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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 23, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN STONE INDUSTRIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 13-3704099
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(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
8705 Quarry Road
P.O. Box 261
Amherst, Ohio 44001
(Address of Principal Executive Offices, including Zip Code)
_________________
AMERICAN STONE INDUSTRIES, INC. 1998 AMERICAN STONE INDUSTRIES, INC.
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN 1998 MANAGEMENT STOCK OPTION PLAN
(Full Title of the Plans)
__________________
David Tyrrell
President and Chief Executive Officer
American Stone Industries, Inc.
8705 Quarry Road
P.O. Box 261
Amherst, Ohio 44001
(Name and Address of Agent for Service)
(440) 986-4501
(Telephone Number, including Area Code, of Agent for Service)
__________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Proposed
Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Aggregate Offering
Registered Registered Per Share (1) Price (1) Amount of Registration Fee
-------------------------------- ----------------- ---------------- ------------------------- -----------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, $.001 par value
per share, issuable upon
exercise of options 600,000 (2) $6.625 $3,975,000 $1,106.00
===========================================================================================================================
<FN>
(1) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee and based upon the average of the high
and low sales price of the Common Stock of American Stone Industries,
Inc. reported on the Nasdaq Bulletin Board on March 18, 1999, within
five business days prior to filing.
(2) Of the 600,000 shares of Common Stock being registered, 300,000 shares
are issuable upon exercise of options to be granted pursuant to the
American Stone Industries, Inc. 1998 Non-Employee Director Stock Option
Plan and 300,000 shares are issuable upon exercise of options to be
granted pursuant to the American Stone Industries, Inc. 1998 Management
Stock Option Plan.
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by American Stone Industries,
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference:
(i) The Company's Annual Report Form 10-KSB for the fiscal year
ended December 31, 1997, as amended on April 30, 1998;
(ii) The Company's Quarterly Reports on Form 10-QSB for the
quarterly periods ended March 31, 1998, June 30, 1998 and
September 30, 1998; and
(iii) The description of the Company's Common Stock, $.001 par
value, contained in the Registration Statement on Form 10-SB
filed with the Commission on April 11, 1997 pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), for purposes of registering such securities thereunder,
as amended on April 17, 1997 and July 30, 1997.
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 that indicates that all the securities offered have
been sold or that deregisters all securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents, other than the portions of such documents that
by statute, by designation in such document or otherwise, are not deemed to be
filed with the Commission or are not required to be incorporated herein by
reference.
Any statement contained in documents incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded, for purposes of this Registration Statement, to the
extent that a statement contained in this Registration Statement, or in any
other subsequently filed document that also is, or is deemed to be, incorporated
by reference in this Registration Statement, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law ("DGCL") empowers the Company to
indemnify, subject to the standards therein prescribed, any person in connection
with any action, suit or proceeding brought or threatened by reason of the fact
that such person was a Director, officer, employee or agent of the Company or is
or was serving as such with respect to another corporation at the request of the
Company. In addition, the DGCL authorizes corporations to limit or eliminate the
personal liability of
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directors to corporations and their stockholders for monetary damages for breach
of directors' fiduciary duty of care. Article TENTH of the Company's Certificate
of Incorporation, as amended (the "Certificate"), provides that the Company
shall indemnify all persons whom it may indemnify to the fullest extent
permitted by the DGCL.
Article EIGHTH of the Certificate provides that no Director of the
Company will be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a Director, provided that such
Article EIGHTH shall not eliminate or limit the liability of a Director: (i) for
breach of the Director's duty of loyalty to the Company or its stockholders;
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) for unlawful payments of
dividends or unlawful stock purchases or redemption by the Company or (iv) for
any transaction from which such Director derived an improper personal benefit.
Section 5.1 of the Company's Bylaws (the "Bylaws") provides that the
Company shall 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 Company), by reason of the fact that such person is or
was a Director or officer of the Company, or who is or was serving at the
request of the Company as a Director, trustee, officer or employee of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees), judgments, decrees, fines penalties and
amounts incurred by such person in connection with such action, suit or
proceeding if he or she 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 Company, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful.
Section 5.2 of the Bylaws provides that the Company shall 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
Company to procure a judgment in its favor, by reason of the fact that such
person is or was a Director or officer of the Company, or who is or was serving
at the request of the Company as a Director, trustee, officer or employee of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit
if he or she 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 Company, and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his or her duty to the Company unless and only
to the extent that the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 5.3 of the Bylaws provides that to the extent a Director or
officer has been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to above, or in the defense of any claim, issue or
matter therein, he or she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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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;
(ii) To reflect in the prospectus any facts or events
which, individually or together, represent a fundamental
change in the information in the 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 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 additional or changed material
information on the plan of distribution;
Small business issuers do not need to give the statements in paragraphs
(a)(1)(i) and (a)(1)(ii) 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 is incorporated by reference from periodic
reports filed by the small business issuer under the Exchange Act.
(2) That, for determining liability under the Securities Act,
treat each post-effective amendment as a new registration statement of
the securities offered, and the offering of the securities at that time
to be the initial bona fide offering.
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold at the end of the
offering.
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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 the City of Cleveland, State of Ohio, on this 23rd day of March,
1999.
AMERICAN STONE INDUSTRIES, INC.
By: /s/ David Tyrrell
-------------------------------------
David Tyrrell
President 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 indicated on March 23, 1999.
SIGNATURES AND TITLES
/s/ David Tyrrell /s/ Jacquita K. Hauserman
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David Tyrrell Jacquita K. Hauserman
President and Chief Executive Officer Director
(Principal Executive Officer)
/s/ Enzo Costantino /s/ Michael J. Meier
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Enzo Costantino Michael J. Meier
Treasurer and Chief Financial Officer Secretary and Director
(Principal Financial and Accounting
Officer)
/s/ Thomas H. Roulston II /s/ Timothy I. Panzica
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Thomas H. Roulston II Timothy I. Panzica
Chairman of the Board Director
/s/ Glen Gasparini /s/ Louis Stokes
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Glen Gasparini Louis Stokes
Director Director
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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4.1 Certificate of Incorporation of Viva Designs U.S.A., Inc.,
dated November 13, 1992 (A)
4.2 Certificate of Amendment of the Certificate of Incorporation of
Viva Designs U.S.A., Inc., dated March 9, 1993 (A)
4.3 Certificate of Amendment of the Certificate of Incorporation of
Viva Designs U.S.A., Inc., dated December 14, 1993 (A)
4.4 Certificate of Amendment of the Certificate of Incorporation of
Viva Designs U.S.A., Inc., dated May 31, 1994 (A)
4.5 Certificate of Amendment of the Certificate of Incorporation of
Viva Designs U.S.A., Inc., dated August, 1995 (A)
4.6 Certificate of Amendment of the Certificate of Incorporation of
American Stone Industries, Inc., dated June 24, 1998 (B)
4.7 Bylaws of American Stone Industries, Inc. (A)
4.8 American Stone Industries, Inc. 1998 Management Stock Option
Plan (B)
4.9 American Stone Industries, Inc. 1998 Non-Employee Director
Stock Option Plan (B)
5.1 Opinion of Calfee, Halter & Griswold LLP as to the validity of
the securities being offered
23.1 Consent of Hobe & Lucas
23.2 Consent of Calfee, Halter & Griswold LLP (included in Exhibit
5.1)
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(A) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Registration Statement on Form 10-SB, as amended.
(B) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Quarterly Report on Form 10-QSB for the quarterly period
ended September 30, 1998.
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EXHIBIT 5.1
CALFEE, HALTER & GRISWOLD LLP
ATTORNEYS AT LAW
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1400 McDonald Investment Center
800 Superior Avenue Cleveland, Ohio 44114-2688
216/622-8200 Fax 216/241-0816
March 23, 1999
American Stone Industries, Inc.
8705 Quarry Road
P.O. Box 261
Amherst, Ohio 44001
We are acting as counsel for American Stone Industries, Inc.,
a Delaware corporation (the "Company"), with respect to the 600,000 shares of
the Company's Common Stock, par value $.001 per share (the "Plan Shares"), to be
offered and sold from time to time pursuant to the American Stone Industries,
Inc. 1998 Management Stock Option Plan and the American Stone Industries, Inc.
1998 Non-Employee Director Stock Option Plan (collectively, the "Plans"). 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 the
Plan Shares under the Securities Act of 1933, as amended.
We have examined such documents, records and matters of law as
we have deemed necessary for purposes of this opinion, and based thereon we are
of the opinion that the Plan Shares have been duly authorized and, when issued
and sold from time to time in the manner contemplated by the Plans and the
Registration Statement, will be validly issued, fully paid and nonassessable.
This opinion is limited to the General Corporation Law of the
State of Delaware, and we express no opinion as to the effect of any other law
on the opinions set forth herein.
This opinion is intended solely for your use in connection
with the filing of the Registration Statement with respect to the Plan Shares,
and may not be reproduced, filed publicly or relied upon by any other person for
any purpose without the express written consent of the undersigned.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement.
Respectfully submitted,
/s/ Calfee, Halter & Griswold LLP
CALFEE, HALTER & GRISWOLD LLP
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EXHIBIT 23.1
HOBE & LUCAS
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Crown Centre, Suite 430
5005 Rockside Road
Independence, Ohio 44131
Tel: (216) 524-8900
Fax: (216) 524-8777
March 22, 1999
Mr. David Tyrrell
President and Chief Executive Officer
American Stone Industries, Inc.
8705 Quarry Road
P.O. Box 261
Amherst, OH 44001
RE: Consent to Incorporation of Independent
Auditors' Report
Dear Mr. Tyrrell:
This firm was the independent auditor for American Stone Industries,
Inc. (The "Company") for the fiscal year ended December 31, 1997. In this
context, we understand that the Company is in the process of preparing and
filing a Form S-8 with the Securities and Exchange Commission.
Pursuant to Rule 601(b)(23), this letter will serve as our consent for
the Company to incorporate by reference in the Form S-8, our Independent
Auditors' Report dated January 30, 1998 for fiscal year ended December 31, 1997
filed with the annual report Form 10-KSB and to the reference of Hobe & Lucas,
Certified Public Accountants, Inc., therein.
/s/ Hobe & Lucas
Hobe & Lucas,
Certified Public Accountants, Inc.
