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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 23, 1999
REGISTRATION NO. 333-76195
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-4
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)
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DELAWARE 5731 04-3417513
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
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10 PEQUOT WAY
CANTON, MASSACHUSETTS 02021
(781) 830-3000
(ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S
PRINCIPAL EXECUTIVE
OFFICES)
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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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PURPOSE OF AMENDMENT
Tweeter is filing this Post-Effective Amendment No. 1 to its Registration
Statement on Form S-4 (Reg. No. 333-76195) primarily because Tweeter currently
meets the "Registrant" requirements for Form S-3. Accordingly, Tweeter is
amending its Registration Statement on Form S-4 to provide information pursuant
to Item 10 ("Information with Respect to S-3 Registrants") and Item 11
("Incorporation of Certain Information by Reference") for purposes of satisfying
the requirements of Part I.B. ("Information About the Registrant") of Form S-4.
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PROSPECTUS
4,000,000 SHARES
TWEETER HOME ENTERTAINMENT GROUP, INC.
TWEETER LOGO BRYN MAWR LOGO HIFI BUYS LOGO HOME ENTERTAINMENT LOGO DOW LOGO
COMMON STOCK
This prospectus relates to 4,000,000 shares of common stock of Tweeter Home
Entertainment Group, Inc. some of which Tweeter has offered and issued and the
balance of which Tweeter may offer and issue from time to time in the future, in
connection with its acquisition of the assets, business or securities of other
companies, whether by purchase, merger or any other form of business
combination. Tweeter expects that the terms of acquisitions involving the
issuance and sale of the common stock covered by this prospectus will be
determined by direct negotiations with the owners or controlling persons of the
assets, businesses or securities to be acquired and that the shares of Tweeter's
common stock so issued in any such business combination transaction will be
valued at prices reasonably related to the market price of the common stock
either at the time the terms of the acquisition are agreed upon or at or about
the time the shares of common stock are delivered.
Tweeter will pay all expenses of this offering. We will not pay any underwriting
discounts or commissions in connection with the issuance of the common stock,
although we may pay finder's fees in connection with specific acquisitions. Any
person receiving a finder's fee may be deemed to be an "underwriter" within the
meaning of the Securities Act of 1933.
Our common stock is listed for trading on the Nasdaq Stock Market under the
symbol "TWTR."
AN INVESTMENT IN THE COMMON STOCK OF TWEETER INVOLVES A HIGH DEGREE OF RISK. SEE
"RISK FACTORS" BEGINNING ON PAGE 4.
Neither the Securities and Exchange Commission (the "SEC") nor any state
securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
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THE DATE OF THIS PROSPECTUS IS DECEMBER 23, 1999
TABLE OF CONTENTS
PAGE
About This Prospectus..................................................... 3
Where You Can Find More Information....................................... 3
The Company............................................................... 4
Risk Factors.............................................................. 4
Plan of Distribution...................................................... 10
Legal Matters............................................................. 10
Experts................................................................... 10
Available Information..................................................... 10
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ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement that we filed with the SEC
using a "shelf" registration process. Under this shelf process, we may offer and
issue our common stock in one or more offerings, from time to time, so long as
the aggregate number of shares of common stock issued, including 49,946 shares
we issued prior to the date of this prospectus, does not exceed 4,000,000. This
prospectus provides you with a general description of our common stock. You
should read carefully this prospectus, any prospectus supplement we provide you,
and the additional information described under the heading "Where You Can Find
More Information."
Prior to the date of this prospectus and pursuant to the Registration Statement
of which this prospectus is a part, we issued:
o 32,290 shares of our common stock on June 30, 1999 in connection with
our acquisition of Dow Stereo/Video, Inc.;
o 12,532 shares of our common stock on September 3, 1999 in connection
with our acquisition of Electronic Environments, Inc.; and
o 5,124 shares of our common stock on November 1, 1999 in connection
with our acquisition of Sound Installations, Inc.
You should rely only on the information provided or incorporated by reference in
this prospectus and any prospectus supplement. We have not authorized anyone
else to provide you with different information. We are not making an offer of
our common stock in any state where the offer is not permitted. You should not
assume that the information in or incorporated by reference in this prospectus
or any prospectus supplement is accurate as of any date other than the date on
the front of those documents. Our business, financial condition, results of
operations and prospects may have changed since those dates.
The shares of our common stock to which this prospectus relates reflects a
two-for-one split of the outstanding shares of our common stock which was
effective as of December 2, 1999.
In this prospectus references to "Tweeter," "we," "us," and "our" mean Tweeter
Home Entertainment Group, Inc. and its predecessors and subsidiaries.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the reporting requirements of the Securities Exchange Act of
1934, and are required to file annual, quarterly and other reports, proxy
statements and other information with the Securities and Exchange Commission, or
SEC. Our current SEC filings are available to the public over the Internet at
the SEC's World Wide Web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference room at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the SEC's regional
offices at Seven World Trade Center, 13th Floor, New York, New York 10048, and
at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. You can also inspect this information at the offices of
Nasdaq Operations, 1735 K Street, N.W., Washington, D.C. 20006.
The SEC allows us to "incorporate by reference" into this prospectus information
in the documents we file with the SEC, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus,
and information that we file later with the SEC will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 until we sell all of the
securities:
1. Our Annual Report on Form 10-K for the fiscal year ended September 30,
1999;
2. Our Current Report on Form 8-K dated October 25, 1999; and
3. The description of our common stock contained in our Registration
Statement on Form 8-A dated April 24, 1998 and amended June 5, 1998.
You may request a copy of these filings at no cost, by writing or calling us at
our principal executive offices located at the following address:
Tweeter Home Entertainment Group, Inc.
10 Pequot Way
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Canton, Massachusetts 02021
Attention: Joseph McGuire, Chief Financial Officer
Telephone: (781) 830-3000
We will not provide exhibits to a document unless they are specifically
incorporated by reference in that document.
THE COMPANY
Tweeter is a specialty retailer of mid to high-end audio and video consumer
electronics products. We operate 76 stores, as a single business segment, under
the Tweeter, etc. name in the New England market, the Bryn Mawr Stereo & Video
name in the Mid-Atlantic market, the HiFi Buys name in the Southeast market, the
Home Entertainment name in the Dallas and Houston, Texas markets and the Dow
Stereo/Video name in the San Diego, California market. Our stores feature an
extensive selection of home and car audio systems and components, portable audio
equipment and home video products, including large screen televisions, DVD
players, digital satellite systems, video cassette recorders and camcorders. We
differentiate ourselves by focusing on consumers who seek audio and video
products with advanced features, functionality and performance. We do not offer
personal computers or home office equipment. We seek to build name recognition
and customer loyalty by combining quality products and knowledgeable sales
associates with a high level of service and competitive prices. Audio Video
International Magazine recognized us as the "Consumer Electronics Retailer of
the Year" in 1996, 1997 and 1999. The TWICE Consumer Electronics Retail Registry
named us the fastest growing consumer electronics retailer in the United States
in 1997 and 1998. We organized as a Massachusetts corporation in 1972 and
reorganized as a Delaware corporation in June 1998. Our principal executive
offices are located at 10 Pequot Way, Canton, Massachusetts 02021. Our telephone
number is (781) 830-3000.
RISK FACTORS
The value of an investment in Tweeter is subject to the significant risks
inherent in its business. Investors should consider carefully the risks and
uncertainties described below and the other information in this prospectus
before deciding whether to invest. If any of the events described below actually
occur, our business, financial condition or operating results could be adversely
affected in a material way. This could cause the trading price of our common
stock to decline, perhaps significantly.
This prospectus contains forward-looking statements regarding Tweeter's
performance, strategy, plans, objectives, expectations, beliefs and intentions.
The actual outcome of the events described in these forward-looking statements
could differ materially. The following is a discussion of some of the factors
and risks that could contribute to those differences.
RISKS ASSOCIATED WITH GROWTH
Tweeter's success depends in large part on its ability to open, or acquire
through strategic acquisitions, new stores in both existing and new geographic
markets and to operate those stores profitably. We may not be able to achieve
our planned expansion or to effectively integrate any new stores into our
existing operations. The opening of additional stores in new geographic markets
could present competitive and merchandising challenges different from those we
currently or previously faced within our existing geographic markets. In
addition, we may incur higher costs related to advertising, administration and
distribution as we enter new markets.
There are a number of factors which could affect our ability to open or acquire
new stores consistent with our business plan. These factors also affect the
ability of any newly opened or acquired stores to achieve sales and
profitability levels comparable with our existing stores, or to become
profitable at all. These factors include:
o the identification and acquisition of suitable sites and the
negotiation of acceptable leases for such sites;
o the identification of existing audio and video consumer electronics
retailers appropriate for strategic acquisition;
o the successful consummation of such acquisitions;
o the obtaining of governmental and other third-party consents, permits
and licenses needed to operate such additional sites;
o the hiring, training and retention of skilled personnel;
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o the availability of adequate management and financial resources;
o the adaptation of our distribution and other operational and
management systems to an expanded network of stores;
o the ability and willingness of vendors to supply on a timely basis at
competitive prices; and
o continued consumer demand for our products at levels that can support
acceptable profit margins.
In addition, our rapid expansion through the opening or acquisition of new
stores will place significant demands on our management, resources, operations
and information systems. Such expansion requires us to expend significant effort
and additional resources to ensure the continuing adequacy of our financial
controls, operating procedures, information systems, product purchasing and
distribution systems and employee training programs. We also need to attract and
retain additional qualified personnel, including new store managers, for such
new stores.
Our continued growth also depends on our ability to increase sales in our
existing stores. The opening of additional stores in an existing market could
result in lower net sales at our existing stores in that market.
RISKS ASSOCIATED WITH ACQUISITIONS
Integration of newly acquired stores may involve significant delay or expense.
Additional suitable acquisition candidates may not be identified. Further, new
stores acquired through such acquisitions may not operate profitably or
integrate successfully into our operations. For example, Tweeter is still in the
process of integrating the Home Entertainment and Dow Stereo/Video stores into
our operations and the success of such integration cannot yet be determined.
Previously acquired stores have had, and newly acquired stores may have,
different merchandising, advertising, store format and operating approaches from
ours, and our success in integrating such stores will depend on our ability to
effect significant changes in the operations of such stores to conform to our
approach in these areas. We may not be successful in effecting such changes
without an adverse effect on the revenues or profitability of such stores. In
addition, future acquisitions could involve the issuance of equity securities
which could dilute the holdings of existing stockholders. Future acquisitions
could also involve the incurrence of debt and contingent liabilities, and
amortization expenses related to goodwill and other intangible assets, any of
which could have a material adverse effect on our results of operations or
financial condition.
DEPENDENCE ON KEY PERSONNEL
Our success depends upon the active involvement of senior management personnel,
particularly Samuel J. Bloomberg, Tweeter's Chief Executive Officer and Chairman
of the Board, and Jeffrey Stone, Tweeter's President and Chief Operating
Officer. The loss of the full-time services of Messrs. Stone or Bloomberg or
other members of senior management could have a material adverse effect on
Tweeter's results of operations and financial condition. Except for employment
contracts with Messrs. Stone and Bloomberg, and with Joseph McGuire, the Chief
Financial Officer and Chief Information Officer of Tweeter, Tweeter does not
have employment agreements with any members of its senior management team.
RISKS ASSOCIATED WITH COMPETITION
The retail consumer electronics industry is highly competitive. Tweeter
currently competes against a diverse group of retailers, including several
national and regional large format merchandisers and superstores, such as
Circuit City and Best Buy, which sell, among other products, audio and video
consumer electronics products similar and often identical to those Tweeter
sells. Tweeter also competes in particular markets with a substantial number of
retailers that specialize in one or more types of consumer electronic products
that Tweeter sells. Certain of these competitors have substantially greater
financial resources than Tweeter that may increase their ability to purchase
inventory at lower costs or to initiate and sustain predatory price competition.
In addition, the large format stores are continuing to expand their geographic
markets, and such expansion may increase price competition within those markets.
Best Buy recently entered the New England market. A number of different
competitive factors could have a material adverse effect on Tweeter's results of
operations and financial condition, including:
o increased operational efficiencies of competitors;
o competitive pricing strategies;
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o expansion by existing competitors;
o entry by new competitors into markets in which Tweeter is currently
operating; and
o adoption by existing competitors of innovative store formats or retail
sales methods.
SEASONAL AND QUARTERLY FLUCTUATIONS IN SALES
Seasonal shopping patterns affect our business, like that of many retailers. The
fourth calendar quarter, which is Tweeter's first fiscal quarter and which
includes the December holiday shopping period, has historically contributed, and
is expected to continue to represent, a substantial portion of Tweeter's
operating income for its entire fiscal year. As a result, any factors negatively
affecting Tweeter during such calendar quarter of any year, including adverse
weather or unfavorable economic conditions, would have a material adverse effect
on Tweeter's results of operations for the entire year. More generally,
Tweeter's quarterly results of operations may fluctuate based upon such factors
as:
o the timing of new store openings and new store acquisitions;
o the amount of store pre-opening expenses;
o the amount of net sales contributed by new and existing stores;
o the mix of consumer electronic products sold in its stores;
o profitability of sales of particular products; and
o other competitive factors.
FLUCTUATIONS IN COMPARABLE STORE SALES
A number of factors have historically affected, and will continue to affect,
Tweeter's comparable store sales results, including, among other factors:
o competition;
o general regional and national economic conditions;
o consumer trends;
o changes in Tweeter's product mix;
o timing of promotional events;
o new product introductions; and
o Tweeter's ability to execute its business strategy effectively.
Tweeter does not expect comparable store sales to increase at historical rates,
and comparable store sales may decrease in the future. Changes in Tweeter's
comparable store sales results could cause the price of the common stock to
fluctuate substantially.
POTENTIAL NEED FOR ADDITIONAL FINANCING
Tweeter intends to use its common stock for a portion of the consideration for
future acquisitions. If the common stock does not maintain a sufficient
valuation, or potential acquisition candidates are unwilling to accept common
stock as part of the consideration for the sale of their businesses, the Company
may be required to utilize more of its cash resources, if available, in order to
pursue its
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acquisition program. If the Company does not have sufficient cash resources, its
growth could be limited unless it is able to obtain additional capital through
future debt or equity financings. Such debt or equity financing may not be
available on terms acceptable to Tweeter, if at all.
We estimate that the average cash investment, including pre-opening expenses for
tenant fit-out, demonstration and inventory (net of payables), required to open
a store to be approximately $985,000. The actual cost of opening a store may be
significantly greater than such current estimates, however, and we may need to
seek additional debt and/or equity financing in order to fund our continued
expansion through 2000 and beyond. In addition, our ability to incur additional
indebtedness or issue equity or debt securities could be limited by covenants in
present and future loan agreements and debt instruments. Additional issuances of
equity by Tweeter may result in dilution to existing stockholders.
CHANGES IN CONSUMER DEMAND AND PREFERENCES
Tweeter's success depends on its ability to anticipate and respond in a timely
manner to consumer demand and preferences regarding audio and video consumer
electronics products and changes in such demand and preferences. Consumer
spending patterns, particularly discretionary spending for products such as
those Tweeter markets, are affected by, among other things, prevailing economic
conditions. In addition, the periodic introduction and availability of new
products and technologies at price levels which generate wide consumer interest
stimulate the demand for audio and video consumer electronics products. Also,
many products which incorporate the newest technologies, such as DVD and
high-definition television, are subject to significant technological and pricing
limitations and to the actions and cooperation of third parties such as
television broadcasters or movie distributors. It is possible that these
products or other new products will never achieve widespread consumer
acceptance. Furthermore, the introduction or expected introduction of new
products or technologies may depress sales of existing products and
technologies. Significant deviations from the projected demand for products
Tweeter sells would have a materially adverse effect on its results of
operations and financial condition, either from lost sales or lower margins due
to the need to mark down excess inventory. Any sustained failure by Tweeter to
identify and respond to changes in consumer demand and preferences would have a
material adverse effect on Tweeter's results of operations and financial
condition.
DEPENDENCE ON SUPPLIERS
The success of Tweeter's business and growth strategy depends to a significant
degree upon its suppliers, particularly its brand-name suppliers of stereo and
video equipment such as Sony, Mitsubishi, Yamaha, Boston Acoustics and
Panasonic. Tweeter does not have any supply agreements or exclusive arrangements
with any vendors. Tweeter typically orders its inventory through the issuance of
individual purchase orders to vendors. In addition, Tweeter relies heavily on a
relatively small number of suppliers. Tweeter's two largest suppliers accounted
for approximately 36% of its sales during fiscal 1999. The loss of any of these
key vendors or the failure by Tweeter to establish and maintain relationships
with these or other vendors could have a material adverse effect on Tweeter's
results of operations and financial condition and its expansion. It is possible,
especially given Tweeter's growth strategy, that Tweeter will be unable to
acquire sufficient quantities or an appropriate mix of consumer electronic
products at acceptable prices, if at all. Specifically, Tweeter's ability to
establish additional stores in existing markets and to penetrate new markets
depends to a significant extent on the willingness and ability of vendors to
supply those additional stores, and vendors may not be willing or able to do so.
As we continue to open or acquire new stores, the inability or unwillingness of
suppliers to supply some or all of their products to us at acceptable prices in
one or more markets could have a material adverse effect on our results of
operations and financial condition.
UNCERTAINTY OF INTELLECTUAL PROPERTY RIGHTS
Our "Tweeter, etc." "Bryn Mawr Stereo," "DOW" and "DOW Stereo/Video" service
marks have been registered with the United States Patent and Trademark Office.
Tweeter has not registered the "HiFi Buys" and "Home Entertainment" service
marks. Tweeter is aware that other consumer electronics retailers use the name
"HiFi Buys" outside Tweeter's current geographical markets. Tweeter has
submitted applications for the registration of certain other of its service
marks, which applications are currently pending. Tweeter may be unable to
successfully register such service marks. In addition, Tweeter's service marks,
whether registered or unregistered, and patents may not be effective to protect
its intellectual property rights, and infringement or invalidity claims may be
asserted by third parties in the future. Any such assertions, if proven to be
true, could have a material adverse effect on Tweeter's results of operations
and financial condition.
EFFECT OF CERTAIN CHARTER AND BY-LAW PROVISIONS; ANTI-TAKEOVER PROVISIONS
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Tweeter's corporate charter and by-laws as well as certain provisions of
Delaware General Corporation Law, contain provisions which may deter, discourage
or make more difficult a change in control of Tweeter, even if such a change in
control would be in the interest of a significant number of Tweeter's
stockholders or if such change in control would provide such stockholders with a
substantial premium for their shares over then current market prices. For
example, the charter authorizes Tweeter's Board of Directors to issue one or
more classes of preferred stock, having such designations, rights and
preferences as they determine, and such issuances may, among other things, have
an adverse effect on the rights of holders of common stock.
Tweeter's stockholders have no right to take action by written consent and may
not call special meetings of stockholders. Any amendment of the by-laws by the
stockholders or certain provisions of the charter requires the affirmative vote
of at least 75% of the shares of voting stock then outstanding. The charter also
provides for the staggered election of directors to serve for one, two and
three-year terms, and for successive three-year terms thereafter, subject to
removal only for cause upon the vote of not less than 75% of the shares of
common stock represented at a stockholders' meeting.
In addition, under the terms of Tweeter's Stockholder Rights Plan, in general,
if a person or group acquires more than 15% of the outstanding shares of common
stock (an "Acquiring Person"), all other stockholders of Tweeter would have the
right to purchase securities from Tweeter at a discount to such securities' fair
market value, thus causing substantial dilution to the holdings of the Acquiring
Person. The Stockholder Rights Plan may inhibit a change in control and,
therefore, could adversely affect the stockholders' ability to realize a premium
over the then-prevailing market price for the common stock in connection with
such a transaction.
SHARES ELIGIBLE FOR FUTURE SALE
Assuming the sale of all 4,000,000 shares covered by this prospectus, Tweeter
will have 19,268,068 shares of common stock outstanding. Of such shares, the
5,420,000 shares sold in Tweeter's initial public offering, the 5,950,000 shares
sold in Tweeter's February 1999 follow-on offering and some or all of the
4,000,000 shares offered pursuant to this prospectus will be freely tradable.
As of December 20, 1999, approximately 2,376,132 shares of common stock were
issuable pursuant to options under Tweeter's stock plans and 8,812 shares of
common stock were issuable upon the exercise of warrants. Of the 2,376,132
shares issuable pursuant to options, 1,325,609 shares are currently exercisable.
Sales of substantial amounts of common stock in the public market, or the
perception that such sales could occur, could have a material adverse effect on
the market price of the common stock.
VOLATILITY OF STOCK PRICE
The trading price of our common stock has been and is likely to continue to be
highly volatile and could be subject to wide fluctuations in response to a
variety of internal and external factors. The stock market in general, and the
Nasdaq National Market in particular, have experienced extreme price and volume
fluctuations that have often been unrelated or disproportionate to the operating
performance of particular companies. The trading prices of many companies'
stocks are at or near historical highs and these trading prices and multiples
are substantially above historical levels. These trading prices and multiples
may not be sustained. These broad market factors may have a material adverse
effect on the market price of our common stock, regardless of our actual
operating performance. In the past, following periods of volatility in the
market price of a company's securities, securities class-action litigation has
often been instituted against such companies. Such litigation, if instituted,
could result in substantial costs and a diversion of management's attention and
resources, which would materially adversely affect Tweeter's results of
operations and financial condition.
YEAR 2000 COMPLIANCE
We have contacted our suppliers to determine whether Year 2000 issues will
affect their supply of goods to us. Any disruption in our supply chain could
have a material adverse affect on our results of operation and financial
condition. In addition, although we anticipate minimal internal business
interruption due to Year 2000 problems, we expect any problems which may arise
to develop during our peak sales period. During this time, it is possible that
Tweeter may lose communications links with certain store locations, that
Tweeter's stores may close due to loss of electric power, that Tweeter's stores'
and storage facilities' security systems may not operate and that individual
stores may be unable to process transactions, send purchase orders or engage in
similar normal business activities. Any large scale failure to operate during
this period may have a material adverse effect on Tweeter's results of
operations and financial condition.
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PLAN OF DISTRIBUTION
This prospectus relates to the offer and sale of shares of common stock which
may be issued from time to time in connection with the acquisition of other
businesses, assets or securities in business combination transactions. In such
acquisitions, Tweeter may offer as consideration, in addition to any shares of
common stock offered by this prospectus, assets, debt or other securities or
Tweeter's assumption of liabilities of the business being acquired, or a
combination thereof. We expect that the number of shares of common stock and the
price and other terms at which the common stock covered hereby will be offered
and issued will be determined by direct negotiations with the owners or
controlling persons of the businesses. We also expect that the shares of common
stock issued will be valued at prices reasonably related to the prevailing
market-price of the common stock either at the time the terms of the acquisition
are agreed upon or at or about the time or times of delivery of the shares of
common stock.
LEGAL MATTERS
Goulston & Storrs, P.C., Boston, Massachusetts, will deliver an opinion as to
the validity of the common stock being offered hereby. Kitt Sawitsky serves as
Tweeter's Secretary and Daniel Avery serves as Tweeter's Assistant Secretary.
Mr. Sawitsky and Mr. Avery are both directors and shareholders of Goulston &
Storrs, P.C., counsel to Tweeter.
EXPERTS
The consolidated financial statements of Tweeter appearing in Tweeter's Annual
Report on Form 10-K for the year ended September 30, 1999 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report thereon
included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated by reference herein in reliance upon such
report of Deloitte & Touche LLP given upon the authority of said firm as experts
in accounting and auditing.
AVAILABLE INFORMATION
Tweeter filed a Registration Statement on Form S-4 under the Securities Act with
the SEC in Washington, D.C. relating to the common stock covered by this
prospectus which is to be offered from time to time in connection with
acquisitions by Tweeter of the assets, securities or businesses of other
companies. This prospectus does not contain all of the information set forth in
the Registration Statement and the exhibits and schedules to the Registration
Statement, certain portions having been omitted from this prospectus in
accordance with the rules and regulations of the SEC. Statements contained in
this prospectus concerning the contents of any contract or any other document
referred to are not necessarily complete; reference is made in each instance to
the copy of such contract or document filed as an exhibit to the Registration
Statement, each such statement being qualified in all respects by such
reference. For further information with respect to Tweeter and the common stock
covered hereby, we refer investors to the Registration Statement, the exhibits
thereto and the financial statements, notes and schedules filed as a part
thereof.
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INVESTORS MAY RELY ONLY ON THE INFORMATION IN THIS PROSPECTUS. TWEETER HAS NOT
AUTHORIZED ANYONE TO PROVIDE ANY DIFFERENT OR ADDITIONAL INFORMATION. THIS
PROSPECTUS IS NOT AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY SHARES
OF TWEETER'S COMMON STOCK TO ANY PERSON IN ANY JURISDICTION WHERE IT IS
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE OF SHARES MEANS
THAT INFORMATION IN THIS PROSPECTUS IS CORRECT OR COMPLETE AFTER THE DATE OF
THIS PROSPECTUS.
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4,000,000 SHARES
TWEETER HOME
ENTERTAINMENT
GROUP, INC.
COMMON STOCK
---------------
PROSPECTUS
---------------
DECEMBER 23, 1999
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Tweeter's Amended and Restated Certificate of Incorporation ("Charter")
generally limits the liability of its Directors to Tweeter to the fullest extent
permitted from time to time by Delaware law. The Delaware General Corporate Law
(the "DGCL") permits, but does not require, Tweeter 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 Tweeter'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 Tweeter's Directors and executive officers shall be
and, in the discretion of the Board of Directors, other officers and non-officer
employees may be, indemnified by Tweeter 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 Tweeter. 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 21. EXHIBITS AND FINANCIAL STATEMENTS.
(a) See the Exhibit Index included immediately preceding the exhibits to this
Registration Statement.
(b) See the Index to Financial Statement Schedules in Registrant's Annual Report
on Form 10-K for the fiscal year ended September 30, 1999 and incorporated
herein by reference. All other schedules are not required under the instructions
relating to the applicable accounting regulations of the SEC or are
inapplicable, and therefore have been omitted.
ITEM 22. 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 of 1933;
(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. 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 maximum 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;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
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<PAGE> 13
statement or any material change to such information in the
Registration Statement;
(2) 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 relating to the securities offered therein, and the
offering of such securities at the 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) 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 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.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to under Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and that offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(d) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the Registration Statement through the
date of responding to the request.
(e) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
(f) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
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<PAGE> 14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Boston, Commonwealth of
Massachusetts on December 23, 1999.
TWEETER HOME ENTERTAINMENT GROUP, INC.
By: /s/ JOSEPH MCGUIRE
---------------------------------
Joseph McGuire
Vice President and Chief
Financial Officer
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been duly signed below by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ JOSEPH MCGUIRE Director, Chairman of the December 23, 1999
- ---------------------------- Board and Chief Executive
Joseph McGuire, attorney-in- Officer
fact for Samuel Bloomberg
/s/ JOSEPH MCGUIRE Director and President December 23, 1999
- ---------------------------- (Principal Executive
Joseph McGuire, attorney-in- Officer)
fact for Jeffrey Stone
/s/ JOSEPH MCGUIRE Vice President and Chief December 23, 1999
- ---------------------------- Financial Officer
Joseph McGuire (Principal Financial
Officer and Principal
Accounting Officer)
/s/ JOSEPH MCGUIRE Director December 23, 1999
- ----------------------------
Joseph McGuire, attorney-in-
fact for Jeffrey Bloomberg
/s/ JOSEPH MCGUIRE Director December 23, 1999
- ----------------------------
Joseph McGuire, attorney-in-
fact for Matthew Bronfman
/s/ JOSEPH MCGUIRE Director December 23, 1999
- ----------------------------
Joseph McGuire, attorney-in-
fact for Michael Cronin
/s/ JOSEPH MCGUIRE Director December 23, 1999
- ----------------------------
Joseph McGuire, attorney-in-
fact for Steven Fischman
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<PAGE> 15
EXHIBIT INDEX
(a) EXHIBITS:
EXHIBIT NO. DESCRIPTION
*4.1 -- Specimen Certificate representing the common stock.
*4.2 -- Shareholders' Rights Agreement.
**5.1 -- Opinion of Goulston & Storrs, P.C.
**23.1 -- Consent of Deloitte & Touche LLP.
**23.2 -- Consent of Goulston & Storrs, P.C., counsel to the Company
(included in Exhibit 5.1).
***24.1 -- Power of Attorney.
- ----------
* Filed as an exhibit to the Registrant's Registration Statement on
Form S-1 (Registration Number 333-51015) or amendments thereto and
incorporated herein by reference.
** Filed herewith.
*** Filed as an exhibit to the Registrant's Registration Statement on
Form S-4 (Registration Number 333-76195) and incorporated herein by
reference.
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<PAGE> 1
5.1
December 23, 1999
Tweeter Home Entertainment Group, Inc.
10 Pequot Way
Canton, MA 02021
Ladies and Gentlemen:
This opinion is furnished to you in connection with Post-effective
Amendment No. 1 to a Registration Statement on Form S-4 (the "Registration
Statement"), filed by Tweeter Home Entertainment Group, Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, for the registration of 4,000,000 shares
of Common Stock, $.01 par value (the "Shares"), of the Company that may be
offered and issued from time to time by the Company in connection with its
acquisition of the assets, business or securities of other companies.
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 are duly authorized and, when approved for issuance by
the Board of Directors of the Company or a duly appointed committee thereof and
issued by the Company from time to time as described in the prospectus forming a
part of the Registration Statement, will be validly issued, fully paid and
nonassessable.
It is understood that this opinion is to be used only in connection with
the offer and sale of the Shares while the Registration Statement is in effect.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to our firm in the prospectus
contained in the Registration Statement under the caption "Legal Matters."
Very truly yours,
/s/ Goulston & Storrs, P.C.
TBB/KS
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<PAGE> 1
23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to Registration Statement No. 333-76195 of Tweeter Home Entertainment
Group, Inc. and Subsidiaries on Form S-4 of our reports dated November 18, 1999,
appearing in the Annual Report on Form 10-K of Tweeter Home Entertainment Group,
Inc. and Subsidiaries for the year ended September 30, 1999, and to the
reference to us under the heading "Experts" in the prospectus, which is part of
such Registration Statement.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
December 22, 1999
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