<PAGE>
As filed with the Securities and Exchange Commission
on June 19, 1995
Registration No. 33-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
WABAN INC.
(Exact name of issuer as specified in its charter)
DELAWARE 33-0109661
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
ONE MERCER ROAD, NATICK, MASSACHUSETTS 01760
(Address of Principal Executive Offices) (Zip Code)
1989 STOCK INCENTIVE PLAN
(Full title of the Plan)
MARK G. BORDEN, ESQ.
HALE AND DORR
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(Name and address of agent for service)
(617) 526-6000
(Telephone number, including area code, of agent for service)
================================================================================
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
- ---------- ---------- --------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock, 2,000,000 $15.50(1) $31,000,000(1) $10,689.66
$.01 par shares
value
</TABLE>
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee, and
based upon the average of the high and low prices of the Common Stock on
the New York Stock Exchange on June 13, 1995 in accordance with Rules
457(c) and 457(h) of the Securities Act of 1933.
================================================================================
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Registrant's 1989 Stock Incentive Plan (the "Plan")
pursuant to Rule 428(b)(l) of the Securities Act of 1933, as amended (the
"Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
-----------------------------------------------
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file with
the Commission, are incorporated in this Registration Statement by reference:
(l) The Registrant's latest annual report filed pursuant to Sections
13(a) or 15(d) of the Exchange Act, or the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act that contains audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Sections l3(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the document
referred to in (1) above.
(3) The description of the common stock of the Registrant, $.01 par
value per share, contained in a Registration Statement filed under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
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 shares of common stock
offered hereby have been sold or which deregisters all shares of common stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein 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
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
<PAGE>
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
The legality of the Common Stock being offered hereby will be passed
upon for the Company by Hale and Dorr, Boston, Massachusetts.
Item 6. Indemnification
---------------
Under Article Tenth of the Registrant's Restated Certificate of
Incorporation, as amended (the "Certificate"), each person who is a director or
officer of the Registrant shall be indemnified by the Registrant to the full
extent permitted by the law of the state of Delaware.
Indemnification and Insurance
- -----------------------------
Under Delaware law, directors and officers of the Registrant, as well as
other employees and individuals, may be indemnified against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement in connection
with specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation (a "derivative action")) if they acted in good faith in a manner
they reasonably believed to be in or not opposed to the best interests of the
company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard of
care is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) incurred in
connection with defense or settlement of such actions and Delaware law requires
court approval before there can be any indemnification where the person seeking
indemnification has been found liable to the Registrant.
The Certificate provides that each person who was or is made a party to, or
is involved in any action, suit, proceeding or claim by reason of the fact that
he or she is or was a director, officer or employee of the Registrant (or is or
was serving at the request of the Registrant as a director, officer, employee or
agent for any other entity) shall be indemnified and held harmless by the
Registrant, to the full extent authorized by Delaware law, as in effect from
time to time, against all expenses
<PAGE>
(including attorney's fees), judgments, fines, penalties and amounts to be paid
in settlement incurred by such person in connection with the investigation,
preparation to defend or defense of such action, suit, proceeding or claim.
The rights to indemnification and the payment of expenses provided by the
Certificate do not apply to any action, suit, proceeding or claim initiated by
or on behalf of a person otherwise entitled to the benefit of such provisions.
Any person seeking indemnification under the Certificate shall be deemed to have
met the standard of conduct required for such indemnification unless the
contrary shall be established. The Certificate provides that the rights to
indemnification and the payment of expenses provided thereby shall not be
exclusive of any other right which any person may have or acquire under any
statute, provision of the Certificate or the Registrant's By-Laws, or otherwise.
Any repeal or modification of such indemnification provisions shall not
adversely affect any right or protection of a director or officer with respect
to any conduct of such director or officer occurring prior to such repeal or
modification.
The Registrant has also entered or will enter into indemnification
agreements with each of its directors and officers indemnifying them against
expenses, settlements, judgments and fines incurred in connection with any
threatened, pending or completed action, suit, arbitration or proceeding, where
the individual's involvement is by reason of the fact that he or she is or was a
director or officer or served at the Registrant's request as a director or
officer of another organization (except that indemnification is not provided
against judgment and fines in a derivative suit unless permitted by Delaware
law). An individual may not be indemnified if he or she is found not to have
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 Registrant, except to the extent
Delaware law permits broader contractual indemnification. These indemnification
agreements provide procedures, presumptions and remedies which substantially
strengthen the indemnity rights beyond those provided by the Certificate and by
Delaware law.
The Registrant maintains insurance, at its expense, to protect itself and
any of its directors, officers, employees or agents covered thereby against any
expense, liability or loss, whether or not the Registrant would have the power
to indemnify such person against such expense, liability or loss under the
Delaware law. The Registrant intends to maintain such insurance so long as such
insurance is available at reasonable rates.
<PAGE>
Elimination of Liability in Certain Circumstances
- -------------------------------------------------
Consistent with applicable provisions of Delaware law, the Certificate
limits a director's monetary liability to the Registrant or its stockholders for
breach of fiduciary duty, except for situations entailing bad faith, intentional
misconduct, unlawful dividend payments or stock repurchases, acquisition of
improper personal benefit or breach of duty of loyalty. Future amendments to
such provisions of Delaware law will automatically be applied to the Registrant
without any requirement of stockholder approval. Such exculpation provisions
would not limit directors' liability for violation of the federal securities
laws. Such provisions also do not apply to officers who are not directors of the
Registrant.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings
------------
1. 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;
(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;
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;
<PAGE>
provided, however that paragraphs (i) and (ii) do not apply if the
-------- -------
Registration Statement is on Form S-3 or Form S-8, and 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 Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
2. The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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.
3. 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, 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
Securities 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 Securities
Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Town of Natick, Massachusetts, on the 13th day of June, 1995.
WABAN INC.
By: /s/ Herbert J. Zarkin
----------------------------
Herbert J. Zarkin
President and
Chief Executive
Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Waban Inc., hereby severally
constitute Herbert J. Zarkin, Sarah M. Gallivan and Mark G. Borden, and each of
them singly, our true and lawful attorneys with full power to them, and each of
them singly, to sign for us and in our names in the capacities indicated below,
the Registration Statement on Form S-8 filed herewith and any and all subsequent
amendments to said Registration Statement, and generally to do all such things
in our names and behalf in our capacities as officers and directors to enable
Waban Inc. to comply with all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be signed
by said attorneys, or any of them, to said Registration Statement and any and
all amendments thereto.
<PAGE>
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C> <C>
/s/ Sumner L. Feldberg Chairman of the Board June 13, 1995
- --------------------------
Sumner L. Feldberg of Directors
/s/ Herbert J. Zarkin Director, President and June 13, 1995
- --------------------------
Herbert J. Zarkin Chief Executive Officer
(Principal Executive
Officer)
/s/ Edward J. Weisberger Senior Vice President June 13, 1995
- --------------------------
Edward J. Weisberger and Chief Financial
Officer and Treasurer
(Principal Financial
and Accounting Officer)
/s/ S. James Coppersmith Director June 13, 1995
- --------------------------
S. James Coppersmith
/s/ Stanley H. Feldberg Director June 13, 1995
- --------------------------
Stanley H. Feldberg
/s/ Kerry L. Hamilton Director June 13, 1995
- --------------------------
Kerry L. Hamilton
/s/ Allyn L. Levy Director June 13, 1995
- --------------------------
Allyn L. Levy
/s/ Arthur F. Loewy Director June 13, 1995
- --------------------------
Arthur F. Loewy
/s/ Thomas J. Shields Director June 13, 1995
- --------------------------
Thomas J. Shields
/s/ Lorne R. Waxlax Director June 13, 1995
- --------------------------
Lorne R. Waxlax
</TABLE>
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
4.1 Restated Certificate of
Incorporation of the
Registrant (1)
4.2 By-laws, as amended, of the
Registrant (2)
4.3 Rights Agreement dated as of
May 23, 1989 between the
Registrant and Morgan
Shareholder Services Trust
Company, as Rights Agent (1)
4.4 Indenture dated as of July 1,
1992 between the Registrant
and Continental Bank,
National Association, as
Trustee, with respect to
6 1/2% Convertible
Subordinated Debentures due
July 1, 2002 (3)
4.5 Form of Indemnification
Agreement between the
Registrant and its officers
and directors (2)
5.1 Opinion of Hale and Dorr
23.1 Consent of Hale and Dorr
(included in Exhibit 5.1)
23.2 Consent of Coopers & Lybrand
L.L.P.
24.1 Power of Attorney (included
on the signature page of this
Registration Statement)
</TABLE>
___________________
(1) Incorporated herein by reference to the Registrant's Form 10
(#1-10259)
(2) Incorporated herein by reference to the Registrant's Form 10-
K for the fiscal year ended January 27, 1990
(3) Incorporated herein by reference to the Registrant's Form S-3
(#33-48423)
<PAGE>
Exhibit 5.1
HALE AND DORR
Counsellors At Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 FAX 617-526-5000
June 19, 1995
Waban Inc.
One Mercer Road
Natick, Massachusetts 01760
Re: 1989 Stock Incentive Plan
-------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to 2,000,000 shares of Common Stock, $.01 par value per
share (the "Shares"), of Waban Inc., a Delaware corporation (the "Company"),
issuable under the Company's 1989 Stock Incentive Plan (the "Plan").
We have examined the Restated Certificate of Incorporation and By-Laws of
the Company, and all amendments thereto, and originals, or copies certified to
our satisfaction, of all pertinent records of the meetings of the directors and
stockholders of the Company, the Registration Statement and such other documents
relating to the Company as we have deemed material for the purposes of this
opinion.
In examination of the foregoing documents, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as copies, and the authenticity of the originals of such latter documents.
Based on the foregoing, we are of the opinion that the Registrant has duly
authorized for issuance the shares of its Common Stock covered by the
Registration Statement to be issued under the Plan, as described in the
Registration Statement, and such shares, when issued in accordance with the
terms of the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
HALE AND DORR
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement of Waban Inc. on Form S-8 of our report dated February 27, 1995,
except as to Note C, for which the date is April 7, 1995, on our audits of the
consolidated financial statements and financial statement schedules of Waban
Inc. as of January 28, 1995 and January 29, 1994, and for the three years ended
January 28, 1995, January 29, 1994, and January 30, 1993, which report is
included in Waban Inc.'s Annual Report on Form 10-K for the year ended January
28, 1995.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
June 16, 1995
