<PAGE> 1
As filed with the Securities and Exchange Commission on May 17, 1996
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
HEALTH O METER PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3635286
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
24700 Miles Road
Bedford Heights, Ohio 44146
(Address of principal executive offices, including zip code)
--------------------------
HEALTH O METER PRODUCTS, INC.
1992 STOCK INCENTIVE PLAN
HEALTH O METER PRODUCTS, INC.
1995 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plans)
-------------------------
Copy to:
Peter C. McC. Howell
Chairman and Chief Executive Officer Thomas F. McKee, Esq.
Health o meter Products, Inc. Calfee, Halter & Griswold
24700 Miles Road 1400 McDonald Investment Center
Bedford Heights, Ohio 44146 800 Superior Avenue
(216) 464-4000 Cleveland, Ohio 44114-2688
(216) 622-8200
(Name, address and telephone number, including area code, of agent for
service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share (1) price (1) fee
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 970,000 $ 5.875 $5,698,750 $1,966
par value shares
$.01 per share
- ----------------------------------------------------------------------------------------------------------------
<FN>
(1) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee.
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
-----------------------------------------------
The following documents of Health o meter Products, Inc. (the
"Company"), previously filed with the Securities and Exchange Commission, are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended October 1, 1995;
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ending December 31, 1995 and March 31, 1996;
3. The Company's definitive Proxy Statement used in connection with
its Annual Meeting of Stockholders held on March 7, 1996; and
4. The Company's Form 8-A Registration Statement with respect to its
shares of Common Stock.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
Registration Statement, 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 the 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 NAMED EXPERTS AND COUNSEL
--------------------------------------
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
Section 145(a) of the General Corporation Law of the State of Delaware
provides that a Delaware 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, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he 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 attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner be 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 conduct was unlawful.
Section 145(b) provides that a Delaware 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 or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
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(including attorney's fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
under similar standards, except that no indemnification may be made in respect
of any claim, issue or matter as to which such person shall have been adjusted
to be liable to the corporation unless and only to the extent that the court in
which such action or suit was brought shall determine that, despite the
adjudication of liability, but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
Section 145 further provides that to the extent a director, officer,
employee or agent of a corporation had been successful in the defense of any
action, suit or proceeding referred to in subsections (a) and (b) or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled; and that the corporation may purchase and maintain insurance on
behalf of a director or officer of the corporation against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such whether or not the corporation would have the power to
indemnify him against such liability under such Section 145.
Section 102(b)(7) of the General Corporation Law of the State of
Delaware provides that a corporation in its original certificates of
incorporation or an amendment thereto validly approved by stockholders may
eliminate or limit personal liability of members of its board of directors or
governing body for breach of a director's fiduciary duty. However, no such
provision may eliminate or limit the liability of a director for breaching his
duty of loyalty, failing to act in good faith, engaging in intentional
misconduct or knowingly violating a law, paying a dividend or approving a stock
repurchase which was illegal, or deriving an improper personal benefit. A
provision of this type has no effect on the availability of equitable remedies,
such as injunction or rescission, for breach of fiduciary duty. Article Tenth of
the Registrant's Amended and Restated Certificates of Incorporation contains
such a provision.
Article 10 of the Registrant's Amended and Restated By-laws provides
that the Registrant shall indemnify officers and directors, and to the extent
authorized by the Board of Directors, employees and agents of the Registrant, to
the fullest extent permitted by and in the manner permissible under the laws of
the State of Delaware. The Amended and Restated BY-laws also permit the Board of
Directors to authorize the Registrant to purchase and maintain insurance against
any liability asserted against any director, officer, employee or agent of the
Registrant arising out of his capacity as such.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not applicable.
Item 8. EXHIBITS
--------
See the Exhibit Index at Page E-1 of this Registration Statement.
Item 9. UNDERTAKINGS
------------
A. 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;
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(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 the 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 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 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.
(4) If the Registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include
any financial statements required by Rule 3-19 of this chapter at
the start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise required
by Section 10(a)(3) of the Securities Act of 1933 need not be
furnished, provided, that the Registrant includes in the
prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (a)(4) and other
information necessary to ensure that all other information in the
prospectus is at least as current as the date of those financial
statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment
need not be filed to include financial statements and information
required by Section 10(a)(3) of the Securities Act of 1933 or
Rule 3-19 of this chapter if such financial statements and
information are 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 Form F-3.
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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 this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall
be deemed to be the initial BONA FIDE offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to Directors, officers and
controlling persons of the Company 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 of 1933
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 against the Registrant 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 of 1933 and will be governed by the
final adjudication of such issue.
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<PAGE> 6
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 Bedford Heights, State of Ohio, this 17th day of
May, 1996.
HEALTH O METER PRODUCTS, INC.
By: /S/PETER C. McC. HOWELL
------------------------------------
Peter C. McC. Howell
Chairman and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, constitutes and appoints Peter C. McC. Howell, S. Donald
McCullough and Thomas F. McKee, or any one of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution for him and his
name, place and stead, in any and all capacities, to sign any or all amendments
or post-effective amendments to this Registration Statement, and to file the
same, with all Exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto such
attorneys-in-fact and agents, or any one of them, 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 and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any one of them, or their or his substitute or
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 below by the following persons in the
capacities indicated on May 17, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/S/PETER C. McC. HOWELL Chairman, Chief Executive Officer and
- ------------------------------- Director (Principal Executive Officer)
Peter C. McC. Howell
/S/ REMIGIJUS BELZINSKAS Remigijus Belzinskas, Controller
- ------------------------------- (Principal Accounting and Financial
Remigijus Belzinskas Officer)
Director
- -------------------------------
Thomas H. Lee
/S/ ROBERT W. MILLER Director
- -------------------------------
Robert W. Miller
/S/THOMAS R. SHEPHERD Director
- -------------------------------
Thomas R. Shepherd
/S/SCOTT A. SCHOEN Director
- -------------------------------
Scott A. Schoen
</TABLE>
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/S/WILLIAM P. CARMICHAEL Director
- -------------------------------
William P. Carmichael
/S/LAWRENCE ZALUSKY Director
- -------------------------------
Lawrence Zalusky
/S/FRANK E. VAUGHN Director
- -------------------------------
Frank E. Vaughn
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<PAGE> 8
Calfee, Halter & Griswold
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114
May 17, 1996
Health o meter Products, Inc.
24700 Miles Road
Bedford Heights, Ohio 44146
We are familiar with the proceedings taken and proposed to be
taken by Health o meter Products, Inc., a Delaware corporation (the "Company"),
with respect to: (i) 220,000 shares of Common Stock, par value $.01 per share
(the "Common Stock"), of the Company to be issued from time to time upon the
exercise of stock options granted pursuant to the Company's 1992 Stock Incentive
Option Plan (the "1992 Plan"); and (ii) 750,000 shares of Common Stock of the
Company to be issued from time to time upon the exercise of stock options and
stock appreciation rights granted pursuant to the Company's 1995 Stock Option
and Incentive Plan (the "1995 Plan"). As counsel for the Company, we have
assisted in the preparation of a Registration Statement on Form S-8 (the
"Registration Statement") to be filed by the Company with the Securities and
Exchange Commission to effect the registration of 970,000 shares of Common
Stock under the Securities Act of 1933, as amended.
In this connection, we have examined the Certificate of
Incorporation and the By-Laws of the Company, both as amended, records of
proceedings of the Board of Directors and stockholders of the Company, and such
other records and documents as we have deemed necessary or advisable to render
the opinion contained herein. Based upon our examination and inquiries, we are
of the opinion that the Common Stock, when issued and sold upon the exercise of
the options and stock appreciation rights pursuant to the terms and conditions
of the 1992 Plan and the 1995 Plan, will be duly authorized and validly issued,
fully paid and nonassessable.
We are admitted to the practice of law solely in the State of
Ohio. The opinions expressed in this letter are limited to matters of Ohio law,
Delaware general corporate law and United States federal law.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement. This opinion is limited to the matters expressly
set forth herein, and no opinion is implied or may be inferred beyond that
expressly stated herein. This opinion is furnished to you and is solely for your
benefit. No other person or entity may rely upon the opinion set forth herein
without the prior written consent of the undersigned.
Respectfully submitted,
CALFEE, HALTER & GRISWOLD
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<PAGE> 9
EXHIBIT 23.1
The Board of Directors
Health o meter Products, Inc.
We consent to incorporation by reference in the
Registration Statement on Form S-8 of Health o meter Products, Inc. and its
subsidiary of our report dated December 12, 1995, relating to the consolidated
balance sheets of Health o meter Products, Inc. and its subsidiary as of
October 1, 1995 and October 2, 1994, and the related consolidated statements of
operations, stockholders' equity and cash flows for each of the years in the
three-year period ended October 1, 1995 and all related schedules, which report
appears in the October 1, 1995 annual report on Form 10-K of Health o meter
Products, Inc. and its subsidiary.
KPMG Peat Marwick LLP
Cleveland, Ohio
May 17, 1996
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<PAGE> 10
EXHIBIT 23.2
We consent to the incorporation by reference in the
Registration Statement (Form S-8) dated May 17, 1996, pertaining to the Health
o meter Products, Inc. 1992 Stock Incentive Plan and the Health o meter
Products, Inc. 1995 Stock Option and Incentive Plan of our report dated
February 21, 1994, with respect to the financial statements and schedules of
Health o meter Products, Inc. included and incorporated by reference in its
Annual Report (Form 10-K) for the year ended December 31, 1993, filed with the
Securities and Exchange Commission.
Arthur Andersen LLP
Chicago, Illinois
May 17, 1996
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<PAGE> 11
EXHIBIT 23.3
CONSENT OF COUNSEL
The consent of Calfee, Halter & Griswold is contained in their
opinion filed as Exhibit 5.1 to this Registration Statement.
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EXHIBIT 24.1
HEALTH O METER PRODUCTS, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Health o meter Products,
Inc. hereby constitutes and appoints Peter C. McC. Howell, S. Donald McCullough,
Richard C. Adamany, and Thomas F. McKee,, or any one of them, its
attorneys-in-fact and agents, each with full power of substitution and
resubstitution for it in any and all capacities, to sign any or all amendments
or post-effective amendments to this Registration Statement, and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, granting onto each of such
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary in connection with such matters and
hereby ratifying and confirming all that each of such attorneys-in-fact and
agents or his substitute or substitutes may do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed at
Bedford Heights, Ohio on May 17, 1996.
HEALTH O METER PRODUCTS, INC.
By: /S/PETER C. McC. HOWELL
----------------------------------
Peter C. McC. Howell
Chairman and Chief Executive Officer
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EXHIBIT 24.1
(Continued)
HEALTH O METER PRODUCTS, INC.
Certified Resolution
I, KATHRYN K. VANDERWIST, Assistant Secretary of Health o
meter Products, Inc., a Delaware corporation (the "Company") do hereby certify
that the following is a true copy of a resolution adopted by the Board of
Directors on August 4, 1995 and that the same has not been changed and remains
in full force and effect.
RESOLVED FURTHER, that Peter C. McC. Howell, S. Donald
McCullough, Richard C. Adamany, and Thomas F. McKee, be, and each of them hereby
is, appointed as the attorney of Health o meter Products, Inc., with full power
of substitution and resubstitution for and in the name, place and stead of the
Company to sign, attest and file a Registration Statement on Form S-8, or any
other appropriate form that may be used from time to time, with respect to the
issue and sale of the Shares, and any and all amendments, post-effective
amendments and exhibits to such Registration Statement and any and all
applications or other documents to be filed with the Securities and Exchange
Commission or any automated quotation system of a registered securities
association, including the NASDAQ Stock Market, pertaining to the quotation
thereon of the Shares covered by such Registration Statement or pertaining to
such registration and any and all applications or other documents to be filed
with any governmental or private agency or official relative to the issuance of
said Shares with full power and authority to do and perform any and all acts and
things whatsoever requisite and necessary to be done in the premises, hereby
ratifying and approving the acts of such attorneys or any such substitute or
substitutes and, without implied limitation, including in the above authority to
do the foregoing on behalf and in the name of any duly authorized officer of the
Company; and the Chairman and Chief Executive Officer of the Company be, and
hereby is authorized and directed for and on behalf of the Company to execute a
Power of Attorney evidencing the foregoing appointment
/S/KATHRYN K. VANDERWIST
------------------------
Kathryn K. Vanderwist,
Assistant Secretary
Dated: May 17, 1996
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HEALTH O METER PRODUCTS, INC.
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Sequential
Exhibit Number Description of Document Page
- -------------- ----------------------- ----
<S> <C>
4.1 1992 Stock Incentive Plan (A).
4.2 1995 Stock Option and Incentive Plan (A).
5.1 Opinion of Calfee, Halter & Griswold regarding
the validity of the securities being registered
(see page II-7 of this Registration Statement).
23.1 Consent of KPMG Peat Marwick LLP (see page II-8
of this Registration Statement).
23.2 Consent of Arthur Andersen LLP (see page II-9
of this Registration Statement).
23.3 Consent of Calfee, Halter & Griswold (see page
II-10 of this Registration Statement).
24.1 Power of Attorney and related Certified Resolution
(see pages II-11 and II-12 of this Registration
Statement).
<FN>
- --------------
(A) Incorporated herein by reference to the appropriate exhibit to the
Company's Proxy Statement dated March 31, 1995 used in connection with
its Annual Meeting of Stockholders held on April 27, 1995.
</TABLE>
E-1
