<PAGE> 1
As filed with the Commission on August 13, 1998 Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------
EKCO GROUP, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 11-2167167
- ------------------------------ -------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
98 Spit Brook Road, Suite 102, Nashua, New Hampshire 03062
-----------------------------------------------------------
(Address of principal executive offices, including zip code)
1987 STOCK OPTION PLAN
-----------------------------------------------------
(Full title of the plan)
John Jay Althoff, Esq.
Vice President, General Counsel and Secretary
EKCO Group, Inc.
98 Spit Brook Road, Suite 102
Nashua, New Hampshire 03062
(603) 888-1212
---------------------------------------------------------
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Title of Amount Proposed maximum Proposed Amount
securities to be offering maximum of
to be registered price per aggregate registration
registered share (a) offering fee
price (a)
- --------------------------------------------------------------------------------
Common Stock 267,700 $7.84375 $2,099,772 $ 619.43
par value, $.01 94,000 $8.25000 $ 775,500 $ 228.77
638,300 $7.87500 $5,026,613 $1,482.85
--------- ---------
1,000,000 $2,331.05
- --------------------------------------------------------------------------------
(a) This calculation is made solely for the purpose of determining the
registration fee pursuant to the provisions of Rule 457(h) under the Securities
Act of 1933, as amended, as follows: (i) in the case of shares of common stock,
$.01 par value per share ("Common Stock"), which may be purchased upon exercise
of outstanding options, the fee is calculated on the basis of the price at which
the options may be exercised; and (ii) in the case of shares of Common Stock for
which options have not yet been granted and the option price of which is
therefore unknown, the fee is calculated on the basis of the average of the high
and low sale prices of the Common stock on the New York Stock Exchange as of a
date (August 10, 1998) within 5 business days prior to filing this Registration
Statement.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
EKCO Group, Inc. (the "Registrant" or the "Company") hereby incorporates
the following documents, all of which have previously been filed with the
Securities and Exchange Commission, herein by reference:
a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 28, 1997.
b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 29, 1998.
c) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 28, 1998.
d) The Company's Current Report on Form 8-K as of January 16, 1998, and
Amendment No. 1 thereto on Form 8-K/A dated March 18, 1998.
e) The description of the Company's Common Stock contained in the
Company's registration statements on Form 8-A filed under Section 12
of the Securities and Exchange Act of 1934, as amended (the "Exchange
Act") and all amendments or reports filed for the purpose of updating
such descriptions.
All other documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the termination of the offering of the securities offered
hereby shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents. Any
statement contained herein or in a 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 subsequently filed document that 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, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not required.
Item 5. Interests of Named Experts and Counsel.
Not required.
Item 6. Indemnification of Directors and Officers.
The Company is a Delaware corporation. Section 145 of the Delaware General
Corporation Law sets forth provisions that define the extent to which a
corporation organized under the laws of Delaware may indemnify directors,
officers, employees or agents. Section 145 provides as follows:
(a) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any
2
<PAGE> 3
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 the
person 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 the person in connection with such action, suit or
proceeding if the person acted in good faith and in a manner the person
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 the person's 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 the person 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 the person's conduct was unlawful.
(b) A corporation shall have 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 or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that the person 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 the person in connection with the defense or
settlement of such action or suit if the person acted in good faith and in
a manner the person 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 present or former 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, such person
shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by such person 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 present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the
3
<PAGE> 4
applicable standard of conduct set forth in subsections (a) and (b). Such
determination shall be made with respect to a person who is a director or
officer at the time of such determination (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) by a committee of such directors
designated by a majority vote of such directors, even though less than a
quorum, or (3) there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) 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 such person is not
entitled to be indemnified by the corporation as authorized in this
Section. Such expenses (including attorneys' fees) incurred by former
directors and officers or other employees and agents may be so paid upon
such terms and conditions, if any, as the Corporation 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 such person's official capacity and as to action in another
capacity while holding such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who 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
any liability asserted against such person and incurred by such person in
any such capacity, or arising out of such person's status as such, whether
or not the corporation would have the power to indemnify such person
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 such person would have with respect to such constituent
corporation if its separate existence had continued.
4
<PAGE> 5
(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 such person 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 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.
The Company's Certificate of Incorporation provides that, from and after
February 12, 1987, a director will not be liable for monetary damages for
breaches of his fiduciary duty of care except for liability when the director
(a) breaches his duty of loyalty to the Company or its stockholders, (b) acts or
fails to act otherwise than in good faith, engages in intentional misconduct or
knowingly violates the law, (c) authorizes payment of a dividend or a stock
repurchase which is illegal under Delaware law, or (d) enters into a transaction
from which he obtains an improper personal benefit.
The Bylaws of the Company authorize the Company to indemnify to the fullest
extent permitted by law its present and former directors (and their heirs,
executors and administrators) with respect to expenses (including attorneys'
fees), judgments, fines and settlement payments incurred because of any claim
made after July 30, 1986 in any threatened, pending or completed action against
them while serving in their capacities as directors or officers of the Company
or with another company at the Company's request. The Bylaws state that any
agreement for indemnification of any director or officer may provide
indemnification rights which are broader or otherwise different from those set
forth in the Bylaws. The Bylaws provide that the indemnity provisions are
intended to grant an enforceable right to indemnification in accordance with
their terms. The Bylaws, therefore, require indemnification under certain
circumstances where Delaware law permits but does not require such
indemnification and may require or permit indemnification in a specific case
without compliance with the terms of one or more of the provisions of Delaware
law.
The Company has indemnity agreements with each person who has served as an
officer or director since April 1, 1987. The indemnity agreements provide that
the Company, in accordance with the terms and conditions thereof, will pay on
behalf of the indemnitee (and his executors, administrators or assigns) any
amount which he is or becomes legally obligated to pay because of any claim made
against him after July 30, 1986 because of any past, present or future act,
omission or breach of duty, including any actual or alleged error or
misstatement or misleading statement committed or suffered while the indemnitee
was, is or may in the future be acting in his capacity as, or solely because of
his being, a director or officer of the Company and/or a subsidiary
5
<PAGE> 6
of the Company. The Company will not be liable under the indemnity agreements to
make any payment in connection with any claim made against the indemnitee under
certain circumstances, including a claim based upon the indemnitee's gaining in
fact any personal profit or advantage to which he was not legally entitled. The
Company must consent to the incurrence of the costs, charges and expenses
covered by the indemnity agreements.
The Delaware General Corporation Law, the Company's Certificate of
Incorporation, the Bylaws and the Indemnity Agreements authorize the Company's
Board of Directors to grant indemnity to directors and officers in terms
sufficiently broad to permit such indemnification under certain circumstances
for liabilities arising under the Securities Act. The Company also has a policy
insuring the Company directors and officers of the Company against certain
liabilities, including liabilities under the Securities Act of 1933.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, or otherwise, the Company has been informed that in
the opinion of the SEC such indemnification is against public policy as
expressed in the 1933 Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not Required.
Item 8. Exhibits.
The following exhibits are filed as a part of this Registration Statement.
Where such filing is made by incorporation by reference to a previously filed
statement or report, such statement or report is identified in parentheses.
Exhibit
No. Description
------- -----------
3.1(a) Restated Certificate of Incorporation dated February 17,
1987, as amended (incorporated herein by reference to
Exhibit 3.1(i)(a) to Form 10-K for the year ended December
31, 1995).
3.1(b) Form of Certificate of Designations of Series A Junior
Participating Preferred Stock (incorporated herein by
reference to Exhibit 3.1(i)(b) to Form 10-K for the year
ended December 28, 1997).
3.1(c) Certificate of Designations of Series B ESOP Convertible
Preferred Stock (incorporated herein by reference to Exhibit
3.1(c) to Form 10-K for the year ended January 1, 1995).
3.2 By-laws as currently in effect (incorporated herein by
reference to Form 10-K for the year ended December 29,
1996).
4.1 Amended and Restated Rights Agreement dated as of March 21,
1997 with American Stock Transfer & Trust Company, including
Form of Rights Certificate (incorporated herein by reference
to Exhibit 4.1 to Form 8-K as of March 21, 1997).
6
<PAGE> 7
4.2 Amended and Restated Credit Agreement dated as of April 11,
1995 and amended and restated as of July 8, 1997, as
amended, with Fleet National Bank (incorporated herein by
reference to Exhibit 10.22 to Form 10-Q for the quarterly
period ended June 29, 1997 and Exhibit 10.18(b) to Form 10-K
for the year ended December 28, 1997).
4.3 EKCO Group, Inc. Dividend Reinvestment and Stock Purchase
Plan (incorporated herein by reference to Exhibit 4.3 to
Form 10-K for the year ended December 31, 1995)
5 Opinion of John J. Althoff.
23.1 Consent of John J. Althoff. (Reference is made to
Exhibit 5.)
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney (contained on the Signature Page of this
Registration Statement).
99 1987 Stock Option Plan, as amended (incorporated herein by
reference to Exhibit 10.2(a) to Form 10-K for the year ended
December 28, 1997).
Item 9. 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, represents 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) (Section 230.424(b)
of this chapter) if, in the aggregate, the changes in volume and
price represent no more than a 20% 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
Statement or any material change to such information in the
Registration Statement;
7
<PAGE> 8
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and 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 this 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 herein, 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
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(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.
8
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 City of Nashua, the State of New Hampshire, on this 13th of
August, 1998.
EKCO GROUP, INC.
By /s/ MALCOLM L. SHERMAN
-----------------------------
Malcolm L. Sherman, Chairman
of the Board and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and as of the 13th day of August, 1998. Each person whose signature
appears below hereby authorizes each of Malcolm L. Sherman and John Jay Althoff
and appoints each of them singly his attorney-in-fact, each with full power of
substitution, to execute in his name, place and stead, in any and all
capacities, any post-effective amendment to this Registration Statement and file
the same, with exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, making such further changes in this
Registration Statement as the Company deems appropriate.
Signature Title
--------- -----
/s/ MALCOLM L. SHERMAN Chairman of the Board, and
- --------------------------- Chief Executive Officer
Malcolm L. Sherman (Principal Executive Officer)
/s/ DONATO A. DENOVELLIS Executive Vice President, Finance
- --------------------------- and Administration, and Chief
Donato A. DeNovellis Financial Officer
(Principal Financial Officer)
/s/ BRIAN R. MCQUESTEN Vice President and Controller
- --------------------------- (Principal Accounting Officer)
Brian R. McQuesten
/s/ GEORGE W. CARMANY, III Director
- ---------------------------
George W. Carmany, III
/s/ MICHAEL G. FRIEZE Director
- ---------------------------
Michael G. Frieze
/s/ AVRAM J. GOLDBERG Director
- ---------------------------
Avram J. Goldberg
/s/ KENNETH J. NOVACK Director
- ---------------------------
Kenneth J. Novack
9
<PAGE> 10
/s/ STUART B. ROSS Director
- ---------------------------
Stuart B. Ross
/s/ BILL W. SORENSON Director
- ---------------------------
Bill W. Sorenson
/s/ HERBERT M. STEIN Director
- ---------------------------
Herbert M. Stein
10
<PAGE> 1
EXHIBIT 5
---------
August 12, 1998
OPINION OF COUNSEL
I am General Counsel for EKCO Group, Inc., a Delaware corporation (the
"Corporation"), and I am rendering this opinion in connection with the
preparation and filing by the Corporation on August 13, 1998 of a registration
statement on Form S-8 with the Securities and Exchange Commission in connection
with the offering by the Corporation of 1,000,000 shares of its Common Stock,
par value $.01 per share (the "Shares"), pursuant to the Corporation's 1987
Stock Option Plan.
I have examined such corporate documents and reviewed such applicable law
as I have deemed necessary or relevant as the basis of this opinion. Based upon
such examination and in reliance thereon, it is my opinion that:
1. The Corporation has been duly organized and is validly existing as a
corporation under the laws of the State of Delaware.
2. Each of the Shares to be sold pursuant to the Registration Statement
has been duly authorized by the Corporation and when issued and paid
for as described in the documents comprising the prospectus will be
validly issued and outstanding, fully paid and non-assessable.
Pursuant to the provisions of Section 7 of the Securities Act of 1933, as
amended (the "Act"), I hereby consent to the use of my name in the Registration
Statement and to the filing of this opinion as an exhibit to said Registration
Statement. In giving such consent, I do not thereby concede that I am in the
category of the persons whose consent is required under Section 7 of the Act or
the Rules and Regulations of the Commission thereunder.
Very truly yours,
/S/JOHN JAY ALTHOFF
John Jay Althoff
General Counsel
<PAGE> 1
EXHIBIT 23.2
------------
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
EKCO Group, Inc.
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of EKCO Group, Inc., of our report dated January 29, 1998,
relating to the consolidated balance sheets of EKCO Group, Inc. and
subsidiaries as of December 28, 1997 and December 29, 1996, and the related
consolidated statements of operations, stockholders' equity and cash flows for
each of the fiscal years in the three-year period ended December 28, 1997, and
the related consolidated financial statement schedule, which report is included
in or incorporated by reference in the December 28, 1997 Annual Report on Form
10-K of EKCO Group, Inc.
/S/KPMG PEAT MARWICK LLP
Boston, Massachusetts
August 12, 1998
