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As filed with the Securities and Exchange Commission on November 17, 2000
Registration Statement No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________________________
BROOKTROUT, INC.
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS 04-2814792
(State of Organization) (I.R.S. Employer Identification No.)
250 FIRST AVENUE, SUITE 300
NEEDHAM, MASSACHUSETTS 02494
(Address of Principal Executive Offices)
BROOKTROUT, INC.
1992 STOCK INCENTIVE PLAN, AS AMENDED
AND
BROOKTROUT, INC.
AMENDED AND RESTATED 1992 STOCK PURCHASE PLAN
(FULL TITLE OF THE PLANS)
=============================
ERIC R. GILER
President
Brooktrout, Inc.
250 First Avenue, Suite 300
Needham, Massachusetts 02494
(781) 449-4100
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
_____________________________
With copy to:
THOMAS P. STORER, P.C.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
_____________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Title of Securities To Be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Share(4) Aggregate Offering Price Registration Fee
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 800,000 shares (2) $13.00 $10,400,000 $2,746
$.01 par value per share 75,000 shares (3) $11.05 $ 828,750 $ 219
------
$2,965
===================================================================================================================================
</TABLE>
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plans described herein.
(2) Shares being registered under the Brooktrout, Inc. 1992 Stock Incentive
Plan, as amended.
(3) Shares being registered under the Brooktrout, Inc. Amended and Restated
1992 Stock Purchase Plan.
(4) This estimate is made pursuant to Rule 457(c) and (h) under the Securities
Act solely for the purpose of determining the amount of the registration
fee. The registration fee is based upon the average of the high and low
prices for the Registrant's Common Stock, par value $.01 per share, as
reported on the NASDAQ National Market on November 13, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference the following documents
that have previously been filed with the Securities and Exchange Commission (the
"Commission"):
(a) the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(b) Quarterly Reports on Form 10-Q, as amended, for the quarters
ended March 31, 2000 and June 30, 2000, and Quarterly Report on Form 10-Q for
the quarter ended September 30, 2000, each filed with the Commission pursuant to
the Exchange Act; and
(c) the description of the Registrant's common stock, par value $.01
per share, contained in the Registrant's Registration Statement on Form 8-A
dated October 1, 1992, as amended, and filed with the Commission pursuant to
Section 12 of the Exchange Act.
In addition, all documents subsequently filed with the Commission by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment hereto
which indicates that all securities offered hereunder 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 a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
subsequently filed document which also is incorporated by reference herein
modifies or supersedes such statement. Any 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 Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Goodwin, Procter & Hoar LLP, Boston, Massachusetts, will pass upon the
validity of the shares offered hereby. Thomas P. Storer, a partner of such firm,
is Assistant Clerk of Brooktrout, Inc.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 67 of Chapter 156B of the Massachusetts General Laws ("Section 67")
provides that a corporation may indemnify its directors and officers to the
extent specified in or authorized by (i) the articles of organization, (ii) a
by-law adopted by the stockholders, or (iii) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election of directors.
In all instances, the extent to which a corporation provides indemnification to
its directors and officers under Section 67 is optional. In its By-laws the
Registrant has elected to commit to provide indemnification to its Directors and
Officers in specified circumstances. Generally, Article IV of the Registrant's
By-laws indemnifies Directors and Officers of the Registrant against liability
and expenses arising out of legal proceedings brought against them by reason of
their status or service as Directors or Officers or by reason of their agreeing
to serve, at the request of the Registrant, as a director or officer of, or in a
similar capacity with, another organization or in any capacity with respect to
any employee benefit plan of the Registrant. Under this provision, a Director or
Officer of the Registrant shall be indemnified by the Registrant for all
expenses, judgments, fines and amounts paid in settlement of such proceedings,
even if he or she is not successful on the merits, if he or she acted in good
faith and in a manner he or she reasonably believed to be in the best interests
of the Registrant.
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The Registrant's By-laws establish the presumption that the Director or
Officer has met the applicable standard of conduct required for indemnification.
The indemnification above shall be made unless the Board of Directors,
stockholders or independent counsel determines that the applicable standard of
conduct has not been met. Such a determination shall be made by a majority vote
of a quorum of the Directors or the stockholders, independent legal counsel or a
court of competent jurisdiction. The Board of Directors shall authorize
advancing litigation expenses to a Director or Officer at his or her request
upon receipt of an undertaking by such Director or Officer to repay such
expenses if it is ultimately determined that he or she is not entitled to
indemnification for such expenses.
The Registrant's By-laws also provide that, in the event of a determination
by the Board of Directors, stockholders or independent legal counsel that a
Director or Officer did not meet the standard of conduct required for
indemnification, or if the Registrant fails to make an indemnification payment
or an advance of expenses within 60 days after such payment is claimed by a
Director or Officer, such Director or Officer may petition a court to make an
independent determination of whether such Director or Officer is entitled to
indemnification. The Registrant's By-laws explicitly provide for partial
indemnification of costs and expenses in the event that a Director or Officer is
not entitled to full indemnification.
Article VI.D of the Registrant's Restated Articles of Organization
eliminates the personal liability of the Registrant's Directors to the
Registrant or its stockholders for monetary damages for breach of a Director's
fiduciary duty, except to the extent Chapter 156B of the Massachusetts General
Laws prohibits the elimination or limitation of such liability.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the foregoing provisions, the Commission has expressed
its opinion that such indemnification is against public policy as expressed in
such Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
Exhibits
--------
*4.1 Brooktrout, Inc. 1992 Stock Incentive Plan, as amended, previously
filed as Exhibit 10.1 to Brooktrout, Inc.'s Registration Statement on
Form S-8 filed with the Commission on September 19, 1996, File
No.333-12313
*4.2 Second Amendment to Brooktrout, Inc. 1992 Stock Incentive Plan
previously filed as Exhibit 4.2 to Brooktrout, Inc.'s Registration
Statement on Form S-8 filed with the Commission on September 4, 1998,
File No. 333-62959
*4.3 Third Amendment to Brooktrout, Inc. 1992 Stock Incentive Plan
previously filed as Exhibit 4.3 to Brooktrout, Inc.'s Registration
Statement on Form S-8 filed with the Commission on October 12, 1999,
File No. 333-88803
4.4 Fourth Amendment to Brooktrout, Inc. 1992 Stock Incentive Plan
*4.5 Brooktrout, Inc. Amended and Restated 1992 Stock Purchase Plan
previously filed as Exhibit 4.3 to Brooktrout, Inc.'s Registration
Statement on Form S-8 filed with the Commission on September 4, 1998,
File No. 333-62959
*4.6 First Amendment to Brooktrout, Inc. Amended and Restated 1992 Stock
Purchase Plan previously filed as Exhibit 4.4 to Brooktrout, Inc.'s
Registration Statement on Form S-8 filed with the Commission on
September 4, 1998, File No. 333-62959
4.7 Second Amendment to Brooktrout, Inc. Amended and Restated 1992 Stock
Purchase Plan
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP, Independent Auditors
24.1 Powers of Attorney (included on signature page to this Registration
Statement)
*Incorporated by reference.
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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,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 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 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 Section 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 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.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any financial
statements required by Item 8.A. of Form 20-F at the start of any delayed
offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided, that the registrant includes in the prospectus, by means of
a post-effective amendment, financial statements required pursuant to this
paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements
and information are contained in periodic reports filed with or furnished to the
Commission 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 Form
F-3.
(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 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 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.
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(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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Brooktrout,
Inc. 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 Needham, Commonwealth of Massachusetts on this 15th
day of November, 2000.
Brooktrout, Inc.
By: /s/ Eric R. Giler
------------------------------------
Eric R. Giler
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints each of Eric R. Giler, David W. Duehren
and Robert C. Leahy, and each of them acting singly, such person's true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for such person and in such person's name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto each said attorney-in-fact and agent 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 to all intents and
purposes as such person might or could do in person, hereby ratifying and
confirming all that any said attorney-in-fact and agent, or any substitute or
substitutes of any of them, 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 below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Eric R. Giler President and Director November 15, 2000
-------------------------------- (Principal Executive Officer)
Eric R. Giler
/s/ David W. Duehren Vice President of Research and November 15, 2000
-------------------------------- Development, Clerk and Director
David W. Duehren
/s/ Robert C. Leahy Vice President of Finance and Operations, and Treasurer November 15, 2000
-------------------------------- (Principal Financial and Accounting Officer)
Robert C. Leahy
/s/ Robert G. Barrett Director November 15, 2000
--------------------------------
Robert G. Barrett
/s/ David L. Chapman Director November 15, 2000
--------------------------------
David L. Chapman
/s/ W. Brooke Tunstall Director November 15, 2000
--------------------------------
W. Brooke Tunstall
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION SEQUENTIAL PAGE
----------- ----------- ---------------
<S> <C> <C>
*4.1 Brooktrout, Inc. 1992 Stock Incentive Plan, as amended, previously filed as Exhibit 10.1 to __
Brooktrout, Inc.'s Registration Statement on Form S-8 filed with the Commission on
September 19, 1996, File No.333-12313
*4.2 Second Amendment to Brooktrout, Inc. 1992 Stock Incentive Plan previously filed as Exhibit __
4.2 to Brooktrout, Inc.'s Registration Statement on Form S-8 filed with the Commission on
September 4, 1998, File No. 333-62959
*4.3 Third Amendment to Brooktrout, Inc. 1992 Stock Incentive Plan previously filed as Exhibit __
4.3 to Brooktrout, Inc.'s Registration Statement on Form S-8 filed with the Commission on
October 12, 1999, File No. 333-88803
4.4 Fourth Amendment to Brooktrout, Inc. 1992 Stock Incentive Plan 8
*4.5 Brooktrout, Inc. Amended and Restated 1992 Stock Purchase Plan previously filed as Exhibit __
4.3 to Brooktrout, Inc.'s Registration Statement on Form S-8 filed with the Commission on
September 4, 1998, File No. 333-62959
*4.6 First Amendment to Brooktrout, Inc. Amended and Restated 1992 Stock Purchase Plan __
previously filed as Exhibit 4.4 to Brooktrout, Inc.'s Registration Statement on Form S-8
filed with the Commission on September 4, 1998, File No. 333-62959
4.7 Second Amendment to Brooktrout, Inc. Amended and Restated 1992 Stock Purchase Plan 9
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the securities being registered 10
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1) __
23.2 Consent of Deloitte & Touche LLP, Independent Auditors 11
24.2 Powers of Attorney (included on signature page to this Registration Statement) __
</TABLE>
*Incorporated by reference.
7
