As filed with the Securities and Exchange Commission on June 27, 1997
Registration Statement No. 333-_______
=====================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
THE GOOD GUYS, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-2366177
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7000 Marina Boulevard, Brisbane, California 94005-1840
(Address of Principal Executive Offices) (Zip Code)
Employee Stock Purchase Plan
(Full title of the plan)
Dennis C. Carroll, Chief Financial Officer
The Good Guys, Inc.
7000 Marina Boulevard
Brisbane, California 94005-1840
(Name and address of agent for service)
(415) 615-5000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
_____________________________________________________________________________
Title of
Securities Amount to Proposed Maximum Proposed Maximum Amount of
to be be Offering Price Aggregate Registration
Registered Registered per Share Offering Price Fee
Common Stock,
par value $.001
per share:
Employee
Stock
Purchase Plan 600,000 $5.84* $3,504,000* $1,061.82
*Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457, on the basis of the average of the high and low prices of the
Registrant's Common Stock as reported on the Nasdaq National Market on
June 24, 1997.<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by
reference in this registration statement:
(a) Registrant's Annual Report on Form 10-K for
the fiscal year ended September 30, 1996,
filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(b) All other reports, if any, filed by Registrant
pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year
ended September 30, 1996;
(c) The description of Registrant's Common Stock
contained in the Registration Statement on
Form 8-A filed with the Commission on
February 6, 1986 under Section 12 of the
Exchange Act, including any amendment or
report filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after
the date of this registration statement and prior to the
filing of a post-effective amendment to this registration
statement which indicates that all securities offered
hereunder have been sold, or which deregisters all securities
then remaining unsold under this registration statement,
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.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable; the class of securities to be
offered is registered under Section 12 of the Exchange Act.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by sections 102 and 145 of the
Delaware General Corporation Law, the Registrant's
certificate of incorporation eliminates a director's personal
-1-<PAGE>
liability for monetary damages to the Registrant and its
stockholders arising from a breach or alleged breach of a
director's fiduciary duty, except for liability under
section 174 of the Delaware General Corporation Law or
liability for any breach of the director's duty of loyalty to
the Registrant or its stockholders, for acts or omissions not
in good faith or which involve intentional misconduct or a
knowing violation of law, or for any transaction from which
the director derived an improper personal benefit. The
effect of this provision in the certificate of incorporation
is to eliminate the rights of the Registrant and its
stockholders (through stockholders' derivative suits on
behalf of the Registrant) to recover monetary damages against
a director for breach of fiduciary duty as a director
(including breaches resulting from negligent or grossly
negligent behavior) except in the situations described above.
The Registrant's bylaws provide for indemnification
of officers, directors and employees, and the Company has
entered into an indemnification agreement with each officer
and director of the Registrant (an "Indemnitee"). Under the
bylaws and such indemnification agreements, the Registrant
must indemnify an Indemnitee to the fullest extent permitted
by Delaware law for losses and expenses incurred in
connection with actions in which the Indemnitee is involved
by reason of having been a director or employee of the
Registrant. The Registrant is also obligated to advance
expenses an Indemnitee may incur in connection with such
actions before any resolution of the action, and the
Indemnitee may sue to enforce his or her right to
indemnification or advancement of expenses.
The Registrant also maintains an insurance policy
insuring its directors and officers against liability for
certain acts and omissions while acting in their official
capacities.
There is no litigation pending, and neither the
Registrant nor any of its directors know of any threatened
litigation, which might result in a claim for indemnification
by any director or officer.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
Exhibit
Number Description of Document
4.1 Employee Stock Purchase Plan, as amended.
-2-<PAGE>
5.1 Opinion of Howard, Rice, Nemerovski, Canady, Falk &
Rabkin, A Professional Corporation.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Howard, Rice, Nemerovski, Canady, Falk &
Rabkin, A Professional Corporation (included in
Exhibit 5.1).
24.1 Powers of Attorney.
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% 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.
-3-<PAGE>
Provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do 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 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 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
(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.
(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,
-4-<PAGE>
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.
-5-<PAGE>
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 of 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 Brisbane, State of California on the
27th day of June, 1997.
THE GOOD GUYS, INC.
By /s/ Robert A. Gunst
_____________________________________
Robert A. Gunst
President and Chief Executive Officer
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.
/s/ Robert A. Gunst Director, President June 27, 1997
_______________________ and Chief Executive
(Robert A. Gunst) Officer (Principal
Executive Officer)
/s/ Dennis C. Carroll Vice President, Chief June 27, 1997
_______________________ Financial Officer and
(Dennis C. Carroll) Secretary (Principal
Financial Officer and
Principal Accounting
Officer)
STANLEY R. BAKER* Director June 27, 1997
_______________________
(Stanley R. Baker)
RUSSELL M. SOLOMON* Director June 27, 1997
_______________________
(Russell M. Solomon)
JOHN E. MARTIN* Director June 27, 1997
_______________________
(John E. Martin)
W. HOWARD LESTER* Director June 27, 1997
_______________________
(W. Howard Lester)
*By /s/ Robert A. Gunst
___________________
Robert A. Gunst,
Attorney-in-Fact
-6-<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Document
4.1 Employee Stock Purchase Plan, as amended.
5.1 Opinion of Howard, Rice,
Nemerovski, Canady, Falk & Rabkin,
A Professional Corporation.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Howard, Rice,
Nemerovski, Canady, Falk & Rabkin,
A Professional Corporation
(included in Exhibit 5.1).
24.1 Powers of Attorney.
-7-<PAGE>
Exhibit 4.1
THE GOOD GUYS, INC.
EMPLOYEE STOCK PURCHASE PLAN
(as amended through February 1997)
1. PURPOSE:
The Good Guys, Inc. EMPLOYEE STOCK PURCHASE PLAN
(the "Plan") is designed to foster continued cordial employee
relations, to encourage and assist its employees and the
employees of any present or future subsidiaries in acquiring
a stock ownership interest in The Good Guys, Inc. (the
"Corporation") and to help them provide for their future
security. The Plan is intended to be an Employee Stock
Purchase Plan under Internal Revenue Code Section 423.
2. STOCK SUBJECT TO THE PLAN:
Subject to adjustment pursuant to Section 12 of the
Plan, the aggregate number of shares of Common Stock (the
"shares") which may be sold under the Plan is 2,500,000. The
shares may be authorized, but unissued, or reacquired shares
of Common Stock of the Corporation. The Corporation, during
the term of the Plan, shall at all times reserve and keep
available, such number of shares as shall be sufficient to
satisfy the requirements of the Plan.
3. BI-ANNUAL PERIODS:
Bi-annual period shall mean the six-month periods
ending on the last day of June and December of each year,
provided that the first period under this Plan shall commence
on the day on which the Corporation's Form S-1 Registration
Statement covering the initial public offering of its Common
Stock becomes effective (the "effective date") and shall end
on the later of June 30, 1986 or the day which is 120 days
after the effective date. The second period under this Plan
shall commence on the day after the end of the final period
and shall end on December 31, 1986.
4. ELIGIBILITY:
Anyone who becomes an employee of the Corporation
or any of its subsidiaries (except those employees who own or
hold options to purchase five percent (5%) or more of the
capital stock of the Corporation or any subsidiary of the
Corporation at the start of any bi-annual period), those
employees whose customary employment is less than 20 hours
per week, and those employees whose customary employment is
-1-<PAGE>
for not more than 5 months in any calendar year) is eligible
to become a member of the Plan on the first day of the
bi-annual period following the commencement of service.
Notwithstanding the foregoing, no employee shall be entitled
to purchase (i) shares of stock under the Plan and all other
purchase plans of the Corporation and any parent or
subsidiary of the Corporation with an aggregate fair market
value (determined at date of grant) exceeding $25,000 per
year for each calendar year in which such option is
outstanding at any time, or (ii) more than 2,000 shares of
stock under the Plan in any bi-annual period.
For purposes of this Plan, "subsidiary" shall mean
a corporation of which not less than fifty percent (50%) of
the voting shares are held by the Corporation or a subsidiary
of the Corporation.
5. JOINING THE PLAN:
Any eligible employee's participation in the Plan
shall be effective as of the first day of the bi-annual
period following the day on which the employee completes,
signs, and returns to the Corporation, or one of its present
or future subsidiaries, a Stock Purchase Plan Application and
Payroll Deduction Authority form indicating his or her
acceptance and agreement to the Plan. Membership of any
employee in the Plan is entirely voluntary.
Any employee receiving shares shall have no rights
with respect to continuation of employment, nor with respect
to continuation of any particular Corporation business,
policy or product.
6. MEMBER'S CONTRIBUTIONS:
Each member shall elect to make contributions by
payroll deduction of two percent (2%), five percent (5%) or
ten percent (10%) of his or her gross compensation.
Subject to the maximum described above, a member
may elect in writing to increase or decrease his or her rate
of contribution; such change will become effective the first
day of the bi-annual period following receipt by the
Corporation of such written election.
The amount of each member's contribution shall be
held by the Corporation in a special account and such
contributions, free of any obligation of the Corporation to
pay interest thereon, shall be credited to such member's
individual account as of the last day of the month during
which the compensation from which the contributions were
deducted was earned.
-2-<PAGE>
No member will be permitted to make contributions
for any period during which he or she is not receiving pay
from the Corporation or one of its present or future
subsidiaries.
7. ISSUANCE OF SHARES:
On the last trading day of each bi-annual period so
long as the Plan shall remain in effect, and provided the
member has not before that date advised the Corporation that
he or she does not wish shares purchased for his or her
account on that date, the Corporation shall apply the funds
credited to the member's account as of that date to the
purchase of authorized but unissued shares of its Common
Stock in units of one share or multiples thereof.
The cost to each member for the shares so purchased
shall be eighty-five percent (85%) of the lower of:
1. With respect to the first bi-annual period,
the price at which the Common Stock of the Corporation is
first offered to the public; thereafter, the mean between the
average bid and ask prices of the stock in the
over-the-counter market as quoted on the National Association
of Security Dealers Automatic Quotation System (NASDAQ), or
if its stock is a National Market Issue the last sales price
of the stock, or if the stock is traded on one or more
securities exchanges the average of the closing prices on all
such exchanges, on the first trading day of the bi-annual
period; or
2. The mean between the average bid and ask
prices of the stock in the over-the-counter market as quoted
on the National Association of Securities Dealers Automatic
Quotation System (NASDAQ) or if the stock is a National
Market issue the last sales price of the stock, or if the
stock is traded on one or more securities exchanges the
average of the closing prices on all such exchanges on the
last trading day of the bi-annual period.
Any moneys remaining in such member's account
equaling less than the sum required to purchase one share
shall, unless otherwise requested by the member, be held in
the member's account for use during the next bi-annual
period. Any moneys remaining in such member's account by
reason of his or her prior election not to purchase shares in
a given bi-annual period, as aforesaid, or moneys remaining
in such member's account by reason of application of the
provisions of the next paragraph hereof, shall be promptly
returned to the member. The Corporation shall as
expeditiously as possible after the last day of each
bi-annual period issue to the member entitled thereto the
-3-<PAGE>
certificate evidencing the shares issuable to him or her as
provided herein.
Notwithstanding anything above to the contrary,
(a) if the number of shares all members desire to purchase at
the end of any bi-annual period exceeds the number of shares
then available under the Plan, the shares available shall be
allocated among such members in proportion to their
contributions during the bi-annual period; and (b) no funds
in an employee's account shall be applied to the purchase of
shares and no shares hereunder shall be issued unless such
shares are covered by an effective registration statement
under the Securities Act of 1933, as amended, or by an
exemption therefrom.
8. TERMINATION OF MEMBERSHIP:
A member's membership in the Plan will be
terminated when the member (a) voluntarily elects to withdraw
his or her entire account, (b) resigns or is discharged from
the Corporation or one of its present or future subsidiaries,
(c) dies, or (d) does not receive pay from the Corporation or
one of its present or future subsidiaries for twelve (12)
consecutive months, unless this period is due to illness,
injury or for other reasons approved by the persons or person
appointed by the Corporation to administer the Plan as
provided in Paragraph 10 below. Upon termination of
membership, the terminated member shall not be entitled to
rejoin the Plan until the first day of the bi-annual period
immediately following the bi-annual period in which the
termination occurs. Upon termination of membership, the
member shall be entitled to the amount of his or her
individual account within fifteen (15) days after
termination.
9. BENEFICIARY:
Each member shall designate a beneficiary or
beneficiaries and may, without their consent, change his or
her designation. Any designation shall be effective only
after it is received by the Corporation and shall become
effective as of the date it is signed and shall be
controlling over any disposition by will or otherwise.
Upon the death of a member his or her account shall
be paid or distributed to the beneficiary or beneficiaries
designated by such member, or in the absence of such
designation, to the executor or administrator of his or her
estate, and in either event the Corporation shall not be
under any further liability to anyone. If more than one
beneficiary is designated, then each beneficiary shall
receive an equal portion of the account unless the member
-4-<PAGE>
indicates to the contrary in his or her designation, provided
that the Corporation may in its sole discretion make
distributions in such form as will avoid the creation of
fractional shares.
10. ADMINISTRATION OF THE PLAN:
The Plan shall be administered by such officers or
other employees of the Corporation as the Corporation may
from time to time select, and the persons so selected shall
be responsible for the administration of the Plan. All costs
and expenses incurred in administering the Plan shall be paid
by the Corporation. Any taxes applicable to the member's
account shall be charged or credited to the member's account
by the Corporation.
11. MODIFICATION AND TERMINATION:
The Corporation expects to continue the Plan until
such time as the shares reserved for issuance under the Plan
have been sold. The Corporation reserves, however, the right
to amend, alter, or terminate the Plan in its discretion.
Upon termination, each member shall be entitled to the amount
of his or her individual account within thirty (30) days
after termination.
12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION:
Appropriate and proportionate adjustments shall be
made in the number and class of shares of stock subject to
this plan, and to the rights granted hereunder and the prices
applicable to such rights, in the event of a stock dividend,
stock split, reverse stock split, recapitalization,
reorganization, merger, consolidation, acquisition,
separation, or like change in the capital structure of the
Corporation.
13. ASSIGNABILITY OF RIGHTS:
No rights of any employee under this Plan shall be
assignable by him or her, by operation of law, or otherwise,
except to the extent that a member is permitted to designate
a beneficiary or beneficiaries as hereinabove provided, and
except to the extent permitted by the law of descent and
distribution if no such beneficiary be designated. Prior to
the issuance of any shares under this Plan, each employee
member shall be required to sign a statement as set forth in
Exhibit "A" attached hereto and incorporated herein.
-5-<PAGE>
14. PARTICIPATION IN OTHER PLANS:
Nothing herein contained shall affect an employee's
right to participate in and receive benefits under and in
accordance with the then current provisions of any pension,
insurance, or other employee welfare plan or program of the
Corporation.
15. APPLICABLE LAW:
The interpretation, performance, and enforcement of
this Plan shall be governed by the laws of the State of
California.
16. EFFECTIVE DATE OF PLAN; SHAREHOLDER APPROVAL:
The Plan shall become effective upon adoption by
the Board and approval by the shareholders of the
Corporation.
17. LEGEND CONDITIONS:
The share of Common Stock to be issued pursuant to
the provisions of this Plan shall have endorsed upon their
face the following:
1. Any legend condition imposed as a
condition of qualification by the California
Commissioner of Corporations;
2. Unless the shares to be issued under this
Plan have been registered under the Securities Act of
1933, the following additional legend shall be placed on
the certificates:
"The shares represented by this certificate have
not been registered under the Securities Act of 1933.
The shares have been acquired for investment and may not
be pledged or hypothecated, and may not be sold or
transferred in the absence of an effective Registration
Statement for the shares under the Securities Act of
1933 or an opinion of counsel to the Company that
registration is not required under said Act."
-6-<PAGE>
Exhibit 5.1
June 27, 1997
The Good Guys, Inc.
7000 Marina Boulevard
Brisbane, California 94005-1840
Ladies and Gentlemen:
You have requested our opinion as counsel for The
Good Guys, Inc., a Delaware corporation (the "Company"), in
connection with the registration under the Securities Act of
1933, as amended, and the Rules and Regulations promulgated
thereunder, and the public offering by the Company of up to
600,000 shares of Common Stock issuable under the Company's
Employee Stock Purchase Plan.
We have examined the Company's Registration Statement
of Form S-8 in the form to be filed with the Securities and
Exchange Commission on or about June 27, 1997 (the
"Registration Statement"). We further have examined the
Restated Certificate of Incorporation of the Company as
certified by the Secretary of State of the State of Delaware,
the Bylaws and the minute books of the Company as a basis for
the opinion hereafter expressed.
Based on the foregoing examination, we are of the
opinion that, upon issuance and sale in the manner described
in the Registration Statement, the shares of Common Stock
covered by the Registration Statement will be legally issued,
fully paid and nonassessable.<PAGE>
The Good Guys, Inc.
June 27, 1997
Page 2
We consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
HOWARD, RICE, NEMEROVSKI,
CANADY, FALK & RABKIN
A Professional Corporation
By /s/ Horace L. Nash
___________________________
HORACE L. NASH<PAGE>
Exhibit 23.1
[Letterhead of Deloitte & Touche LLP]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of The Good Guys, Inc. on Form S-8 of
our report dated November 20, 1996, appearing in and
incorporated by reference in the Annual Report on Form 10-K
of The Good Guys, Inc. for the year ended September 30, 1996.
Deloitte & Touche LLP
June 27, 1997<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person
whose signature appears below, being a member of the Board of
Directors of The Good Guys, Inc. (the "Company"), hereby
constitutes and appoints Robert A. Gunst and Dennis C.
Carroll, and each of them, as his true and lawful attorney-
in-fact and agent, with full power of substitution and
resubstitution, for and in his name, place and stead, in any
and all capacities, to sign on his behalf the Company's
Registration Statement on Form S-8 with respect to an
additional 600,000 shares of the Company's common stock
issuable under the Company's Employee Stock Purchase Plan,
and to execute any amendments thereto, and to file the same,
with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange
Commission, with the full power and authority to do and
perform each and every act and thing necessary or advisable
to be done in connection therewith, as fully to all intents
and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
DATED: November 19, 1996
/s/ STANLEY R. BAKER
_______________________________
Stanley R. Baker
/s/ ROBERT A. GUNST
_______________________________
Robert A. Gunst
/s/ RUSSELL M. SOLOMON
_______________________________
Russell M. Solomon
/s/ W. HOWARD LESTER
_______________________________
W. Howard Lester
/s/ JOHN E. MARTIN
_______________________________
John E. Martin<PAGE>
