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File No. 333-_______
As filed with the Securities and Exchange Commission on September 30, 1997
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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BITSTREAM INC.
(Exact name of registrant as specified in its charter)
Delaware 04-2744890
- -------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. employer identification no.)
incorporation or organization)
215 First Street, Boston, Massachusetts 02142
- ---------------------------------------- -----------
(Address of principal executive offices) (Zip Code)
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1997 Stock Plan, 1996 Stock Plan and 1994 Stock Plan of Bitstream Inc.
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(Full titles of the plans)
Mr. Charles Ying
Bitstream Inc.
215 First Street
Cambridge, Massachusetts 02142
(212) 497-6222
(Name, address and telephone number of agent for service)
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Copies to:
Paul A. Gajer, Esq.
Rubin Baum Levin Constant & Friedman
30 Rockefeller Plaza
New York, New York 10112
(212) 698-7700
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CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum
Maximum Aggregate Amount
Title of Securities to be Amount to be Offering Price Offering of Registration
Registered Registered Per Share* Price* Fee
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<S> <C> <C> <C> <C>
Class A Common Stock ($.01 par value per share) 3,500,000 $2.6875* $9,406,250* $2,850.38*
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* This estimate is made pursuant to Rule 457(h) solely for the purpose of
determining the registration fee. It is not known how many shares will be
purchased under the plans or at which price such shares will be purchased.
The above calculation is based on the offering of 3,500,000 shares at a
purchase price of $2.6875 per share, which purchase price is the average of
the high ($3.25) and low ($2.125) prices of the Registrant's Class A Common
Stock, par value $0.01 per share ("Class A Common Stock"), as reported on
the Nasdaq National Market on September 24, 1997.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in documents
sent or given to participants in the 1997 Stock Plan, 1996 Stock Plan and 1994
Stock Plan of Bitstream Inc., a Delaware corporation (the "Registrant"),
pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3.INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission ("SEC") are hereby incorporated by reference in this
Registration Statement: (1) the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996; (2) the Registrant's Quarterly Reports on
Form 10-Q for the quarters ended March 31, 1997 and June 30, 1997; (3) all
reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December
31, 1996; and (4) the description of the Class A Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the SEC on October
30, 1996, under Section 12(g) of the Exchange Act, including any amendment or
report filed for the purposes of updating such description.
In addition, 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 hereby have
been sold or which deregisters all of such securities then remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF COUNSEL NAMED EXPERTS.
Certain legal matters in connection with the issuance of the shares of
Class A Common Stock being registered hereby are being passed upon by Rubin Baum
Levin Constant & Friedman ("Rubin Baum"), 30 Rockefeller Plaza, New York, New
York 10112, counsel to the Registrant. As of July 16, 1997, members of Rubin
Baum beneficially own, directly or indirectly, 28,000 shares of Class A Common
Stock.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 145 of the Delaware General Corporation Laws empowers a Delaware
corporation to indemnify its officers and directors and certain other persons to
the extent and under the circumstances set forth therein.
The Certificate of Incorporation of the Registrant and the By-laws of the
Registrant provide for indemnification of officers and directors of the
Registrant and certain other persons against liabilities and expenses incurred
by any of them in certain stated proceedings and under certain stated
conditions.
The Registrant has entered into Indemnification Agreements
("Indemnification Agreements") with certain of its directors and officers. Each
Indemnification Agreement provides that the Registrant will indemnify the
indemnitee against expenses, including reasonable attorneys' fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with any civil or criminal action or administrative proceeding
arising out of his or her performance of his or her duties as a director or
officer so long as the indemnitee acted in good faith in respect thereof.
The directors and officers of the Registrant are also insured under
policies of insurance maintained by the Registrant, within the limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of
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actions, suits or proceedings, and certain liabilities which might be imposed as
a result of such actions, suits or proceedings, to which they are parties by
reason of being or having been such directors or officers.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, in the opinion of
the SEC such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are part of this Registration Statement:
4.1 1997 Stock Option Plan (Incorporated by reference to Exhibit 10.11 to
the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, filed March 31, 1997).
4.2 1996 Stock Plan (Incorporated by reference to Exhibit 10.1 to the
Registrant's Registration Statement on Form S-1 (Registration No.
333-11519), filed on September 6, 1996).
4.3 1994 Stock Plan (Incorporated by reference to Exhibit 10.2 to the
Registrant's Registration Statement on Form S-1 (Registration No.
333-11519), filed on September 6, 1996).
5 Opinion of Rubin Baum Levin Constant & Friedman.
23.1 Consent of Rubin Baum Levin Constant & Friedman (included in Exhibit
5).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on the signature page of the 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 arising after the
effective date of the registration statement (or 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;
(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, including (but not limited to) any
addition or election of a managing underwriter.
(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) 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
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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.
(5) That, 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 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 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 that matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the questions 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 Cambridge, Commonwealth of Massachusetts, on this
30th day of September, 1997.
BITSTREAM INC.
BY: /s/ Charles Ying
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Charles Ying
Chairman of the Board and Chief Executive Officer
Each person whose signature appears below on this Registration Statement
hereby severally constitutes and appoints each of Charles Ying, or his
respective successor in office, and Anna Chagnon, with full power to act as his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place, and stead, in any and all
capacities (until revoked in writing) to sign any and all amendments (including
post effective amendments and amendments thereto) to this Registration Statement
on Form S-8 of the Registrant and to file the same with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact 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 for all intents and purposes, as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact or his substitute 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 dates indicated.
Signature Title Date
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/s/Charles Ying Chairman of the Board and September 30, 1997
- --------------------- Chief Executive Officer
Charles Ying (Principal Executive Officer)
/s/George B. Beitzel Director September 30, 1997
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George B. Beitzel
/s/Amos Kaminski Director September 30, 1997
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Amos Kaminski
/s/David G. Lubrano Director September 30, 1997
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David G. Lubrano
/s/Wendy Darland Vice President, Finance and September 30, 1997
- --------------------- Administration, Chief Finan-
Wendy Darland cial Officer, Treasurer and
Assistant Secretary (Principal
Financial and Principal
Accounting Officer)
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[LETTERHEAD OF RUBIN BAUM LEVIN CONSTANT & FRIEDMAN]
September 30, 1997
Bitstream Inc.
215 First Street
Cambridge, MA 02142
Ladies and Gentlemen:
We have acted as counsel to Bitstream Inc., a Delaware corporation
(the "Company"), in connection with the preparation of its Registration
Statement on Form S-8 under the Securities Act of 1933, as amended (the
"Registration Statement"), to which this opinion is to be filed as an
exhibit. The Registration Statement relates to the issuance of up to an
aggregate of 3,500,000 shares (the "Option Plan Shares") of the Company's
Class A Common Stock, par value $.01 per share (the "Common Stock"), pursuant
to stock options and warrants granted or which may be granted under the
Company's 1997 Stock Plan, 1996 Stock Plan and 1994 Stock Plan (the "Plans").
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that Option Plan
Shares, when issued in accordance with the terms and conditions of the
respective Plans, against payments therefor, will be legally issued, fully paid
and nonassessable.
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Bitstream Inc.
September 30, 1997
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, and the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
RUBIN BAUM LEVIN CONSTANT & FRIEDMAN
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Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Bitstream Inc.:
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 11, 1997
included (or incorporated by reference) in Bitstream Inc.'s Form 10-K for the
year ended December 31, 1996 and to all references to our Firm included in this
registration statement.
Arthur Andersen LLP
Boston, Massachusetts
September 29, 1997
