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As filed with the Securities and Exchange Commission on June 3, 1999.
Registration No. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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CYBEX INTERNATIONAL, INC.
(Exact name of issuer as specified in its charter)
New York 11-1731581
(State of incorporation) (I.R.S. Employer Identification No.)
10 Trotter Drive, Medway, MA 02053
(Address of Principal Executive Offices)
----------------------------
CYBEX INTERNATIONAL, INC. AMENDED AND RESTATED 1995
STOCK RETAINER PLAN FOR NONEMPLOYEE DIRECTORS
(Full title of the plan)
----------------------------
PETER C. HAINES, President
CYBEX INTERNATIONAL, INC.
10 Trotter Drive
Medway, Massachusetts 02053
(508) 533-4300
(Name, address and telephone number of agent for service)
Copies to:
James H. Carll, Esquire
Archer & Greiner
One Centennial Square
Haddonfield, NJ 08033
(609) 795-2121
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
Securities offering aggregate Amount of
to be Amount to be price per offering Registration
Registered Registered(1) share(2) price Fee
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares
Par value $.10 per share 75,000 shares $5.3125 $398,437.50 $110.77
- ------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(a), this Registration Statement includes such
additional shares of Common Stock as may be issuable by virtue of the anti-
dilution provisions of the Amended And Restated 1995 Stock Retainer Plan
For Nonemployee Directors.
(2) Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee, based upon the average of the high and low prices of the
Registrant's Common Stock as reported on the American Stock Exchange on
June 1, 1999.
Approximate date of commencement of proposed sale to public: As soon as
practicable after the Registration Statement becomes effective. These securities
are being registered pursuant to Rule 415.
<PAGE>
This Registration Statement on Form S-8 is being filed to register,
pursuant to the Securities Act of 1933, as amended, 75,000 additional shares of
the Common Stock of Cybex International, Inc., a New York corporation (the
"Company"), issuable pursuant to the Cybex International, Inc. Amended and
Restated Stock Retainer Plan for Nonemployee Directors. The contents of
Registration Statement on Form S-8, File No. 33-59945 , previously filed by the
Company with the Securities and Exchange Commission, are incorporated by
reference in this Registration Statement and made a part hereof.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
---------
The following Exhibits are filed with this Registration Statement or,
as indicated, incorporated by reference:
Exhibit No. Description
----------- -----------
4 Cybex International, Inc. Amended and Restated
Stock Retainer Plan for Nonemployee Directors, as
amended through May 18, 1999
5 Opinion of Archer & Greiner, P.C. as to legality
of securities to be registered
23.1 Consent of Archer & Greiner, P.C., included in
their opinion as Exhibit 5
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (contained on signature page)
[INTENTIONALLY LEFT BLANK]
2
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
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 City of Medway, and the Commonwealth of Massachusetts on this
eighteenth day of May, 1999.
CYBEX INTERNATIONAL, INC.
By: /s/ Peter C. Haines
---------------------------------
Peter C. Haines, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Each person whose signature to this Registration Statement appears below
hereby appoints Peter C. Haines, William S. Hurley and James H. Carll, and each
of them, any one of whom may act without the joinder of the others, as his
attorney-in-fact to sign on his behalf individually and in the capacity stated
below and to file all amendments and post-effective amendments to this
Registration Statement, and any and all instruments or documents filed as a part
of or in connection with this Registration Statement or the amendments thereto,
and such attorney-in-fact may make such changes and additions to this
Registration Statement as he may deem necessary or appropriate.
Signature Capacity Date
- --------- -------- ----
/s/ Peter C. Haines President May 18, 1999
- ------------------------ and Director
Peter C. Haines (Principal executive
officer)
/s/ William S. Hurley Vice President - Chief Financial May 18, 1999
- ------------------------ Officer
William S. Hurley (Principal financial and
accounting officer)
/s/ John Aglialoro Chairman of the Board May 18, 1999
- ------------------------ and Director
John Aglialoro
/s/ Joan Carter Director May 18, 1999
- ------------------------
Joan Carter
/s/ James H. Carll Director May 18, 1999
- ------------------------
James H. Carll
/s/ Arthur W. Hicks, Jr. Director May 18, 1999
- ------------------------
Arthur W. Hicks, Jr.
/s/ Jerry Lee Director May 18, 1999
- ------------------------
Jerry Lee
/s/ Alan Weingarten Director May 18, 1999
- ------------------------
Alan Weingarten
/s/ Kay Knight Clarke Director May 18, 1999
- ------------------------
Kay Knight Clarke
3
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EXHIBIT INDEX
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Exhibit No. Description Page No.
- ----------- ----------- --------
4 Cybex International, Inc. Amended and
Restated Stock Retainer Plan for
Nonemployee Directors, as amended
through May 18, 1999
5 Opinion of Archer & Greiner, P.C.
as to legality of securities to be registered
23.2 Consent of Arthur Andersen
<PAGE>
EXHIBIT 4
CYBEX INTERNATIONAL, INC.
AMENDED AND RESTATED
1995 STOCK RETAINER PLAN FOR NONEMPLOYEE DIRECTORS
AS AMENDED EFFECTIVE MAY 18, 1999
1. Purpose. The Cybex International, Inc. 1995 Stock Retainer Plan for
Nonemployee Directors (the "Plan") is intended (i) to further the identity of
interests of the directors of Cybex International, Inc. (the "Company") who are
neither officers nor employees of the Company or its subsidiaries ("Nonemployee
Directors") with the interests of the Company's shareholders, (ii) to stimulate
and sustain constructive and imaginative thinking by such Nonemployee Directors,
and (iii) to induce the service or continued service of the most highly
qualified individuals to serve as Nonemployee Directors of the Company.
2. Participants. All Nonemployee Directors are eligible to participate in
the Plan and each such director will participate as described in Section 4
hereof.
3. Common Stock Available under the Plan. The aggregate number of shares
of common stock, $.10 par value per share ("Common Stock"), of the Company that
may issued under this Plan shall be 110,000 shares of Common Stock, which may be
authorized and unissued shares or treasury shares, subject to any adjustments
made in accordance with Section 6 hereof. If any shares of Common Stock issued
pursuant to a Stock Retainer (as defined below) shall, after issuance, be
reacquired by the Company for any reason, such shares may again be issued
pursuant to the Plan, to the extent permitted by Rule 16b-3 (or any successor
rule) promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
4. Stock Retainer. (a) Except as provided herein, from and after January
1, 1998, on December 31 of each calendar year (each, a "Payment Date"), each
person serving as a Nonemployee Director on such Payment Date will, for service
as such, be issued a number of shares of Common Stock ("Stock Retainer") equal
to the quotient obtained by dividing (i) seventy percent (70%) of his annual
retainer (the "Retainer Amount") by (ii) the Fair Market Value (as defined
herein) of a share of Common Stock on January 1 of such calendar year. To the
extent that such calculation does not result in a whole number of shares, the
fractional share shall be rounded upwards to the next whole number so that no
fractional shares shall be issued.
(b) In the event that a Stock Retainer is to be paid on a Payment Date to a
Nonemployee Director who shall have commenced service as a Nonemployee Director
subsequent to the immediately preceding Payment Date, his Stock Retainer shall
be adjusted to reflect the percentage of the year during which such Nonemployee
Director served as such.
<PAGE>
(c) In the event a Nonemployee Director shall cease to serve as a director
of the Company between Payment Dates, such person shall receive a Stock Retainer
equal to the Stock Retainer that would otherwise have been paid on the
immediately following Payment Date had such person continued to serve, adjusted
to reflect the percentage of the year during which such person served as a
Nonemployee Director, and such Stock Retainer shall be paid as soon as
practicable following the date the Nonemployee Director ceases to serve as a
director of the Company.
(d) The stock certificate representing the Stock Retainer shall be
delivered to each Nonemployee Director as soon as practicable following each
Payment Date. After the delivery of the shares, each Nonemployee Director shall
have all the rights of a shareholder with respect to such shares (including the
right to vote such shares and the right to receive all dividends paid with
respect to such shares); provided, however; shares of Common Stock received
pursuant to a Stock Retainer in respect of a Payment Date may not be sold,
transferred, assigned, pledged, hypothecated or otherwise disposed of until at
least six months and one day after such Payment Date.
(e) Notwithstanding the foregoing, no Stock Retainer will be issued to a
Nonemployee Director who is removed for cause, as specified in the Company's
Restated Certificate of Incorporation, as the same may be amended.
5. Fair Market Value. For purposes of this Plan, Fair Market Value shall
be the closing price for the Company's Common Stock on the date of calculation
(or on the last preceding trading date if Common Stock was not traded on the
date of calculation) if the Company's Common Stock is readily tradeable on a
national securities exchange or other market system, and if the Company's Common
Stock is not readily tradeable, Fair Market Value shall mean the amount
determined in good faith by the Board of Directors as the fair market value of
the Common Stock of the Company.
6. Adjustment Provisions.
(a) In the event that any reclassification, split-up or consolidation of
the Common Stock shall be effected, or the outstanding shares of Common Stock
are, in connection with a merger or consolidation of the Company or a sale by
the Company of all or a part of its assets, exchanged for a different number or
class of shares of stock or other securities or property of the Company or for
shares of the stock or other securities or property of any other corporation or
person, or a record date for determination of holders of Common Stock entitled
to receive a dividend payable in Common Stock shall occur, (i) the number and
class of shares that may be issued pursuant to Stock Retainers thereafter paid,
and (ii) the number and class of shares that have not been issued under
effective Stock Retainers, shall in each case be equitably adjusted as
determined by the Board of Directors.
(b) In the event that any spin-off or other distribution of assets of the
Company to its shareholders shall occur, the number and class of shares that may
be issued pursuant to Stock Retainers thereafter paid shall be equitably
adjusted as determined by the Board of Directors.
7. General Provisions.
(a) Nothing in this Plan or in any instrument executed pursuant hereto
shall confer
2
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upon any person any right to continue to serve as a Nonemployee Director of the
Company.
(b) No shares of Common Stock shall be issued pursuant to a Stock Retainer
unless and until all legal requirements applicable to the issuance of such
shares have been complied with in the opinion of counsel to the Company. In
connection with any such issuance, the person acquiring the shares shall, if
requested by the Company, give assurances, satisfactory to counsel to the
Company, in respect of such matters as the Company may deem desirable to assure
compliance with all applicable legal requirements.
(c) No person (individually or as a member of a group), and no beneficiary
or other person claiming under or through him, shall have any right, title or
interest in or to any shares of Common Stock allocated or reserved for the
purposes of this Plan or subject to any Stock Retainer except as to such shares
of Common Stock, if any, as shall have been issued to him.
(d) Nothing in this Plan is intended to be a substitute for, or shall
preclude or limit the establishment or continuation of, any other plan, practice
or arrangement for the payment of compensation or benefits to Nonemployee
Directors that the Company now has or may hereafter put into effect.
(e) It shall be a condition to the obligation of the Company to issue
shares of Common Stock hereunder, that the participant pay to the Company, upon
its demand, such amount as may be requested by the Company for the purpose of
satisfying any liability to withhold federal, state, local or foreign income or
other taxes. If the amount requested is not paid, the Company shall have no
obligation to issue, and the participant shall have no right to receive, shares
of Common Stock.
8. Duration, Amendments and Termination.
(a) No Stock Retainers shall be paid under this Plan with respect to any
period beginning after March 7, 2005. The Board of Directors may amend or
suspend the Plan from time to time or terminate the Plan at any time; provided,
however, that (i) no amendment shall become effective without the approval of
the shareholders of the Company to the extent shareholder approval is required
in order to comply with Rule 16b-3, and (ii) neither the Retainer Amount, nor
any other provision of this Plan affecting the number of shares of Common Stock
receivable pursuant to a Stock Retainer or the frequency with which Stock
Retainers are paid, shall be amended or otherwise modified more than once every
six months, except as may be necessary or appropriate to comport with the
Internal Revenue Code of 1986 or the Employee Retirement Income Security Act of
1974, as either of the same may be amended, or the rules and regulations
promulgated thereunder.
(b) No amendment, suspension or termination of this Plan shall adversely
affect any Stock Retainer theretofore paid.
9. Governing Law. This Plan and actions taken in connection herewith
shall be governed and construed in accordance with the laws of the State of New
York (regardless of the law that might otherwise govern under applicable New
York principles of conflict of laws).
10. Compliance with Rule 16b-3. With respect to persons subject to Section
16 of the Exchange Act, transactions under the Plan are intended to comply with
all applicable
3
<PAGE>
conditions of Rule 16b-3 under the Exchange Act. To the extent any provision of
the Plan fails to so comply, it shall be deemed null and void, to the extent
permitted by law and deemed advisable by the Board of Directors.
11. Effective Date. (a) This Plan was effective as of January 1, 1995 (the
"Effective Date"), the Amendment and Restatement thereof was effective as of
January 1, 1998, and the amendment thereto was effective May 18, 1999.
(b) This Plan shall terminate on March 7, 2005 (unless sooner
terminated by the Board of Directors).
4
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EXHIBIT 5
ARCHER & GREINER
A Professional Corporation
COUNSELORS AT LAW
ONE CENTENNIAL SQUARE
P. O. BOX 3000
HADDONFIELD, NEW JERSEY 08033-0968
June 3, 1999
Cybex International, Inc.
10 Trotter Drive
Medway, Massachusetts 02053
Dear Sirs:
We have examined the corporate records and proceedings of Cybex
International, Inc., a New York corporation, with respect to the legal
sufficiency of all corporate proceedings of such corporation taken in connection
with the creation, form and validity and full payment and non-assessability when
issued of the 75,000 shares of common stock, par value $0.10 per share, covered
by the Registration Statement on Form S-8, dated June 3, 1999, in connection
with which Registration Statement this opinion is rendered.
Based upon such examination, we are of the opinion that when the
Registration Statement shall have been declared effective by order of the
Securities and Exchange Commission, and the shares shall have been issued and
sold upon the terms and conditions set forth in the Registration Statement, such
shares will be validly authorized and legally issued, fully paid, and non-
assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
ARCHER & GREINER
A Professional Corporation
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this S-8 registration statement of our report dated February 12,
1999 included in Cybex International, Inc.'s Form 10-K for the year ended
December 31, 1998.
/s/ ARTHUR ANDERSEN LLP
Philadelphia, Pa.,
June 3, 1999
