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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 21, 1998
REGISTRATION NO. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BALDWIN PIANO & ORGAN COMPANY
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(Exact name of registrant as specified in its charter)
DELAWARE 31-1091812
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
422 WARDS CORNER ROAD
LOVELAND, OHIO 45140-8390
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(Address of principal executive
offices including zip code)
BALDWIN PIANO & ORGAN COMPANY 1998 OMNIBUS STOCK PLAN
(Full title of the plan)
RONALD W. KRUSE
BALDWIN PIANO & ORGAN COMPANY
422 WARDS CORNER ROAD
LOVELAND, OHIO 45140-8390
(513) 576-4500
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(Name, address and telephone number of agent for service)
Copy To:
RICHARD G. SCHMALZL, ESQ.
DOUGLAS D. ROBERTS, ESQ.
GRAYDON, HEAD & RITCHEY
1900 FIFTH THIRD CENTER
511 WALNUT STREET
CINCINNATI, OHIO 45202
(513) 621-6464
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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<S> <C> <C> <C> <C>
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SHARE PRICE FEE
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Common Stock, $.01 200,000 shares $10.8125(1) $2,162,500(1) $432.50(1)
par value
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</TABLE>
(1) Calculated in accordance with Rule 457(c) and (h) based upon the average of
the high and low prices of Baldwin Piano & Organ Company common stock on
The Nasdaq National Market as of October 15, 1998.
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Baldwin Piano & Organ Company (the "Registrant") is filing
this Registration Statement on Form S-8 in order to register shares of its
common stock, $.01 par value, relating to the Registrant's 1998 Omnibus Stock
Plan (the "Plan").
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS.
The information required in Part I of this Registration
Statement is not being filed with the Commission in accordance with the
instructions to Form S-8.
Item 1. Plan Information.
The Registrant shall deliver to each participant in the Plan
the information required by this Item 1.
Item 2. Registrant Information and Employee Plan Annual Information.
The Registrant shall provide to each participant in the Plan a
written statement advising them of the availability without charge to each such
participant, upon written or oral request, of the documents incorporated by
reference in the Section 10(a) Prospectus (not including Exhibits to the
documents that are incorporated by reference into the Registration Statement).
Requests for such information shall be made to the Registrant's Secretary, 422
Wards Corner Road, Loveland, Ohio 45140-8390, telephone (513) 576-4500.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT.
Item 3. Incorporation of Documents by Reference.
The documents listed below are incorporated by reference into
this Registration Statement, and all documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part thereof from the date of filing of such
documents; provided, however, than any information set forth in any proxy
statement of the Registrant pursuant to Items 402(k) and/or (l) of Regulation
S-K is specifically not incorporated by reference herein.
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, or either: (1)
the latest prospectus filed pursuant to Rule 424(b) under the Securities Act of
1933 that contains audited financial statements for the Registrant's latest
fiscal year for which statements have been filed, or (2) the Registrant's
effective registration statement on Form 10 or 20-F filed under the Securities
Exchange Act of 1934 containing audited financial statements for the
Registrant's latest fiscal year.
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(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 since the end of the fiscal year covered
by the Registrant's documents referred to in the above paragraph.
(c) The description of the Registrant's common stock contained
in a registration statement filed under the Securities Exchange Act of 1934,
including any amendment or report filed for the purpose of updating such
description.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of common stock being registered
hereby will be passed upon for the Registrant by Graydon, Head & Ritchey,
Cincinnati, Ohio.
The consolidated financial statements of the Registrant as of
December 31, 1997 and 1996, and for each of the years in the three year period
ended December 31, 1997, have been incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
Item 6. Indemnification of Directors and Officers.
The Registrant, being incorporated under the General
Corporation Law of the State of Delaware, is empowered by Section 145 of such
law ("Statute"), subject to the procedures and limitations stated in the
Statute, to indemnify any person ("Indemnitee") against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by the Indemnitee in connection with any threatened,
pending, or completed action, suit, or proceeding to which an Indemnitee is made
a party or threatened to be made a party by reason of the Indemnitee's being or
having been a director, officer, employee, or agent of the Registrant or a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise at the request of the Registrant. The
Statute provides that indemnification pursuant to its provisions is not
exclusive of other rights of indemnification to which a person may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. The Statute also provides that the Registrant may purchase insurance
on behalf of any director, officer, employee, or agent.
Article Eighth of the Registrant's Certificate of
Incorporation contains provisions permitted by Section 102 of the General
Corporation Law of the State of Delaware which eliminate personal liability of
members of its board of directors for violations of their fiduciary duty of
care. Neither the Delaware General Corporation Law nor the Certificate of
Incorporation, however, limits the liability of a director for breaching his
duty of loyalty, failing to act in good faith, engaging in
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intentional misconduct or knowingly violating a law, paying a dividend or
approving a stock repurchase under circumstances where such payment or
repurchase is not permitted under the Statute, or obtaining an improper personal
benefit.
Article VI of the Registrant's Bylaws provides that the
Registrant is obligated to indemnify an Indemnitee in each and every situation
where the Registrant is obligated to make such indemnification pursuant to the
Statute. The Registrant must also indemnify an Indemnitee in each and every
situation where, under the Statute, the Registrant is not obligated but is
nevertheless permitted or empowered to make such indemnification. However,
before making such indemnification with respect to any situation covered by the
preceding sentence, (i) the Registrant shall promptly make or cause to be made,
by any of the methods referred to in subsection (d) of the Statute, a
determination as to whether the Indemnitee acted in good faith and in a manner
such Indemnitee reasonably believed to be in or not opposed to the best
interests of the Registrant, and, in the case of any criminal action or
proceeding, had no reasonable cause to believe that such Indemnitee's conduct
was unlawful, and (ii) no such indemnification shall be made unless it is
determined that such Indemnitee acted in good faith and in a manner such
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Registrant, and, in the case of any criminal action or proceeding, had no
reasonable cause to believe that such Indemnitee's conduct was unlawful.
In addition, the Registrant has entered into contracts
("Contracts") with its directors and officers that (i) confirm the present
indemnity provided to them by the Registrant's Bylaws and give them assurances
that this indemnity will continue to be provided despite future changes in the
Bylaws, (ii) provide that if the Registrant does not continue to maintain its
present directors and officers liability insurance either because the premium
cost becomes disproportionate to the coverage or because there is insufficient
benefit from such insurance on account of exclusions from benefits of its
coverage, the Registrant will, in effect, become a self-insurer of the coverage,
and (iii) provide that, in addition, the directors and officers shall be
indemnified to the fullest extent permitted by law against all expenses
(including attorneys' fees), judgments, fines, and settlement amounts paid or
incurred by them in any action or proceeding, including any action by or in the
right of the Registrant, on account of the Indemnitee's service as a director or
officer of the Registrant or any subsidiary or as a director or officer of any
other company or enterprise when they are serving in such capacities at the
request of the Registrant. However, the Contracts provide that no indemnity will
be provided to any director on account of conduct which is adjudged to be
knowingly fraudulent, deliberately dishonest, or willful misconduct. In
addition, the Contracts provide that no indemnification shall be provided if a
final court adjudication shall determine that such indemnification is not
lawful, or in respect of any suit in which judgment is rendered against a
director for an accounting of profits made from a purchase or sale of securities
of the Registrant in violation of Section 16(b) of the Securities Exchange Act
of 1934 or of any similar statutory law, or on account of any remuneration paid
to a director which is adjudicated to have been paid in violation of law.
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The form of the Contracts was approved by the stockholders on
June 30, 1985, and the Registrant was specifically authorized to enter into such
Contracts with any future director or officer.
The Registrant currently maintains an insurance policy that
provides coverage pursuant to which the Registrant is to be reimbursed for
amounts it may be required or permitted by law to pay to indemnify directors and
officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Description of Exhibit
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4.1 Baldwin Piano & Organ Company 1998 Omnibus Stock Plan*
5.1 Opinion of Graydon, Head Ritchey
23.1 Consent of Graydon, Head & Ritchey (included in opinion)
23.2 Consent of KPMG Peat Marwick LLP
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* Incorporated by reference. See Exhibit Index.
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 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.
(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.
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
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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.
The undersigned Registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to whom the prospectus
is sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 of Regulation S-X are not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the prospectus is sent
or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
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,
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 City of Cincinnati, State of Ohio, on this 19th day of
October, 1998.
BALDWIN PIANO & ORGAN COMPANY
By: /s/ Karen L. Hendricks
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Karen L. Hendricks, 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 on the date indicated.
October 19, 1998 /s/ Karen L. Hendricks
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Karen L. Hendricks, Chairman of the Board and
Chief Executive Officer
October 19, 1998 /s/ George E. Castrucci
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George E. Castrucci, Director
October 19, 1998 /s/ William B. Connell
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William B. Connell, Director
October 19, 1998 /s/ John H. Gutfreund
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John H. Gutfreund, Director
October 19, 1998 /s/ Joseph H. Head, Jr.
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Joseph H. Head, Jr., Director
/s/ Roger L. Howe
October 20, 1998 ----------------------------------------------
Roger L. Howe, Director
October 19, 1998 /s/ Perry H. Schwartz
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Perry H. Schwartz, Executive Vice President
and Chief Financial Officer
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INDEX TO EXHIBITS
Exhibit Description of Exhibit
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4.1 Baldwin Piano & Organ Company 1998 Omnibus Stock Plan*
5.1 Opinion of Graydon, Head Ritchey
23.1 Consent of Graydon, Head & Ritchey (included in opinion)
23.2 Consent of KPMG Peat Marwick LLP
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* Incorporated by reference from the Registrant's Proxy Statement
dated April 24, 1998 relating to the Registrant's 1998 Annual Meeting
of Shareholders.
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Exhibit 5.1
October 21, 1998
Baldwin Piano & Organ Company
422 Wards Corner Road
Loveland, Ohio 45140-8390
Re: Registration of 200,000 Shares of Common Stock of Baldwin Piano
& Organ Company pursuant to Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Baldwin Piano & Organ Company, a
Delaware corporation (the "Company"), in connection with the registration under
the Securities Act of 1933, as amended, on Form S-8 (the "Registration
Statement") of 200,000 shares of the Company's Common Stock, $.01 par value per
share (the "Shares"), issuable under the Company's 1998 Omnibus Stock Plan.
As counsel for the Company, we have made such legal and
factual examinations and inquiries as we deem advisable for the purpose of
rendering this opinion. In addition, we have examined such documents and
materials, including the Certificate of Incorporation, Bylaws, and other
corporate records of the Company, as we have deemed necessary for the purpose of
this opinion.
On the basis of the foregoing, we are of the opinion that the
200,000 shares of Common Stock of the Company registered for issuance pursuant
to the Registration Statement, are currently validly authorized and, when issued
as contemplated by the Registration Statement, will be legally issued, fully
paid and nonassessable shares of Common Stock of the Company.
We hereby consent to the filing of this opinion as part of the
above-referenced Registration Statement and amendments thereto.
Very truly yours,
GRAYDON, HEAD & RITCHEY
/s/ Douglas D. Roberts
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Douglas D. Roberts
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Exhibit 23.2
Consent of Independent Public Accountants
The Board of Directors
Baldwin Piano & Organ Company
We consent to incorporation by reference in the registration statement on Form
S-8 for the Baldwin Piano & Organ Company 1998 Omnibus Stock Plan of our report
dated February 23, 1998, relating to the consolidated balance sheets of Baldwin
Piano & Organ Company and subsidiaries as of December 31, 1997 and 1996, and the
related consolidated statements of earnings, shareholders' equity, and cash
flows for each of the years in the three-year period ended December 31, 1997,
and the related schedule, which report appears in the December 31, 1997 annual
report on Form 10-K of Baldwin Piano & Organ Company.
/s/ KPMG Peat Marwick LLP
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KPMG PEAT MARWICK LLP
Cincinnati, Ohio
October 15, 1998
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