As filed with the Securities and Exchange Commission on April 17, 1997
Registration No. 33-________________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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ASAHI/AMERICA, INC.
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(Exact name of registrant as specified in its charter)
Massachusetts 04-2621836
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
35 Green Street, Malden, Massachusetts 02148
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(Address of Principal Executive Offices)
Employee Stock Purchase Plan
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(Full title of plan)
Leslie B. Lewis
President and Chief Executive Officer
Asahi/America, Inc.
19 Green Street
Malden, Massachusetts 02148
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(Name and address, including zip code, of agent for service)
(617) 321-5409
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(Telephone number, including area code of agent for service)
Copies to:
Marianne Gilleran, Esq.
Gadsby & Hannah LLP
225 Franklin Street
Boston, Massachusetts 02110
(617) 345-7000
<PAGE>
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
Title of each class Proposed maximum Proposed maximum
of securities to be Amount to be offering price per aggregate offering Amount of
registered registered share (*) price (*) registration fee
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par
value per share 150,000 $7.375 $1,106,250 $221.25
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
*Estimated solely for the purpose of computing the registration fee pursuant to
Rule 457(h) promulgated under the Securities Act of 1933, as amended, based upon
(i) $7.375, the average of the high and low prices as reported by the National
Association of Securities Dealers Automated Quotation System National Market
System for April 14, 1997 as to 150,000 shares.
The date of this Registration Statement is April 17, 1997.
<PAGE>
PART II
Information Required in the Registration Statement
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Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Asahi/America, Inc. (the "Company") are
incorporated in this registration statement by reference: the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1996, filed pursuant
to Section 13(a) of the Securities Exchange Act of 1934, as amended; and the
Company's Quarterly Report on Form 10-Q for the quarterly period ended September
30, 1996
The description of the Company's Common Stock contained in the
Prospectus dated May 15, 1996, included in the Company's Registration Statement
on Form S-1 (File No. 333-2314) as filed with the Commission on March 16, 1996,
as amended, effective on May 20, 1996.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior
to the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold, or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such documents. Such reports,
proxy statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Copies of such materials can also be obtained at
prescribed rates from the Public Reference Section of the Commission at its
principal offices at 450 Fifth Street, N.W., Washington, D.C. 20549.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 67 of Chapter 156B of the Massachusetts Business Corporation
Law provides that a corporation may indemnify its directors and officers to the
extent specified in or authorized by (i) the articles of organization; (ii) a
by-law adopted by the stockholders; or (iii) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election of directors.
In all instances, the extent to which a corporation provides indemnification to
its directors and officers under Section 67 is optional. The Restated Articles
of Organization and By-Laws of the Company permit the Company to indemnify an
officer or director in respect of claims made by reason of his status with the
Company including, all liabilities and expenses imposed upon or incurred by such
person in connection with or arising out of, the defense or disposition of any
action, suit or other proceeding. Expenses incurred in defense of such action
may be paid by the Company in advance of final disposition upon receipt of an
undertaking to repay if there is an ultimate determination that he is not
entitled to be indemnified.
The Company's Restated Articles of Organization eliminate the personal
liability of the Company's directors for monetary damages for the breach of
their fiduciary duty as directors to the Company and its stockholders,
notwithstanding any provision of law imposing such liability. The Company's
Restated Articles of Organization, however, do not eliminate liability of the
Company's directors for breach of the director's duty of loyalty to the Company
or its stockholders, acts or omissions not in good faith or involving
intentional misconduct or a knowing violation of law and actions leading to
improper personal benefit to the director, or under Section 61 or 62 of the
Massachusetts Business Corporation Law.
The Company's By-Laws, as amended, state that the Company shall provide
no indemnification with respect to any matter as to which any such director,
officer or other person shall be finally adjudicated in such action, suit or
proceeding not to have acted in good faith and the reasonable belief that his
action was in the best interest of the Company or, to the extent such a matter
relates to service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan.
The Company shall provide no indemnification with respect to any matter settled
or compromised, pursuant to a consent decree or otherwise, unless such
settlement or compromise shall have been approved as in the best interest of the
Company or, to the extent such matter relates to service with respect to any
employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan, after notice that indemnification
is involved by (i) a disinterested majority of the board of directors or (ii)
the holders of a majority of the outstanding stock entitled to elect directors,
voting as a single class, exclusive of any stock owned by any interested
director, officer or other person.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
- ------ -----------
4.1 The Company's Employee Stock Purchase Plan. Incorporated by reference
to Exhibit 4.3 to the Company's of the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1996 (File No. 0-28322).
4.2 Restated Articles of Organization of the Company. Incorporated by
reference to Exhibit 3.1 of the Company's Registration Statement on
Form S-1 (File No. 333-2314).
<PAGE>
4.3 Bylaws of the Company, as amended to date. Incorporated by reference to
Exhibit 3.2.1 to the Company's Registration Statement on Form S-1 (File
No. 333-2314).
5.1 Opinion of Gadsby & Hannah LLP as to legality of shares.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Gadsby & Hannah LLP (included in Exhibit 5.1).
24 Powers of Attorney.
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Item 9. Undertakings.
The Company hereby undertakes: (a) 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; 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 sections (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment by those
sections 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; (b) that, for purposes
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; and
(c) 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company'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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the Massachusetts Business Corporation Law, the Articles of Organization or
the Bylaws of the Company, or otherwise, the Company has been advised that in
the opinion of the 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
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 hereunder, the Company 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.
EXHIBIT 5.1
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Gadsby & Hannah LLP
225 Franklin Street
Boston MA 02110
April 14, 1997
Board of Directors
Asahi/America, Inc.
35 Green Street
Malden, MA 02148
Gentlemen:
You have requested our opinion, as counsel to Asahi/America, Inc. (the
"Company"), with respect to certain matters in connection with a proposed
offering of 150,000 shares of the Company's Common Stock, no par value (the
"Shares"), by the Company, pursuant to options granted and to be granted under
the Company's Employee Stock Purchase Plan (the "Plan"). The offering is to be
made pursuant to a Registration Statement on Form S-8 to be filed with the
Securities and Exchange Commission on or about April 15, 1997 (the "Registration
Statement").
In rendering this opinion we have reviewed, among other documents, the
Plan documents, the Company's Amended and Restated Articles of Organization and
Bylaws, as amended to date, and the proceedings of the Company's stockholders
and Board of Directors relating to the authorization and issuance of the Shares.
We have also considered such statutes, rules and regulations as we have deemed
relevant for the purposes hereof.
Based on the foregoing, it is our opinion that:
1. The Company is duly incorporated, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts.
2. The Shares to be sold by the Company, when issued and sold pursuant to
the Plan and options granted thereunder, will be legally authorized, validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to
the Registration Statement.
Very truly yours,
/s/ Gadsby & Hannah LLP
EXHIBIT 23.1
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accounts, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 21, 1997
included in Asahi/America, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1996 and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Boston, Massachusetts
April 14, 1997
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Malden, Commonwealth of Massachusetts, on April 16,
1997.
ASAHI/AMERICA, INC.
By /s/ Leslie B. Lewis
--------------------------------
Leslie B. Lewis,
President
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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Leslie B. Lewis President, Principal Executive April 16, 1997
- ------------------------------- Officer and Director
Leslie B. Lewis
/s/ Tadashi Kitamura Director April 16, 1997
- -------------------------------
Tadashi Kitamura
/s/ Kazuyuki Sato Director April 16, 1997
- -------------------------------
Kazuyuki Sato
/s/ Kazumitsu Yamaguchi Director April 16, 1997
- -------------------------------
Kazumitsu Yamaguchi
/s/ Nannette S. Lewis Director April 16, 1997
- -------------------------------
Nannette S. Lewis
/s/ Jeffrey C. Bloomberg Director April 16, 1997
- -------------------------------
Jeffrey C. Bloomberg
/s/ Samuel J. Gerson Director April 16, 1997
- -------------------------------
Samuel J. Gerson
/s/ Kozo Terada Vice President and April 16, 1997
- ------------------------------- Chief Financial Officer
Kozo Terada
</TABLE>
Exhibit 24
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Leslie B. Lewis and Kozo Terada,
individually, his attorneys-in-fact, with the power of substitution, for him in
any and all capacities, to sign any and all amendments to this Registration
Statement (including post-effective amendments), and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their respective substitutes, may do or cause to be
done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Leslie B. Lewis President, Principal Executive April 16, 1997
- ------------------------------- Officer and Director
Leslie B. Lewis
/s/ Tadashi Kitamura Director April 16, 1997
- -------------------------------
Tadashi Kitamura
/s/ Kazuyuki Sato Director April 16, 1997
- -------------------------------
Kazuyuki Sato
/s/ Kazumitsu Yamaguchi Director April 16, 1997
- -------------------------------
Kazumitsu Yamaguchi
/s/ Nannette S. Lewis Director April 16, 1997
- -------------------------------
Nannette S. Lewis
/s/ Jeffrey C. Bloomberg Director April 16, 1997
- -------------------------------
Jeffrey C. Bloomberg
/s/ Samuel J. Gerson Director April 16, 1997
- -------------------------------
Samuel J. Gerson
/s/ Kozo Terada Vice President, Treasurer and April 16, 1997
- ------------------------------- Principal Financial and
Kozo Terada Accounting Officer
</TABLE>
