<PAGE> 1
As filed with the Securities and Exchange Commission on January 14, 2000
FILE NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BTU INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-2781248
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
23 ESQUIRE ROAD
NORTH BILLERICA, MASSACHUSETTS 01862
(978) 667-4111
(Address of principal executive offices, including zip code)
BTU INTERNATIONAL, INC. 1993 EQUITY INCENTIVE PLAN
BTU INTERNATIONAL, INC. 1998 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the plans)
---------------------------
PAUL J. VAN DER WANSEM
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
BTU INTERNATIONAL, INC.
NORTH BILLERICA, MASSACHUSETTS 01862
(978) 667-4111
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
Amount Proposed maximum Proposed maximum Amount of
Title of each class of to be offering price aggregate offering registration
securities to be registered registered per share price fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 550,000 shs. $5.4688(1) $3,007,840(1) $794.07
===================================================================================================================
</TABLE>
(1) FOR PURPOSES OF DETERMINING THE REGISTRATION FEE, THE MAXIMUM PER SHARE AND
AGGREGATE OFFERING PRICES HAVE BEEN DETERMINED, PURSUANT TO RULE 457(h) OF THE
SECURITIES ACT OF 1933, ON THE BASIS OF THE AVERAGE OF HIGH AND LOW PRICES OF
THE COMMON STOCK REPORTED IN THE NASDAQ NATIONAL MARKET SYSTEM ON JANUARY 10,
2000.
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EXHIBIT INDEX ON PAGE 7;
PAGE 1 OF 7 PAGES.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information required by Item 1 of this Form
S-8 and the statement of availability of information of BTU International, Inc.
(the "Registrant"), and other information required by Item 2 of this Form will
be sent or given to employees as specified by Rule 428 under the Securities Act
of 1933, as amended (the "Securities Act"). In accordance with Rule 428 and the
requirements of Part I of Form S-8, such documents are not being filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. The Registrant shall maintain a file of such documents in accordance
with the provisions of Rule 428. Upon request, the Registrant shall furnish to
the Commission or its staff a copy or copies of any or all of the documents
included in such file.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION DOCUMENTS BY REFERENCE.
The following documents previously filed by the Registrant with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") are hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998.
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 28, 1999, June 27, 1999 and September 26, 1999.
(c) Description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A (File No. 0-17297) and all
amendments or reports filed for the purpose of updating such description.
All other reports and other documents filed by the Registrant pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the termination of this offering shall be
incorporated by reference into this Registration Statement and shall be deemed
to be a part of this Registration Statement from the date of filing of such
reports and documents. Any statement contained herein or in a document
incorporated by reference shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained
in this Registration Statement or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such 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.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, as amended,
provides that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal or investigative (other than an
action by or in the right of the corporation) by reason of the fact that he or
she is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145 further provides that a corporation similarly may indemnify any such
person serving in any such capacity who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor, against expenses
(including attorneys' fees) actually and reasonably incurred in connection with
the defense or settlement of such action or suit if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation, except that no indemnification shall be
made
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in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Delaware Court Chancery or such other court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
permits a corporation to include in its certificate of incorporation a provision
eliminating or limiting personal liability of a director to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, as amended
(relating to unlawful payment of dividends and unlawful stock purchase and
redemption) or (iv) for any transaction from which the director derived an
improper personal benefit.
The Registrant's Restated Certificate of Incorporation provides that
the Registrant's Directors shall not be liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent that exculpation from liability is not permitted under
Delaware General Corporate Law as in effect at the time such liability is
determined. The Registrant's By-laws provide that the Registrant shall indemnify
its directors and officers to the extent permitted by the General Corporate Law
of the State of Delaware.
The Registrant has obtained an insurance policy that insures its
directors and officers against certain liabilities.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
Exhibit
4.1 Restated Certificate of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.2 of the Registrant's Registration Form on
S-1, File No. 33-24882).
4.2 By-Laws of the Registrant, as amended (incorporated by reference to
Exhibit 3.3 of the Registrant's Registration Statement on Form S-1,
File No. 33-24882).
5.1 Opinion of Ropes & Gray.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ropes & Gray (contained in the opinion filed as Exhibit 5.1
to this Registration Statement).
24 Powers of Attorney (included on the signature page of this Registration
Statement under the caption "Power of Attorney").
Item 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
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(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; and (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) of this section 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.
(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.
(h) 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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in North Billerica, Massachusetts, on this 10th day of January,
2000.
BTU INTERNATIONAL, INC.
By /s/Paul J. Van der Wansem
-----------------------------------------
Paul J. Van der Wansem
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
hereby authorizes and constitutes Paul J. Van der Wansem and Thomas P. Kealy,
and each of them singly, his true and lawful attorneys with full power to them,
and each of them singly, to sign for him and in his name in the capacities
indicated below any and all amendments (including post-effective amendments) to
this Registration Statement and to file the same, with exhibits thereto, and
other documents in connection therewith, and he hereby ratifies and confirms his
signature as it may be signed by said attorneys, or any of them, to any and all
such amendments.
<TABLE>
<CAPTION>
Signature Capacity in Which Signed Date
- --------- ------------------------ ----
<S> <C> <C>
/s/ Paul J. Van der Wansem Chairman of the Board, Chief January 10, 2000
- ------------------------------ Executive Officer, President and
Paul J. Van der Wansem Director (principal executive officer)
/s/ Thomas P. Kealy Vice President, Corporate Controller January 10, 2000
- ------------------------------ and Chief Accounting Officer
Thomas P. Kealy (principal financial and accounting
officer)
/s/ David A.B. Brown Director January 10, 2000
- ------------------------------
David A.B. Brown
/s/ J. Chuan Chu Director January 10, 2000
- ------------------------------
J. Chuan Chu
/s/ Joseph F. Wrinn Director January 10, 2000
- ------------------------------
Joseph F. Wrinn
</TABLE>
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EXHIBIT INDEX
Number Title of Exhibit
- ------ ----------------
4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.2 of the Registrant's
Registration Form on S-1, File No. 33-24882).
4.2 By-Laws of the Registrant, as amended (incorporated by
reference to Exhibit 3.3 of the Registrant's Registration
Statement on Form S-1, File No. 33-24882).
5.1 Opinion of Ropes & Gray.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ropes & Gray (contained in the opinion filed as
Exhibit 5.1 to this Registration Statement).
24 Powers of Attorney (included on the signature page of this
Registration Statement under the caption "Power of Attorney").
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Exhibit 5.1
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January 10, 2000
BTU International, Inc.
23 Esquire Road
North Billerica, MA 01862
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration
statement on Form S-8 (the "Registration Statement"), filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, for the registration of 500,000 shares of Common Stock, $.01 par value
(the "Incentive Plan Shares"), of BTU International, Inc. (the "Company") to be
issued upon exercise of options awarded under BTU International, Inc. 1993
Equity Incentive Plan (the "Incentive Plan") and 50,000 shares of Common Stock,
$.01 par value (collectively with the Incentive Plan Shares, the "Shares") under
the BTU International, Inc. 1998 Stock Option Plan for Non-Employee Directors
(collectively with the Incentive Plan, the "Plans").
We have acted as special counsel for the Company and are familiar with
the action taken by the Company in connection with the Plans. For purposes of
this opinion we have examined the Plans and such other documents as we deemed
appropriate.
Based upon the foregoing, we are of the opinion that the Shares have
been duly authorized and, when issued and sold and consideration received
therefor by the Company in accordance with the terms of the respective Plans,
the Shares will be validly issued, fully paid and non-assessable.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Ropes & Gray
----------------------
Ropes & Gray
<PAGE> 1
Exhibit 23.1
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in the Registration Statement on Form S-8 of BTU
International, Inc. of our report dated February 16, 1999 included or
incorporated by reference in the Annual Report on Form 10-K of BTU
International, Inc. for the year ended December 31, 1998.
Arthur Andersen LLP
Boston, Massachusetts
January 10, 2000
