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As filed with the Securities and Exchange Commission on May 30, 1997
Registration No 333-
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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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THE EASTWIND GROUP, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 23-2732753
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Identification
Organization) Number)
100 Four Falls Corporate Center
Suite 305
West Conshohocken, Pennsylvania 19428
(Address, including zip code,
of principal executive offices)
STOCK OPTION INCENTIVE PLAN
NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
(Full title of the plans)
Paul A. DeJuliis
Chairman and Chief Executive Officer
The Eastwind Group, Inc.
100 Four Falls Corporate Center
Suite 305
West Conshohocken, Pennsylvania 19428
(Name and address of agent for service)
(610) 828-6860
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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<S> <C> <C> <C> <C>
Title of Amount to Be Proposed Amount of
Securities to Registered Maximum Proposed Maximum Registration
Be Registered (1)(2) Offering Price Aggregate Offering Fee
Per Share (3) Price (3)
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</TABLE>
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<TABLE>
<CAPTION>
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<S> <C> <C> <C> <C>
Common Stock, 300,000 shares $ 6.00 $ 1,800,000 $ 545.46
par value $.10 5,000 shares $ 8.50 $ 42,500 $ 12.88
per share 120,000 shares $ 7.50 $ 900,000 $ 272.73
40,000 shares $ 9.06 $ 362,400 $ 109.82
40,000 shares $ 4.75 $ 190,000 $ 57.57
240,000 shares $ 4.50 $ 1,080,000 $ 327.27
1,255,000 shares $ 4.875 $ 6,118,125 $1,853.98
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Total 2,000,000 shares $10,493,025 $3,179.71
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</TABLE>
(1) Pursuant to Rule 416(b), there shall also be deemed covered hereby such
additional securities as may result from anti-dilution adjustments under
The Eastwind Group, Inc. Stock Option Incentive Plan (the "Employee Plan")
and The Eastwind Group, Inc. Non-Employee Directors Stock Option Plan (the
"Directors Plan") (collectively, the "Stock Option Plans").
(2) Includes 1,000,000 additional shares to be reserved for issuance under the
Stock Option Plans (750,000 under the Employee Plan and 250,000 under the
Directors Plan), the reservation of which requires stockholder approval.
The Registrant is seeking and hopes to obtain such stockholder approval by
its annual meeting scheduled to take place on June 5, 1997. If the
Registrant fails to obtain the requisite stockholder approval, the
Registrant will promptly file a post-effective amendment deregistering such
additional shares.
(3) Pursuant to Rule 457(h), estimated solely for the purpose of calculating
the registration fee on the basis of (i) the option exercise price with
respect to outstanding options to purchase 300,000 shares, (ii) the option
exercise price with respect to outstanding options to purchase 5,000
shares, (iii) the option exercise price with respect to outstanding options
to purchase 120,000 shares, (iv) the option exercise price with respect to
outstanding options to purchase 40,000 shares, (v) the option exercise
price with respect to outstanding options to purchase 40,000 shares, (vi)
the option exercise price with respect to outstanding options to purchase
240,000 shares; (vii) the average of the high and low prices per share of
the Registrant's Common Stock on The Nasdaq Stock Market on May 28, 1997
with respect to the remaining aggregate of 1,255,000 shares subject to
future grant, under the Stock Option Plans (915,000 under the Employee Plan
and 340,000 under the Directors Plan).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by The Eastwind Group,
Inc. (the "registrant" or the "Company") with the Securities and Exchange
Commission (the "Commission") are incorporated by reference into this
Registration Statement:
The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1996 (the "Annual Report"), the Company's Quarterly Report on Form
10-QSB for the quarter ended March 29, 1997 and the Current Reports on Form 8-K
or 8-K/A filed January 14, 1997, March 17, 1997 and April 2, 1997 with the
Commission (File No. 0-27638) pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "1934 Act") and the description
of the Company's Common Stock contained in the Company's Registration Statement
on Form 8-A filed January 29, 1996 under the 1934 Act, including any amendment
or report filed for the purpose of updating such description, are incorporated
herein by reference.
All documents filed subsequent to the date of this Registration
Statement pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act, prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
herein by reference 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.
Item 4. Description of Securities.
The Common Stock, which is the class of securities offered pursuant to
this Registration Statement, is registered under the 1934 Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company has adopted the provisions of Section 102(b)(7) of the
Delaware General Corporation Law (the "Delaware Act") which eliminate or limit
the personal liability of a director to the Company or its stockholders for
monetary damages for breach of fiduciary duty under certain circumstances.
Furthermore, under Section 145(d) of the Delaware Act, the Company may indemnify
each of its directors and officers against his expenses (including reasonable
costs, disbursements and counsel fees) in connection with any proceeding
involving such person by reason of his having been an officer or director to the
extent he acted in good faith and in a manner reasonably believed to be in, or
not opposed to, the best interest of the Company, and, with respect to any
criminal action or proceeding, if he had no reasonable cause to believe his
conduct was unlawful. The determination of
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whether indemnification is proper under the circumstances, unless made by a
court, shall be determined by the Board of Directors.
Item 7. Exemption from Registration Claimed.
No restricted securities are being reoffered or resold pursuant to
this Registration Statement.
Item 8. Exhibits.
Exhibit No. Description
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* 4.1 Stock Option Incentive Plan (Incorporated by reference to
Exhibit 10.28 to the Company's Registration Statement on Form
SB-2, Registration No. 33-94252 filed on November 13, 1995).
* 4.2 Non-Employee Directors Stock Option Plan (Incorporated by
reference to Exhibit 10.29 to the Company's Registration
Statement on Form SB-2, Registration No. 33-94252 filed on
November 13, 1995).
* 4.3 Loan Plan for Officers and Key Employees (Incorporated by
reference to Exhibit 10.1 to the Company's Quarterly Report
on Form 10-QSB for the quarter ended March 29, 1997 filed on
May 19, 1997).
5 Opinion of Pepper, Hamilton & Scheetz LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Hantzmon, Wiebel & Company.
23.3 Consent of Pepper, Hamilton & Scheetz LLP (included in
Exhibit 5).
24 Power of Attorney (see Signature Pages).
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* Incorporated by reference
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Item 9. Undertakings
The undersigned registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being made
pursuant to this Registration Statement, 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 this registration statement (or the most recent
post-effective amendment thereof) which, individually or in aggregate, represent
a fundamental change in the information set forth in this 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 and 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 percent 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 this registration statement or
any material change to such information in this registration statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
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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 15(d) of the 1934 Act 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
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fide offering thereof.
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(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 also 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 15(d) of the 1934
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the 1934 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
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thereof.
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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 West Conshohocken, Pennsylvania, on May 28, 1997.
THE EASTWIND GROUP, INC.
By: /s/ Paul A. DeJuliis
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Paul A. DeJuliis,
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Paul A. DeJuliis and William B. Miller,
and each or any of them, his true and lawful attorney-in-fact and agents, with
full power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, or any registration
statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, as amended, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes, 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.
Date: May 28, 1997 /s/ Paul A. DeJuliis
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Paul A. DeJuliis, Chairman of the
Board and Chief Executive Officer
(principal executive officer)
Date: May 28, 1997 /s/ John R. Thach
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John R. Thach, President
and Director
Date: May 28,1997 /s/ William B. Miller
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William B. Miller, Senior Vice
President, Chief Financial Officer
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and Director (principal financial
and accounting officer)
Date: May 28,1997 /s/ Anthony J. Mendicino
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Anthony J. Mendicino, Senior Vice
President, Chief Operating Officer
and Director
Date: May 28,1997 /s/ Bruce P. Murray
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Bruce P. Murray, Director
Date: May 28,1997 /s/ Andrew Panzo
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Andrew Panzo, Director
Date: May 28,1997 /s/ Porter Bibb
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Porter Bibb, Director
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EXHIBIT INDEX
Exhibit No. Description
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5 Opinion of Pepper, Hamilton & Scheetz LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Hantzmon, Wiebel & Company.
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Exhibit 5
May 28, 1997
The Eastwind Group, Inc.
100 Four Falls Corporate Center
Suite 305
West Conshohocken, PA 19428
Re: Registration Statement on Form S-8
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Dear Sir/Madam:
Reference is made to a Registration Statement on Form S-8 of The Eastwind
Group, Inc. (the "Company") which is being filed with the Securities and
Exchange Commission on the date hereof (the "Registration Statement").
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Registration Statement.
The Registration Statement covers 2,000,000 shares of Common Stock, $.10 par
value per share, of the Company (the "Shares"), of which 1,500,000 may be issued
by the Company upon exercise of options granted or available for grant under the
Company's Stock Option Incentive Plan and 500,000 may be issued by the Company
upon exercise of options granted or available for grant under the Company's Non-
employee Directors Stock Option Plan (collectively, the "Plans").
We have examined the Registration Statement, including the exhibits thereto,
the Company's Amended and Restated Certificate of Incorporation, the Company's
First Amended and Restated By-laws, the Plans and such other documents as we
have deemed appropriate. In the foregoing examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the authenticity of all documents submitted to us as copies of
originals.
Based upon the foregoing, we are of the opinion that the Shares, when issued
and paid for in accordance with the terms of, and upon exercise of the options
granted under, the Plans, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, we do not hereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations thereunder.
Sincerely,
PEPPER, HAMILTON & SCHEETZ LLP
By: /s/ Peter O. Clauss
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Peter O. Clauss, A Partner
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our report dated March 26,
1997 included in The Eastwind Group, Inc.'s Form 10-KSB for the year ended
December 31, 1996, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Philadelphia, Pennsylvania
May 28, 1997
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Exhibit 23.2
CONSENT OF CERTIFIED PUBLIC ACCOUNTANTS
As certified public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our report dated December
30, 1996 on the financial statements of Tygart Moulding Corporation included in
The Eastwind Group, Inc.'s Form 8-K/A (pages F-1 through F-21) filed on March
17, 1997.
HANTZMON, WIEBEL & COMPANY
Charlottesville, Virginia
May 29, 1997
