SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN BILTRITE INC.
- ----------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation or Organization)
04-1701350
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(I.R.S. Employer Identification No.)
57 River Street, Wellesley Hills, Massachusetts 02481
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(Address of Principal Executive Offices) (Zip Code)
1993 STOCK AWARD AND INCENTIVE PLAN
AS AMENDED AND RESTATED AS OF MARCH 4, 1997
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(Full Title of the Plan)
Roger S. Marcus, Chairman of the Board and Chief Executive Officer
American Biltrite Inc.
57 River Street, Wellesley Hills, Massachusetts 02481
(781) 237-6655
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(Name, Address and Telephone Number of Agent For Service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================================
Title of Amount Proposed Proposed Amount of
Securities to be to be Maximum Maximum Registration
Registered Registered Offering Price Aggregate Fee
Per Share (1) Offering Price
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<S> <C> <C> <C> <C>
Common Stock, par
value $0.01 per 150,000 shares $21.125 (2) $3,168,750 (2) $880.92
share (3)(4)
- -----------------------------------------------------------------------------------------------------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Based on the average of the high and low prices per share of the
Registrant's Common Stock reported on the American Stock Exchange
on August 4, 1999, as set forth in Rules 457(c) and 457(h)(1) under
the Securities Act of 1933, as amended.
(3) The number of shares registered under the Plan is subject to
adjustment by reason of a dividend or other distribution,
recapitalization, stock split, reverse split, reorganization,
merger, consolidation, spin-off, combination, repurchase, share
exchange or other similar corporate transaction or event.
(4) Additional shares issuable under the Plan are covered by a Form S-8
registration statement filed April 4, 1994, as amended by a
post-effective amendment thereto filed June 30, 1994 (File No.
033-77318).
</TABLE>
Exhibit Index Appears on Page 11
Page 1 of 11 Pages
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There is incorporated herein by reference: the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998 (the
"Annual Report") heretofore filed by American Biltrite Inc. (the
"Registrant") with the Securities and Exchange Commission (File No. 1-4773)
pursuant to Section 13(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); the description of the Registrant's Common
Stock contained in the Registrant's registration statement filed under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description; and all other reports filed by the Registrant
pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31,
1998.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this registration
statement and to be part thereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware ("Section 145") permits a corporation 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 action, 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. Section 145 also permits a corporation 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 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, 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. Finally, under
Section 145, 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 the foregoing sentences, 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.
Article XXVIII of the By-laws of the Registrant and the
Restated Certificate of Incorporation of the Registrant state that the
Registrant shall indemnify its directors and officers to the fullest extent
legally permissible under the General Corporation Law of the State of
Delaware in the manner prescribed therein, from time to time, against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection therewith.
The directors and officers of the Registrant are covered by
a policy of insurance under which they are insured, within limits and
subject to certain limitations, against certain expenses in connection with
the defense of actions, suits or proceedings, and certain liabilities which
might be imposed as a result of such actions, suits or proceedings in which
they are parties by reason of being or having been directors or officers,
including actions, suits or proceedings arising out of any actual or
alleged error, misstatement, misleading statement, act or omission, or
neglect or breach of duty. The Registrant is similarly insured, under such
policy, with respect to certain payments it might be required to make to
its directors or officers in accordance with applicable law and the
Registrant's charter provisions relating to indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
- -------- -----------
5 Opinion of Henry W. Winkleman, Esq.
23(1) Consent of Ernst & Young, Auditors
23(2) Consent of Henry W. Winkleman, Esq.
(contained in the opinion filed as Ex-
hibit 5 to this Registration Statement)
24 Power of Attorney (included in the
signature page of this Registration
Statement)
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(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 amend-
ment thereof) which, individually or
in the aggregate, represent a funda-
mental change in the information set
forth in the registration statement.
Notwithstanding the foregoing, any
increase or decrease in the volume of
securities offered (if the total
dollar value of the securities offered
would not exceed that which was regis-
tered) and any deviation from the low
or high end of the estimated maximum
offering range may be reflected in the
form of a prospectus filed with the
Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in
volume and price represent no more
than 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
statement or any material change to such
information in the registration statement;
provided, however, that paragraph (1)(i) and (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 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 securi-
ties at that time shall be deemed to be the ini-
tial 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.
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 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this 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.
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 provisions described
under Item 6 above, 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Wellesley Hills, Commonwealth of
Massachusetts, on this 6th day of August, 1999.
AMERICAN BILTRITE INC.
By: /s/ Gilbert K. Gailius
--------------------------
Gilbert K. Gailius
Vice President - Finance and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each officer or director of
American Biltrite Inc. whose signature appears below constitutes and
appoints Richard G. Marcus and Henry W. Winkleman, and each of them, with
full power to act without the other, his or her true and lawful
attorneys-in-fact and agents, with full and several power of substitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments, including post-effective
amendments, and supplements to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and
about the premises, as fully and to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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.
Name Title Date
---- ----- ----
Chairman of the August 6, 1999
/s/ Roger S. Marcus Board, Chief
- --------------------------- Executive Officer
Roger S. Marcus and Director
President, Chief August 6, 1999
/s/ Richard G. Marcus Operating Officer
- --------------------------- and Director
Richard G. Marcus
Vice President - August 6, 1999
/s/ Gilbert K. Gailius Finance, Chief
- --------------------------- Financial Officer
Gilbert K. Gailius and Director
Director August 6, 1999
/s/ William M. Marcus
- --------------------------
William M. Marcus
Director August 6, 1999
/s/ Frederick H. Joseph
- --------------------------
Frederick H. Joseph
Director August 6, 1999
/s/ John C. Garrels, 3rd
- ---------------------------
John C. Garrels, 3rd
Director August 6, 1999
/s/ Kenneth I. Watchmaker
- ---------------------------
Kenneth I. Watchmaker
Director August 6, 1999
/s/ Mark N. Kaplan
- ---------------------------
Mark N. Kaplan
Director August 6, 1999
/s/ James S. Marcus
- ---------------------------
James S. Marcus
Director August 6, 1999
/s/ Natalie S. Marcus
- ---------------------------
Natalie S. Marcus
EXHIBIT INDEX
Exhibit
Number Page No.
5 Opinion of Henry W. Winkleman,
Esq.
23(1) Consent of Ernst & Young,
Auditors
23(2) Consent of Henry W. Winkleman,
Esq. (contained in the opinion
filed as Exhibit 5 to this
Registration Statement)
24 Power of Attorney (included in
the signature page of this
Registration Statement)
EXHIBIT 5
[American Biltrite Inc. Letterhead]
August 6, 1999
Securities and Exchange Commission
450 Fifth Street
Washington, D.C. 20549
Re: American Biltrite Inc. -
Registration on Form S-8
Ladies and Gentlemen:
I have acted as Corporate Counsel to American Biltrite Inc., a
Delaware corporation (the "Company"), in connection with the offering by
the Company of up to an additional 150,000 shares (the "Shares") of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"),
pursuant to the Company's 1993 Stock Award and Incentive Plan As Amended
and Restated as of March 4, 1997 (the "Plan")(1).
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act
of 1933, as amended (the "Act").
In connection with this opinion, I have examined originals or
copies, certified or otherwise identified to my satisfaction, of (i) the
Registration Statement on Form S-8 with respect to the Shares as filed with
the Securities and Exchange Commission (the "Commission") on August 6, 1999
under the Act (such Registration Statement, as amended, being hereinafter
referred to as the "Registration Statement"); (ii) a specimen certificate
representing the Common Stock; (iii) the Restated Certificate of
Incorporation of the Company, as presently in effect; (iv) the By-Laws of
the Company, as presently in effect; and (v) certain resolutions of the
Board of Directors of the Company relating to the adoption of the Plan and
the issuance and sale of the Shares pursuant thereto. I have also examined
originals or copies, certified or otherwise identified to my satisfaction,
of such records of the Company and such agreements, certificates of public
officials, certificates of officers or other representatives of the Company
and others, and such other documents, certificates and records as I have
deemed necessary or appropriate as a basis for the opinions set forth
herein.
-------------------
(1) Additional shares issuable under the Plan are covered by
a Form S-8 registration statement filed April 4, 1994 as
amended by a post-effective amendment thereto filed June
30, 1994 (File No. 033-77318).
___________________________
In my examination, I have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to me as originals, the conformity to original
documents of all documents submitted to me as certified, conformed or
photostatic copies and the authenticity of the originals of such latter
documents. In making my examination of documents executed or to be
executed by parties other than the Company, I have assumed that such
parties had or will have the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution
and delivery by such parties of such documents and the validity and binding
effect thereof. As to any facts material to the opinions expressed herein
which I have not independently established or verified, I have relied upon
statements and representations of officers and other representatives of the
Company and others.
I am admitted to the bar in the Commonwealth of Massachusetts,
and I do not express any opinion as to the laws of any other jurisdiction.
Based upon and subject to the foregoing, I am of the opinion that
the issuance and sale of the Shares has been duly authorized, and when (i)
the Registration Statement becomes effective; and (ii) certificates
representing the Shares in the form of the specimen certificate
representing the Common Stock examined by me have been (A) manually signed
by an authorized officer of the transfer agent and registrar for the Common
Stock and registered by such transfer agent and registrar, and (B)
delivered to and paid for by the optionholder at a price per share not less
than the per share par value of the Common Stock, the issuance and sale of
the Shares will have been duly authorized, and the Shares will be validly
issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving this
consent, I do not thereby admit that I am included in the category of
persons whose consent is required under Section 7 of the Act or the rules
and regulations of the Commission.
Very truly yours,
American Biltrite Inc.
/s/ Henry W. Winkleman
Henry W. Winkleman
Vice President and General Counsel
EXHIBIT 23(1)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1993 Stock Award and Incentive Plan
as Amended and Restated as of March 4, 1997 of American Biltrite Inc. of
our report dated March 8, 1999, with respect to the consolidated financial
statements and schedule of American Biltrite Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
August 3, 1999
