Registration No. 333-
As filed with the Securities and Exchange Commission on July 24, 1997
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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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BROWN & SHARPE MANUFACTURING COMPANY
(Exact name of registrant as specified in its charter)
Delaware 05-0113140
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
Precision Park, 200 Frenchtown Road
North Kingstown, Rhode Island 02852
(Address of Principal Executive Offices, including Zip Code)
1989 Equity Incentive Plan
(Full Title of the Plan)
Charles A. Junkunc
Vice President and Chief Financial Officer
Brown & Sharpe Manufacturing Company
Precision Park, 200 Frenchtown Road
North Kingston, Rhode Island 02852
(401) 886-2000
(Name, Address and Telephone Number of Agent for Service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered(1) share(1)(2) price(1)(2) registration fee(4)
Class A Common Stock, 650,000 $13.07 $8,495,500 $2,575
par value $1.00
per share(3); and
Class B Common Stock, 650,000
par value $1.00 per share
</TABLE>
(1) No more than 650,000 shares of Class A Common Stock and Class B Common
Stock in the aggregate may be issued.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low prices
of the Brown & Sharpe Class A Common Stock, par value $1.00, reported on the New
York Stock Exchange Composite Transactions Index on July 22, 1997.
(3) Includes such number of Preferred Stock Purchase Rights as are issuable
in tandem with such shares of Common Stock.
(4) Calculated on the basis of 650,000 shares of Class A Common Stock, par
value $1.00 per share, because no market exists for the shares of Class B
Common Stock, par value $1.00 per share, which shares of Class B Common
Stock are convertible into shares of Class A Common Stock on a one-for
- -one basis.
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Page 1 of
Exhibit Index at Page
-I-
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
NOTE: The document(s) containing the information required by Item 1 of this
Form S-8 and the statement of availability of Registrant information,
and other information required by Item 2 of this Form will be sent or
given to employees as specified by Rule 428 under the Securities
Act of 1933, as amended (the "Securities Act"). In accordance with
Rule 428 and the requirements of Part I of Form S-8, such documents
are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. Brown &
Sharpe Manufacturing Company (the "Registrant") shall maintain a file
of such documents in accordance with the provisions of Rules 428.
Upon request, the Registrant shall furnish to the Commission or its
staff a copy of any or all of the documents included in such file.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Registrant hereby incorporates the following documents herein by
reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, as filed with the Commission on March 28, 1997 and the
Registrant's Amendment No. 1 to the Annual Report on Form 10-K/A for the fiscal
year ended December 31, 1996, as filed with the Commission on June 27, 1997.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997, as filed with the Commission May 13, 1997.
(c) The information under the caption "Description of Capital Stock" on
pages 22 and 23 in the Company's Prospectus dated October 1, 1980 filed pursuant
to Rule 424(b) under the Securities Act of 1933, and any amendments or reports
which have been or will be filed in the future for the purpose of updating such
information.
(d) The description of the Registrant's Class B Common Stock included
in the Registrant's effective registration statement on Form 8-A, as filed with
the Commission on April 28, 1988.
All other documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15 of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement that indicates that
all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed incorporated herein by reference from
the date of filing of such documents.
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<PAGE>
Item 6. Indemnification of Directors and Officers.
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Section 148 of Subchapter IV of the General Corporation Law of the
State of Delaware provides the following:
(a) A corporation shall have the power to indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
actions, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
(b) A corporation shall have the power to indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of
a corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in subsections (a) and
(b), or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) (unless
ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b). Such determination shall be made (1) by a
majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum, or (2) if there are no
such
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<PAGE>
directors, or if such directors so direct, by independent legal counsel
in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer
or director in defending any civil, criminal, administrative, or
investigative action, suit or proceeding may be paid by the corporation
in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that
he is not entitled to be indemnified by the corporation as authorized
in this Section. Such expenses (including attorneys' fees) incurred by
other employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other subsections of this section shall not
be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office.
(g) A corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee of agent or the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against
such liability under the provisions of this section.
(h) For purposes of this Section, references to "the
corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of
this Section with respect to the resulting or surviving corporation as
he would have with respect to such constituent corporation if its
separate existence had continued.
(i) For purposes of this Section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee, or agent
with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted
in a manner "not opposed to the best interests of the corporation" as
referred to in this Section.
(j) The indemnification and advancement of expenses provided by,
or granted pursuant to, this section shall, unless otherwise provided
when authorized or ratified, continue as to a
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<PAGE>
person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators
of such a person.
(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of
expenses or indemnification brought under this section or under any
bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. The Court of Chancery may summarily determine a
corporation's obligation to advance expenses (including attorneys'
fees).
Section 10 of the Registrant's By-Laws provides the following:
This corporation shall, to the maximum extent permitted from
time to time under the law of the State of Delaware, indemnify
and upon request shall advance expenses to any person who is or
was a party or is threatened to be made a party to any
threatened, pending or completed action, suit, proceeding or
claim, whether civil, criminal, administrative or investigative,
by reason of the fact that such person is or was or has agreed
to be a director or officer of this corporation or any direct or
indirect subsidiaries of this corporation, or while such a
director or officer is or was serving at the request of this
corporation as a director, officer, partner, trustee, employee
or agent of any corporation, partnership, joint venture, trust
or other enterprise, including service with respect to employee
benefit plans, against expenses (including attorney's fees and
expenses), judgments, fines, penalties and amounts paid in
settlement incurred in connection with the investigation,
preparation to defend or defense of such action, suit,
proceeding or claim; provided, however, that the foregoing shall
not require this corporation to indemnify or advance expenses to
any person in connection with any action, suit, proceeding,
claim or counterclaim initiated by or on behalf of such person.
Such indemnification shall not be exclusive of other
indemnification rights arising under any By-Law, agreement, vote
of directors or stockholders or otherwise and shall inure to the
benefit of the heirs and legal representatives of such person.
Any person seeking indemnification under this Section 10 shall
be deemed to have met the standard of conduct required for such
indemnification unless the contrary shall be established.
The Registrant has entered into separate Indemnity Agreements with each
of the following directors and officers of the Registrant: James W. Hayes, III,
dated May 1, 1987; John M. Nelson, dated May 1, 1987; Paul R. Tregurtha, dated
May 1, 1987; Russell A. Boss, dated May 1, 1990; Howard K. Fuguet, dated May 1,
1990; Antonio Aparicio, dated May 1, 1992; C. John Cooke, dated May 1, 1992;
Charles A. Junkunc, dated May 1, 1992; Karl J. Lenz, dated May 1, 1992; Henry D.
Sharpe, III, dated May 1, 1992; Frank T. Curtin, dated May 3, 1995; Alfred J.
Corso, dated May 3, 1995; James W. Cooper, dated August 19, 1996; Edward J.
LaGraize, dated August 21, 1996; Harry A. Hammerly, dated October 25, 1996; John
Robert Held, dated October 25, 1996; Roger E. Levien, dated October 25, 1996;
Marcus Burton, dated January 1, 1997; Sergio Cappa, dated January 1, 1997;
Christopher J. Garcia, dated January 1, 1997; Edward D. DiLuigi, dated June 16,
1997; and, Les W. Sgnilek, dated July 7, 1997.
In addition, the Registrant maintains a directors' and officers'
liability insurance policy.
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<PAGE>
Item 8. Exhibits.
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Exhibit No. Description
- ----------- -----------
4. The Registrant hereby agrees to furnish to the Commission
upon request copies of any long-term debt instruments not
filed herewith because the securities authorized under any
such instrument do not exceed ten percent of total assets of
the Registrant and its Consolidated Subsidiaries.
5. Opinion of Ropes & Gray.
23.1. Consent of Ropes & Gray (contained in its opinion filed as
Exhibit 5 hereto).
23.2. Consent of Ernst & Young LLP.
23.3. Consent of Coopers & Lybrand L.L.P.
24. Power of Attorney (contained in Part II hereof under
"Signatures and Power of Attorney").
Item 9. Undertakings.
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(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;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
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<PAGE>
that are incorporated by reference 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 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.
(b) The undersigned Registrant hereby undertakes that, for 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 Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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 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 Act and will
be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES AND POWER OF ATTORNEY
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 North Kingstown, State of Rhode Island on this day of
July 24, 1997.
BROWN & SHARPE MANUFACTURING
COMPANY
By /s/ Charles A. Junkunc
----------------------------------
Charles A. Junkunc, Vice President
and Chief Financial Officer
We, the undersigned officers and directors of Brown & Sharpe
Manufacturing Company, hereby severally constitute and appoint Frank T. Curtin,
and Charles A. Junkunc, and each of them singly, our true and lawful attorneys
or attorney to execute in our names, in the capacities indicated below, 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. Each of said attorneys shall have power to
act hereunder with or without any other of said attorneys, and shall have full
power of substitution and resubstitution. Each of said attorneys shall have full
power and authority to do and perform in the name and on behalf of each of the
undersigned, in any and all capacities, every act whatsoever requisite or
necessary to be done in the premises, as fully and to all intents and purposes
as each of the undersigned might or could do in person, and each of the
undersigned hereby ratifies and approves the acts of said attorneys and each of
them.
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
/s/ Frank T. Curtin /s/ Henry D. Sharpe, III
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Frank T. Curtin, Director and Henry D. Sharpe, III
Chairman of the Board Director
President and Chief Executive Officer
(Principal Executive Officer)
/s/ Russell A. Boss /s/ John M. Nelson
- -------------------------------------- --------------------------
Russell A. Boss John M. Nelson
Director Director
/s/ Howard K. Fuguet /s/ Paul R. Tregurtha
- -------------------------------------- --------------------------
Howard K. Fuguet Paul R. Tregurtha
Director Director
/s/ Harry A. Hammerly /s/ Roger E. Levien
- --------------------------------------- --------------------------
Harry A. Hammerly Roger E. Levien
Director Director
/s/ J. Robert Held /s/ Alfred J. Corso
- --------------------------------------- --------------------------
J. Robert Held Alfred J. Corso
Director Controller
(Principal Accounting
Officer)
/s/ Charles A. Junkunc
- ---------------------------------------
Charles A. Junkunc
Vice President and Chief Financial
Officer (Principal Financial Officer)
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<PAGE>
EXHIBIT INDEX
Exhibit List
Exhibit No. Description
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4. The Registrant hereby agrees to furnish to the Commission upon request
copies of any long-term debt instruments not filed herewith because the
securities authorized under any such instrument do not exceed ten
percent of total assets of the Registrant and its Consolidated
Subsidiaries.
5. Opinion of Ropes & Gray.
23.1. Consent of Ropes & Gray (contained in its opinion filed as Exhibit 5
hereto).
23.2. Consent of Ernst & Young LLP.
23.3. Consent of Coopers & Lybrand L.L.P.
24. Power of Attorney (contained in Part II hereof under "Signatures and
Power of Attorney").
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Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
(617) 951-7000
FAX: (617) 951-7050
July 24, 1997
Brown & Sharpe Manufacturing Company
Precision Park
P.O. Box 456
North Kingstown, Rhode Island 02852
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration
statement on Form S-8 (the "Registration Statement"), filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, for the registration of 650,000 shares of Class A Common Stock, $1.00
par value and Class B Common Stock, $1.00 par value (the "Shares"), of Brown &
Sharpe Manufacturing Company, a Delaware corporation (the "Company"). The Shares
are to be sold from time to time pursuant to the Company's 1989 Equity Incentive
Plan (the "Plan").
We have acted as counsel for the Company in connection with the
registration of the Shares. For purposes of our opinion, we have examined and
relied upon such documents, records, certificates and other instruments as we
have deemed necessary.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and that, when issued and sold by the Company pursuant to the
Plan, they will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as part of the
Registration Statement.
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.
Very truly yours,
/s/ ROPES & GRAY
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Ropes & Gray
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the 1989 Equity Incentive Plan of Brown &
Sharpe Manufacturing Company of our report dated February 5, 1997, with
respect to the 1996 consolidated financial statements and schedule of
Brown & Sharpe Manufacturing Company included in its Annual Report
(Form 10-K) for the year ended December 31, 1996, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
-----------------------
Ernst & Young LLP
Providence, Rhode Island
July 24, 1997
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CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Brown & Sharpe Manufacturing Company 1989 Equity Incentive Plan on Form S-8 of
our report dated March 29, 1995, on our audits of the consolidated financial
statements and financial statement schedule of Brown & Sharpe Manufacturing
Company as of December 31, 1994, and for the year then ended, which report is
included in Brown & Sharpe Manufacturing Company's Annual Report on Form 10-K.
/s/ COOPERS & LYBRAND L.L.P.
----------------------------
Coopers & Lybrand L.L.P.
Boston, Massachusetts
July 24, 1997
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