Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SHOPSMITH, INC.
(Exact name of registrant as specified in its charter)
OHIO 31-0811466
(State of Incorporation) (I.R.S. Employer Identification No.)
6530 POE AVENUE, DAYTON, OHIO 45414
(Address of Principal Executive Offices) (Zip Code)
1988 DIRECTOR OPTION PLAN
(Full title of the plan)
J. MICHAEL HERR
THOMPSON HINE & FLORY LLP
P. O. BOX 8801
2000 COURTHOUSE PLAZA N.E.
DAYTON, OHIO 45401
(Name and address of agent for service)
(937) 443-6615
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Amount maximum maximum Amount of
securities to be offering aggregate registrati
to be registe price per offering on
registered red share price fee
Common 9,582 $ .67 $ 6,419.94(1)
Shares
37,932 $1.00 37,932.00(1)
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47,514 $44,351.94 $13.44
(1)Calculated in accordance with Rule 457(h)(l) based on the price at
which outstanding options may be exercised under the Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference as of their respective
dates of filing:
(a) The Annual Report of Shopsmith, Inc. (the "Company") on
Form 10-K for the year ended March 30, 1996, filed pursuant to
Section 13 of the Securities Exchange Act of 1934 ("Exchange
Act").
(b) The Company's Quarterly Report on Form 10-Q for the
quarter ended June 29, 1996, filed pursuant to Section 13 of the
Exchange Act.
(c) The Company's Quarterly Report on Form 10-Q for the
quarter ended September 28, 1996, filed pursuant to Section 13 of
the Exchange Act.
(d) The description of the Company's Common Shares contained
in the Registration Statement filed pursuant to Section 12 of the
Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company 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 Common
Shares offered hereunder have been sold or which deregisters all
Common Shares then remaining unsold hereunder shall be deemed to be
incorporated by reference herein 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.
Thompson Hine & Flory LLP has provided a legal opinion to the
Company with respect to the Common Shares of the Company being
registered. J. Michael Herr, a partner in the firm of Thompson Hine &
Flory LLP, is a director and Secretary of the Company.
Item 6. Indemnification of Directors and Officers.
Section 5 of Article III of the Company's Amended Code of
Regulations (the "Regulations") sets forth the circumstances under
which the Company is required to indemnify its directors and officers.
These provisions are based on Section 1701.13 of the General
Corporation Law of Ohio ("Section 1701.13"), which provides that an
Ohio corporation shall have the power to indemnify its directors and
officers.
The Regulations and Section 1701.13 distinguish between (a)
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actions, suits or proceedings other than those brought (or threatened
to be brought) by or in the right of the Company (referred to herein
as "third party actions"), and (b) actions, suits or proceedings
brought (or threatened to be brought) by or in the right of the
Company (referred to herein as "derivative actions"). In third party
actions, Section 1701.13 permits, and the Regulations require, the
Company to indemnify a director or officer against expenses, including
attorneys' fees, judgments, fines, and amounts paid in settlement,
actually and reasonably incurred by him in connection with any such
action in which he may be involved by reason of his having acted in
such capacity, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company,
and, with respect to any matter which is the subject of a criminal
proceeding, he had no reasonable cause to believe that his conduct was
unlawful.
In the case of derivative actions, Section 1701.13 permits,
and the Regulations require, the Company to indemnify a director or
officer against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the defense or
settlement of such action if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
the Company, except that no indemnification may be made with respect
to any matter as to which he has been adjudged to be liable for
negligence or misconduct in the performance of his duty to the Company
unless a court determines that he is entitled to indemnification.
Unless indemnification in respect of a third party action or
derivative action is ordered by a court, the determination as to
whether or not an individual has satisfied the applicable standard of
conduct (and therefore may be indemnified) must be made by the board
of directors by a majority vote of a quorum consisting of directors of
the Company who were not parties to the action; or if such a quorum is
not obtainable, or if a quorum of disinterested directors so directs,
by independent legal counsel in a written opinion; or by the
shareholders.
To the extent that a director or officer is successful on the
merits or otherwise in defense of any third party action or derivative
action, Section 1701.13 and the Regulations require the Company to
indemnify such director or officer against expenses, including
attorneys' fees, actually and reasonably incurred in connection with
the action, suit or proceeding without consideration of the applicable
standards of conduct.
The Regulations and Section 1701.13 expressly provide that
they are not exclusive and that they do not limit any other
indemnification rights to which those seeking indemnification may be
entitled.
The Company maintains insurance policies that presently
provide protection, within the maximum liability limits of the
policies and subject to a deductible amount for each claim, to the
Company under its indemnification obligations and to the directors and
officers with respect to certain matters that are not covered by the
Company's indemnification obligations.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Index to Exhibits following signature pages.
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;
(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 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 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 a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration" 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 the undertakings set forth in paragraphs (i)
and (ii) above do not apply if the information required to be included
in a post- effective amendment by those paragraphs is contained in
periodic reports filed with 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 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 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 further undertakes that,
for purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
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Section 13(a) or 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 therein, 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 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.
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 Dayton, State
of Ohio, on this 6th day of December, 1996.
SHOPSMITH, INC.
By /s/ John R. Folkerth
John R. Folkerth
Chairman of the Board and
Chief Executive Officer
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:
Name Title Date
/s/ John R. Folkerth Director, Chairman of December 6, 1996
John R. Folkerth the Board and Chief Executive
Officer (principal executive
officer)
/s/ William C. Becker Vice President of December 6, 1996
William C. Becker Finance and Treasurer
(principal financial
and accounting officer)
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Robert L. Folkerth* Director December 6, 1996
Robert L. Folkerth
J. Michael Herr* Director December 6, 1996
J. Michael Herr
Edward A. Nicholson* Director December 6, 1996
Edward A. Nicholson
John L. Schaefer* Director December 6, 1996
John L. Schaefer
Director December 6, 1996
Brady L. Skinner
Richard L. Snell* Director December 6, 1996
Richard L. Snell
* The undersigned, by signing his name hereto, executes this
Registration Statement on Form S-8 pursuant to powers of attorney
executed by the above-named persons which are included as exhibits to
this Registration Statement.
/s/ John R. Folkerth
John R. Folkerth
Attorney-in-Fact
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INDEX TO EXHIBITS
(4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS,
INCLUDING INDENTURES:
4.1 Amended Articles of Incorporation of Shopsmith,
Inc., filed as Exhibit 4.1 to the Company's Registration
Statement on Form S-8 (Reg. No. 33-26463) 2
4.2 Amended Code of Regulations of Shopsmith, Inc.,
filed as Exhibit 4.2 to the Company's Registration
Statement on Form S-8 (Registration No. 33-26463) 2
(5) OPINION RE LEGALITY:
5.1 Opinion of Thompson Hine & Flory LLP 1
(23) CONSENTS OF EXPERTS AND COUNSEL:
23.1 Consent of Crowe, Chizek and Company LLP 1
23.2 Consent of Thompson Hine & Flory LLP (included in
the opinion filed as Exhibit 5.1) 1
(24) POWERS OF ATTORNEY:
24.1 Manually-signed Powers of Attorney of certain
persons authorizing execution of this Registration
Statement and amendments hereto on behalf of such persons
by the attorneys-in-fact named therein 1
1 - Filed herewith
2 - Incorporated by Reference
PCN3442.SKC
<PAGE>
EXHIBIT 5.1
THOMPSON HINE & FLORY LLP
2000 Courthouse Plaza N.E.
Dayton, OH 45402-1706
December 6, 1996
Shopsmith, Inc.
6530 Poe Avenue
Dayton, OH 45414
Ladies and Gentlemen:
We have acted as counsel to Shopsmith, Inc., an Ohio
corporation ("Shopsmith"), in connection with the Shopsmith, Inc. 1988
Director Option Plan (the "Plan") and the preparation of Shopsmith's
Registration Statement on Form S-8 being filed with the Securities and
Exchange Commission in connection therewith.
Please be advised that we have examined such proceedings and
records of Shopsmith, and have made investigation of such other
matters, as in our judgment permits us to render an informed opinion
on the matters set forth herein.
Based upon the foregoing, it is our opinion that the Common
Shares of Shopsmith to be issued by Shopsmith pursuant to the Plan
have been duly authorized and, when sold and paid for in accordance
with the terms of the Plan, will be legally issued, fully paid and
non-assessable.
We consent to the use of this opinion as an exhibit to
Shopsmith's Registration Statement on Form S-8 with respect to the
Plan and to the use of our firm name, and the statements made with
respect to us, appearing under Item 5 of Part II of such Registration
Statement.
Very truly yours,
/s/ THOMPSON HINE & FLORY LLP
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Shopsmith, Inc. on Form S-8 of our report dated June 3,
1996, appearing in the Annual Report on Form 10-K of Shopsmith, Inc.
for the year ended March 30, 1996.
/s/ CROWE, CHIZEK AND COMPANY LLP
Columbus, OH
December 4, 1996
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EXHIBIT 24.1
POWERS OF ATTORNEY
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SHOPSMITH, INC.
POWER OF ATTORNEY
WHEREAS, Shopsmith, Inc., an Ohio corporation (the "Company"),
proposes to file with the Securities and Exchange Commission a
Registration Statement on Form S-8 under the Securities Act of 1933 in
connection with the Shopsmith, Inc. 1988 Director Option Plan (the
"Registration Statement');
NOW, THEREFORE, the undersigned, in the undersigned's capacity
as a director of the Company, hereby appoints John R. Folkerth and
William C. Becker, and each of them severally, lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, to
execute in the undersigned's name, place and stead, as aforesaid, the
Registration Statement and any amendments to the Registration
Statement and any and all other instruments necessary or incidental in
connection therewith, and to file the same with the Securities and
Exchange Commission. Each of such attorneys shall have full power and
authority to do and perform, in the name and on behalf of the
undersigned, every act whatsoever necessary or desirable to be done,
as fully to all intents and purposes as the undersigned might or could
do in person. The undersigned hereby ratifies and approves the acts of
such attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this
instrument this 5th day of November, 1996.
/s/ John R. Folkerth
John R. Folkerth
<PAGE>
SHOPSMITH, INC.
POWER OF ATTORNEY
WHEREAS, Shopsmith, Inc., an Ohio corporation (the "Company"),
proposes to file with the Securities and Exchange Commission a
Registration Statement on Form S-8 under the Securities Act of 1933 in
connection with the Shopsmith, Inc. 1988 Director Option Plan (the
"Registration Statement');
NOW, THEREFORE, the undersigned, in the undersigned's capacity
as a director of the Company, hereby appoints John R. Folkerth and
William C. Becker, and each of them severally, lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, to
execute in the undersigned's name, place and stead, as aforesaid, the
Registration Statement and any amendments to the Registration
Statement and any and all other instruments necessary or incidental in
connection therewith, and to file the same with the Securities and
Exchange Commission. Each of such attorneys shall have full power and
authority to do and perform, in the name and on behalf of the
undersigned, every act whatsoever necessary or desirable to be done,
as fully to all intents and purposes as the undersigned might or could
do in person. The undersigned hereby ratifies and approves the acts of
such attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this
instrument this 5th day of November, 1996.
/s/ J. Michael Herr
J. Michael Herr
<PAGE>
SHOPSMITH, INC.
POWER OF ATTORNEY
WHEREAS, Shopsmith, Inc., an Ohio corporation (the "Company"),
proposes to file with the Securities and Exchange Commission a
Registration Statement on Form S-8 under the Securities Act of 1933 in
connection with the Shopsmith, Inc. 1988 Director Option Plan (the
"Registration Statement');
NOW, THEREFORE, the undersigned, in the undersigned's capacity
as a director of the Company, hereby appoints John R. Folkerth and
William C. Becker, and each of them severally, lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, to
execute in the undersigned's name, place and stead, as aforesaid, the
Registration Statement and any amendments to the Registration
Statement and any and all other instruments necessary or incidental in
connection therewith, and to file the same with the Securities and
Exchange Commission. Each of such attorneys shall have full power and
authority to do and perform, in the name and on behalf of the
undersigned, every act whatsoever necessary or desirable to be done,
as fully to all intents and purposes as the undersigned might or could
do in person. The undersigned hereby ratifies and approves the acts of
such attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this
instrument this 5th day of November, 1996.
/s/ Edward A. Nicholson
Edward A. Nicholson
<PAGE>
SHOPSMITH, INC.
POWER OF ATTORNEY
WHEREAS, Shopsmith, Inc., an Ohio corporation (the "Company"),
proposes to file with the Securities and Exchange Commission a
Registration Statement on Form S-8 under the Securities Act of 1933 in
connection with the Shopsmith, Inc. 1988 Director Option Plan (the
"Registration Statement');
NOW, THEREFORE, the undersigned, in the undersigned's capacity
as a director of the Company, hereby appoints John R. Folkerth and
William C. Becker, and each of them severally, lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, to
execute in the undersigned's name, place and stead, as aforesaid, the
Registration Statement and any amendments to the Registration
Statement and any and all other instruments necessary or incidental in
connection therewith, and to file the same with the Securities and
Exchange Commission. Each of such attorneys shall have full power and
authority to do and perform, in the name and on behalf of the
undersigned, every act whatsoever necessary or desirable to be done,
as fully to all intents and purposes as the undersigned might or could
do in person. The undersigned hereby ratifies and approves the acts of
such attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this
instrument this 5th day of November, 1996.
/s/ Robert L. Folkerth
Robert L. Folkerth
<PAGE>
SHOPSMITH, INC.
POWER OF ATTORNEY
WHEREAS, Shopsmith, Inc., an Ohio corporation (the "Company"),
proposes to file with the Securities and Exchange Commission a
Registration Statement on Form S-8 under the Securities Act of 1933 in
connection with the Shopsmith, Inc. 1988 Director Option Plan (the
"Registration Statement');
NOW, THEREFORE, the undersigned, in the undersigned's capacity
as a director of the Company, hereby appoints John R. Folkerth and
William C. Becker, and each of them severally, lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, to
execute in the undersigned's name, place and stead, as aforesaid, the
Registration Statement and any amendments to the Registration
Statement and any and all other instruments necessary or incidental in
connection therewith, and to file the same with the Securities and
Exchange Commission. Each of such attorneys shall have full power and
authority to do and perform, in the name and on behalf of the
undersigned, every act whatsoever necessary or desirable to be done,
as fully to all intents and purposes as the undersigned might or could
do in person. The undersigned hereby ratifies and approves the acts of
such attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this
instrument this 5th day of November, 1996.
/s/ John L. Schaefer
John L. Schaefer
<PAGE>
SHOPSMITH, INC.
POWER OF ATTORNEY
WHEREAS, Shopsmith, Inc., an Ohio corporation (the "Company"),
proposes to file with the Securities and Exchange Commission a
Registration Statement on Form S-8 under the Securities Act of 1933 in
connection with the Shopsmith, Inc. 1988 Director Option Plan (the
"Registration Statement');
NOW, THEREFORE, the undersigned, in the undersigned's capacity
as a director of the Company, hereby appoints John R. Folkerth and
William C. Becker, and each of them severally, lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, to
execute in the undersigned's name, place and stead, as aforesaid, the
Registration Statement and any amendments to the Registration
Statement and any and all other instruments necessary or incidental in
connection therewith, and to file the same with the Securities and
Exchange Commission. Each of such attorneys shall have full power and
authority to do and perform, in the name and on behalf of the
undersigned, every act whatsoever necessary or desirable to be done,
as fully to all intents and purposes as the undersigned might or could
do in person. The undersigned hereby ratifies and approves the acts of
such attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this
instrument this 5th day of November, 1996.
/s/ Richard L. Snell
Richard L. Snell
