1998.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1998, filed with the SEC on January 26, 1999.
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999, filed with the SEC on May 7, 1999.
(4) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the SEC on April
27, 1998.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended, 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 will be 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.
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ITEM 8. EXHIBITS.
EXHIBIT DESCRIPTION
NUMBER
4.1 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)).
4.2 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).
10.1 Employee Stock Purchase Plan (incorporated by reference to
Exhibit 10.20 to the Registrant's Registration Statement on Form
S-1 (Reg. No. 333-70543)).
5.1 Opinion of Goulston & Storrs, P.C. with respect to the legality
of the shares being registered (filed herewith).
23.1 Consent of Goulston & Storrs, P.C. (included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP (filed herewith).
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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(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 SEC 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.
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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 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 August 3,
1999.
TWEETER HOME ENTERTAINMENT GROUP, INC.
By:/s/ Jeffrey Stone
_____________________________________
Jeffrey Stone,
President and Chief Operating Officer
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:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> /s/ Samuel J. Bloomberg <C> <C>
_______________________ Director, Chairman of the Board and August 3, 1999
Samuel J. Bloomberg Chief Executive Officer
/s/ Jeffrey Stone
_______________________ Director, President and Chief August 3, 1999
Jeffrey Stone Operating Officer
(Principal Executive Officer)
/s/ Joseph McGuire
_______________________ Vice President and Chief Financial August 3, 1999
Joseph McGuire Officer
(Principal Financial Officer and
Principal Accounting Officer)
</TABLE>
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/s/ Jeffrey Bloomberg
________________________ Director August 3, 1999
Jeffrey Bloomberg
/s/ Matthew Bronfman
________________________ Director August 3, 1999
Matthew Bronfman
/s/ Michael Cronin
________________________ Director August 3, 1999
Michael Cronin
/s/ Steven S. Fischman
________________________ Director August 3, 1999
Steven S. Fischman
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August 4, 1999
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
500,000 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 of the
Company pursuant to the Company's Employee Stock Purchase Plan (the "Plan").
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 Plan, when
issued and sold in accordance with the terms of the Plan, 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.
GOULSTON & STORRS, P.C.
TBB/KS
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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 reports dated
November 24, 1998 (December 9, 1998 as to Note 16), appearing in the Annual
Report on Form 10-K of Tweeter Home Entertainment Group, Inc. for the year
ended September 30, 1998.
Deloitte & Touche LLP
Boston, Massachusetts
August 4, 1999
