<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 4, 1996
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
STEINWAY MUSICAL INSTRUMENTS, INC.
------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 35-1910745
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
600 INDUSTRIAL PARKWAY
ELKHART, INDIANA 46516
(219) 522-1675
(Address, including Zip Code, and Telephone Number, including
Area Code, of Registrant's Principal Executive Offices)
----------------------------------------
STEINWAY MUSICAL INSTRUMENTS, INC. 1996 STOCK PLAN
STEINWAY MUSICAL INSTRUMENTS, INC. 1996 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
----------------------------------------
MR. DENNIS HANSON
STEINWAY MUSICAL INSTRUMENTS, INC.
600 INDUSTRIAL PARKWAY
ELKHART, INDIANA 46516
(Name and Address of Agent For Service)
(617) 894-9770
(Telephone Number, Including Area Code, of Agent For Service)
COPY TO:
ERIC H. SCHUNK, ESQ.
MILBANK, TWEED, HADLEY & MCCLOY
601 SOUTH FIGUEROA STREET
LOS ANGELES, CALIFORNIA 90017
(213) 892-4000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) SHARE (2) PRICE (2) FEE
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Ordinary Common Stock,
par value $0.001 per share 1,278,250 $19.00 $21,822,115 $7,524.85
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) There are also registered hereby such indeterminate number of shares of
Ordinary Common Stock, par value $.001 per share (the "Ordinary Common
Stock"), of the Registrant as may become issuable by reason of operation of
the anti-dilution provisions of the Registrant's 1996 Stock Plan (the
"Stock Plan") and the 1996 Employee Stock Purchase Plan (the "Purchase
Plan") described herein.
(2) Pursuant to Rule 457 under the Securities Act of 1933, as amended, the
proposed maximum offering price per share and the proposed maximum
aggregate offering price are estimated solely for purposes of calculating
the registration fee and are based on: (i) options to purchase 561,500
shares of Ordinary Common Stock at $19.00 per share granted on July 24,
1996 pursuant to the Stock Plan; (ii) an offering to purchase 125,000
shares of Ordinary Common Stock at $15.51 per share made on August 8, 1996
pursuant to the Purchase Plan; (iii) 216,750 shares of Ordinary Common
Stock remaining for grants pursuant to the Stock Plan based on the average
of the high and low prices per share of Ordinary Common Stock trading on
the New York Stock Exchange on September 3, 1996, $17.38 (the "September 3
Price"); and (iv) 375,000 shares of Ordinary Common Stock remaining for
offerings pursuant to the Purchase Plan based on (a) the September 3 Price
multiplied by (b) 85%, the discount factor for purchases of Ordinary Common
Stock for participants in the Purchase Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN EACH SECTION 10(A) PROSPECTUS
Item 1. PLAN INFORMATION
Information required by Part I to be contained in each Section 10(a)
Prospectus is omitted from the Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act"), and the
Note to Part I on Form S-8. The documents containing the information specified
in Part I of Form S-8 will be sent or given to participating employees as
specified by Rule 428(b)(1) under the Securities Act. These documents and the
documents incorporated by reference into this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The Registrant will, upon written or oral request, provide without
charge to any person to whom each Prospectus relating to this Registration
Statement is delivered, a copy of any and all of the information which has been
incorporated by reference in such Prospectus and this Registration Statement
(pursuant to Item 3 of Part II below) as well as other documents required by
Rule 428(b) promulgated pursuant to the Securities Act. Such requests should be
directed to the Chief Financial Officer, Steinway Musical Instruments, Inc., 600
Industrial Parkway, Elkhart, Indiana 46516 (Telephone Number: (219) 522-1675).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities
and Exchange Commission are incorporated by reference in this Registration
Statement:
(c) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995 filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(d) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 29, 1996 filed pursuant to Section 13(a) of the Exchange Act.
(e) The description of the Ordinary Common Stock contained in the
Registration Statement on Form 8-A filed by the Registrant under Section 12
of the Exchange Act on July 10, 1996.
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<PAGE>
All documents subsequently filed by the Registrant 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 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 filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein 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. 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.
Only securities registered under Section 12 of the Exchange Act are
being offered.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Sections 102 and 145 of the Delaware General
Corporation Law, the Registrant's certificate of incorporation eliminates a
director's personal liability for monetary damages to the Registrant and its
stockholders arising from a breach or alleged breach of a director's fiduciary
duty except for liability under Section 174 of the Delaware General Corporation
Law or liability for any breach of the director's duty of loyalty to the
Registrant or its stockholders, for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law or for any
transaction in which the director derived an improper personal benefit. Article
Sixth of the Registrant's certificate of incorporation eliminates the rights of
the Registrant and its stockholders (through stockholders' derivative suits on
behalf of the Registrant) to recover monetary damages against a director for
breach of fiduciary duty as a director (including breaches resulting from
negligent or grossly negligent behavior) except in the situations described
above.
The Registrant's bylaws provide for indemnification of officers,
directors, employees and agents of the Registrant (the "Indemnitees"). Under
the bylaws, the Registrant must indemnify an Indemnitee to the fullest extent
permitted by applicable law for losses and expenses incurred in connection with
actions in which the Indemnitee is involved by reason of having been an officer,
director, employee or agent of the Registrant. The Registrant is also obligated
to advance expenses an Indemnitee may incur in connection with such actions
before any resolution of the action.
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<PAGE>
The Registrant also maintains directors' and officers' liability
insurance.
Item 8. EXHIBITS.
4.1 Restated Certificate of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.1 to the Registrant's Registration Statement
on Form S-1 (No. 333-3667)).
4.2 Corrected Amendment to Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1 (No. 333-3667)).
4.3 Form of Amendment to Restated Certificate of Incorporation of
Registrant (incorporated by reference to Exhibit 3.3 to the
Registrant's Registration Statement on Form S-1 (No. 333-3667)).
4.4 Bylaws of the Registrant (incorporated by reference to Exhibit 3.4 to
the Registrant's Registration Statement on Form S-1 (No. 333-3667)).
4.5 Amendment No. 1 to Bylaws of the Registrant (incorporated by reference
to Exhibit 3.5 to the Registrant's Registration Statement on Form S-1
(No. 333-3667)).
4.6 Specimen Certificate (incorporated by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-1 (No. 333-3667)).
4.7 Steinway Musical Instruments, Inc. 1996 Stock Plan (incorporated by
reference to Exhibit 10.16 to Registrant's Registration Statement on
Form S-1 (No. 333-3667)).
4.8 Steinway Musical Instruments, Inc. 1996 Employee Stock Purchase Plan.
5.1 Opinion of Milbank, Tweed, Hadley & McCloy.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Milbank, Tweed, Hadley & McCloy (included in their opinion
filed as Exhibit 5.1).
24.1 Powers of Attorney (contained on the signature page hereof).
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<PAGE>
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 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;
(2) That, for the purpose of determining any liability under the
Securities Act, 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 undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act, (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
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
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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
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<PAGE>
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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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Los
Angeles, State of California on this 5th day of September, 1996.
STEINWAY MUSICAL INSTRUMENTS, INC.
By: /s/ Dana D. Messina
--------------------------------
Dana D. Messina
CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kyle R. Kirkland, Dana D. Messina, Thomas
Burzycki, Bruce Stevens, Dennis Hanson and Michael R. Vickrey and each of them,
his true and lawful attorney-in-fact and agent, 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, 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 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 substitute or
substitutes, may lawfully do or cause to be done by virtue hereof and the
Registrant hereby confers like authority on its behalf.
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<PAGE>
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 this 5th day of September, 1996.
SIGNATURE TITLE
--------- -----
/s/ Dana D. Messina Director and Chief Executive Officer
- ----------------------------------- (Principal Executive Officer)
Dana D. Messina
/s/ Dennis Hanson Chief Financial Officer
- ----------------------------------- (Principal Financial Officer)
Dennis Hanson
/s/ Michael R. Vickrey Executive Vice President
- ----------------------------------- (Principal Accounting Officer)
Michael R. Vickrey
/s/ Kyle R. Kirkland Director
- -----------------------------------
Kyle R. Kirkland
/s/ Thomas Burzycki Director
- -----------------------------------
Thomas Burzycki
/s/ Bruce Stevens Director
- -----------------------------------
Bruce Stevens
/s/ Peter McMillan Director
- -----------------------------------
Peter McMillan
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<PAGE>
EXHIBITS
Exhibit
Number Description
- ------- -------------
4.1 Restated Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 to the Registrant's Registration Statement on
Form S-1 (No. 333-3667)).
4.2 Corrected Amendment to Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1 (No. 333-3667)).
4.3 Form of Amendment to Restated Certificate of Incorporation of Registrant
(incorporated by reference to Exhibit 3.3 to the Registrant's
Registration Statement on Form S-1 (No. 333-3667)).
4.4 Bylaws of the Registrant (incorporated by reference to Exhibit 3.4 to the
Registrant's Registration Statement on Form S-1 (No. 333-3667)).
4.5 Amendment No. 1 to Bylaws of the Registrant (incorporated by reference to
Exhibit 3.5 to the Registrant's Registration Statement on Form S-1 (No.
333-3667)).
4.6 Specimen Certificate (incorporated by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-1 (No. 333-3667)).
4.7 Steinway Musical Instruments, Inc. 1996 Stock Plan (incorporated by
reference to Exhibit 10.16 to Registrant's Registration Statement on Form
S-1 (No. 333-3667)).
4.8 Steinway Musical Instruments, Inc. 1996 Employee Stock Purchase Plan.
5.1 Opinion of Milbank, Tweed, Hadley & McCloy.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Milbank, Tweed, Hadley & McCloy (included in their opinion
filed as Exhibit 5.1).
24.1 Powers of Attorney (contained on the signature page hereof).
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<PAGE>
Exhibit 4.8
STEINWAY MUSICAL INSTRUMENTS, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSES
The purposes of the Steinway Musical Instruments, Inc. 1996 Employee Stock
Purchase Plan (the "Plan") are (a) to provide an incentive for Eligible
Employees (as defined below) to continue devoting their best efforts to the
success of the Company and (b) to afford such employees an opportunity to obtain
a proprietary interest in the continued growth and prosperity of the Company
through ownership of its Ordinary Common Stock acquired in a convenient fashion.
2. DEFINITIONS
Whenever used in the Plan:
A. "Alternative Offering Price" means 85% of the Fair Market Value of
Shares on the last day of the Purchase Period.
B. "Board" means the Board of Directors of the Company.
C. "Code" means the Internal Revenue Code of 1986, as amended.
D. "Committee" means the Board or such committee of the Board that shall
be designated to administer the Plan.
E. "Company" means Steinway Musical Instruments, Inc. and its
wholly-owned subsidiaries now existing as of the effective date of the adoption
of the Plan or thereafter acquired.
F. "Compensation" means the annual rate of salary in effect for an
Eligible Employee on a Date of Offering.
G. "Date of Offering" means that day which has been specified by the
Board for any offering made under the Plan and which occurs (1) within the first
15 days of each August during the term of the Plan or (2) within the first 15
days after the effective date of the Plan.
H. "Eligible Employee" means any person employed by the Company on a Date
of Offering during the term of the Plan, other than: (1) any employee who has
been employed by the Company for less than one year on such Date of Offering;
(2) any employee who, immediately after the grant of an option hereunder, would
own (within the meaning of Section 424(d) of the Code) Shares (including Shares
which such employee may purchase under outstanding options) possessing 5% or
more of the total combined voting power or value of all classes of the capital
stock of the Company; (3) any employee whose customary employment is 20 hours or
less per week; (4) any employee whose customary employment is for not more than
five months in any calendar year; or (5) any highly compensated employee (within
the meaning of Section 414(q) of the Code) who is a member of the Board or who
is otherwise subject to the provisions of Section 16 of the Securities Exchange
Act of 1934, as amended.
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<PAGE>
I. "Fair Market Value" means the simple average, on a given day or, if no
sales of Shares were made on that day, the simple average on the next preceding
day on which sales were made, of the high and low prices per Share on the
principal national securities exchange on which the Shares are then traded or,
if the Shares are not then traded on a national securities exchange, the simple
average of the bid and asked price per Share on the over-the-counter market as
reported by NASDAQ. If, at the time an option is granted under the Plan, the
Company's Shares are not publicly traded, "Fair Market Value" shall be deemed to
be the fair value per Share determined by the Board after taking into
consideration all factors which it deems appropriate, including, without
limitation, recent sale and offer prices of the Shares in private transactions
negotiated at arm's length.
J. "Offering Price" means 85% of the Fair Market Value of Shares on a
Date of Offering.
K. "Purchase Period" means, with respect to an offering under the Plan,
the period commencing on the Date of Offering and ending twelve (12) months
thereafter.
L. "Shares" means shares of Ordinary Common Stock, $.001 par value per
share, of the Company.
3. SCOPE OF PLAN
Options to purchase Shares may be granted by the Company to Eligible
Employees during the ten-year period commencing on the effective date of the
Plan, as hereinafter provided, but not more than 500,000 Shares shall be
purchased pursuant to such options. All employees granted options pursuant to
the Plan shall have the same rights and privileges. The Shares delivered by the
Company pursuant to the Plan may be treasury shares, newly issued shares or
both.
4. OFFERINGS
Subject to the terms and conditions of the Plan, the Board shall make an
offering on a specified day during the first 15 days after the effective date of
the Plan and thereafter an annual offering on a specified day during the first
15 days of August to Eligible Employees to purchase Shares under the Plan;
provided, however, that the Board may, in its discretion, determine to make no
offering in any given year. The terms and conditions for each such offering
shall specify the Date of Offering, the Offering Price, and the number of Shares
that may be purchased thereunder. During the Purchase Period, payroll
deductions shall be made from the Compensation of Eligible Employees accepting
an option under an offering hereunder.
5. NUMBER OF SHARES EACH ELIGIBLE EMPLOYEE MAY PURCHASE
A. Subject to the provisions of the Plan, and as to any offering made
hereunder, each Eligible Employee shall be offered an option to purchase that
number of whole Shares which has on the Date of Offering an aggregate purchase
price (determined on the basis of the Offering Price) equal to any whole
percentage of his or her Compensation up to a maximum of 5% (i.e., 1%, 2%, 3%,
4% or 5%). In the event such an option would involve the purchase of a
fractional Share, the number of Shares which may be purchased shall be rounded
down to the next whole number.
B. If Eligible Employees elect, in any one offering, to accept options to
an extent which would result (if options were granted on that basis) in the
granting of options for that offering to purchase more than the aggregate number
of Shares specified by the Board for that offering, the
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<PAGE>
Committee shall adjust such options on a pro rata basis so that the aggregate
number of Shares subject to purchase under that offering does not exceed such
specified number of Shares.
C. No Eligible Employee may be granted an option to purchase Shares which
would permit his or her total rights to purchase Shares of the Company's capital
stock under all employee stock purchase plans of the Company to accrue at a rate
which exceeds $25,000 of fair market value of such stock (determined as of the
date of grant of such option) for each calendar year during which any such
option granted to such individual is outstanding at any time.
6. METHOD OF PARTICIPATION
A. The Committee shall give notice to Eligible Employees of each offering
of options to purchase Shares pursuant to the Plan and the terms and conditions
for each offering. Such notice shall specify the number of Shares which may be
covered by the option to be offered to each Eligible Employee, the Offering
Price and such other information as the Committee may determine.
B. Each Eligible Employee who desires to accept all or any part of the
option to purchase Shares under an offering shall signify his or her election to
do so in the form and manner and by the deadline prescribed by the Committee,
provided that in no event may an election be made more than 27 months after the
Date of Offering. Each such Eligible Employee shall also authorize the Company,
in the form and manner prescribed by the Committee, to make payroll deductions
to cover the aggregate purchase price of those Shares in respect of which he or
she has elected to accept an option. Such election and authorization shall
continue in effect unless and until such Eligible Employee withdraws from the
Plan or terminates his or her employment with the Company, as hereinafter
provided.
C. The Company shall thereafter provide each Eligible Employee accepting
an option under each offering a notice indicating the number of Shares covered
by such option, the Offering Price, and any pro rata reduction in accordance
with Paragraph 5.B.
D. Each Eligible Employee who does not wish to accept any part of an
option to purchase Shares under an offering shall so signify in the form and
manner prescribed by the Committee. Such election not to accept any part of
such option shall be irrevocable for such offering.
7. PAYROLL DEDUCTIONS
A. The aggregate purchase price for those Shares as to which each
Eligible Employee has elected to accept the option offered to him or her shall
be deducted from his or her Compensation during the Purchase Period specified in
the offering through weekly, bi-weekly, semi-monthly or monthly payroll
deductions, as applicable, in substantially equal installments. Such payroll
deductions shall commence as soon as practicable after the applicable Date of
Offering, and shall continue until the last day of the Purchase Period.
B. In the event the payroll deductions of an Eligible Employee
participating in the Plan are temporarily discontinued because of leave of
absence, lay-off, temporary disability or other similar reason, then the number
of Shares subject to purchase under his or her option shall be automatically
reduced to that number of whole Shares which his or her aggregate payroll
deductions actually made within the Purchase Period is sufficient to purchase.
The balance of such payroll deductions, if any, shall be refunded to the
Eligible Employee in cash, without interest. Notwithstanding the foregoing,
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<PAGE>
however, such Eligible Employee may, prior to the conclusion of the Purchase
Period, make a payment to the Company in one lump sum of an amount equal to the
amount which was not subject to payroll deductions by reason of the temporary
discontinuance thereof and, in that event, such Eligible Employee shall then be
entitled to purchase the total number of Shares for which he or she has accepted
an option.
C. Any amounts to be paid or Shares to be delivered under the Plan shall
be reduced by any sums required to be withheld by the Company under federal,
state and local tax withholding laws.
8. RIGHT TO WITHDRAW
A. An Eligible Employee who has accepted an option to purchase Shares
may, at any time prior to his or her last regular payroll deduction thereunder,
direct the Company to make no further deductions from his or her Compensation
with respect to such option, or may cancel the entire option. Upon either of
such actions, all payroll deductions with respect to such option shall cease.
If the employee has directed that payroll deductions be discontinued, any sums
theretofore deducted in respect of the offering shall be retained by the Company
until the end of the Purchase Period, at which time there shall be issued to the
employee the number of whole Shares that can be purchased with the sum deducted
and any remaining balance of the sum shall be paid to him or her in cash,
without interest. If the employee has cancelled his or her option, the Company
shall refund in cash, without interest, all amounts credited to the account of
such employee with respect to the applicable offering.
B. Notification of an Eligible Employee's election to terminate
deductions, or to cancel an option, shall be made by the filing of an
appropriate notice to such effect with the Committee.
9. TERMINATION OF EMPLOYMENT
A. In the event the employment of an Eligible Employee who has accepted
an option to purchase Shares is terminated prior to his or her final payroll
deduction hereunder because of death, total and permanent disability, or
retirement at or after age 65 or earlier with the consent of the Company, he or
she, or his or her legal representative, as applicable, may either:
(1) cancel his or her option, in which event the Company shall refund
in cash, without interest, all amounts credited to his or her account under all
offerings in which he or she is participating under the Plan; or
(2) elect to receive at the conclusion of each applicable Purchase
Period that number of whole Shares which his or her payroll deductions actually
made are sufficient to purchase, plus the balance of such payroll deductions, if
any, in cash, without interest.
B. The election of an Eligible Employee, or his or her legal
representative, as applicable, pursuant to Paragraph 9.A above shall be made
within three months after the event causing the termination of employment and
within 27 months after the Date of Offering. Notification of the election shall
be filed with the Committee and, in the event no notification has been filed
within the prescribed period, the Company shall act in accordance with Paragraph
9.A(1) above.
C. In the event the employment of an Eligible Employee who has accepted
an option to purchase Shares is terminated for any reason other than those
specified in Paragraph 9.A, the
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<PAGE>
Company shall refund in cash, without interest, all amounts credited to his or
her account under all offerings in which he or she is participating under the
Plan.
10. EXERCISE OF OPTION AND PURCHASE OF SHARES
A. As of the last day of the Purchase Period of each offering, the
Committee shall determine the Alternative Offering Price. Unless an Eligible
Employee who has accepted an option under the offering has subsequently
withdrawn from the offering pursuant to Paragraph 8 hereof, his or her option
shall be deemed to have been exercised as of the last day of the applicable
Purchase Period and become on such date an irrevocable obligation to purchase
Shares in accordance with the provisions of the Plan. The number of whole
Shares so purchased by each such Eligible Employee shall be determined by
dividing the amount accumulated in his or her account by payroll deductions
during the Purchase Period by the lower of either the Offering Price or the
Alternative Offering Price, rounded down to a whole number of Shares. As soon
as practicable thereafter, certificates for the number of whole Shares,
determined as aforesaid, purchased by each Eligible Employee shall be issued to
him or her. Any balance remaining in the account of an Eligible Employee shall
be carried forward to the next Purchase Period.
B. In the event that, with respect to any offering hereunder, the
Alternative Offering Price is lower than the Offering Price to such an extent
that Eligible Employees participating in the offering become entitled to
purchase more Shares than were originally subscribed for by all Eligible
Employees accepting options under such offering, the Committee shall apportion
the aggregate Shares available for purchase under the offering among Eligible
Employees participating in the offering on a pro rata basis in accordance with
the number of Shares actually subscribed for by each such Eligible Employee, and
any amount remaining in the accounts of Eligible Employees shall be carried
forward to the next Purchase Period.
11. RIGHTS AS A STOCKHOLDER
An Eligible Employee who has accepted an option to purchase Shares under
the Plan shall not be entitled to any of the rights or privileges of a
stockholder of the Company, including the right to receive any dividends which
may be declared by the Company until such time as he or she has actually paid
the purchase price for such Shares and certificates have been issued to him or
her in accordance with Paragraph 10 hereof.
12. RIGHTS NOT TRANSFERABLE
An Eligible Employee's rights under the Plan are exercisable, during his or
her lifetime, only by him or her and may not be sold, pledged, assigned or
transferred in any manner other than by will or the laws of descent and
distribution. Any attempt to sell, pledge, assign or transfer such rights shall
be void and shall automatically cause the option held by the Eligible Employee
to be terminated. In such event, the Company shall refund in cash, without
interest, all amounts credited to the account of such Eligible Employee in all
offerings under the Plan.
13. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Committee, which is authorized to make
such uniform rules as may be necessary to carry out its provisions. The
Committee shall determine any
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<PAGE>
questions arising in the administration, interpretation and application of the
Plan, and all such determinations shall be conclusive and binding on all
parties.
B. If any option granted under the Plan shall lapse or terminate, the
number of Shares as to which such option shall have lapsed or terminated shall
become available for sale under the Plan.
14. ADJUSTMENT UPON CHANGES IN CAPITALIZATION
In the event of any change in the Shares of the Company by reason of stock
dividends, split-ups, corporate separations, recapitalizations, mergers,
consolidations, combinations, exchanges of Shares and the like, the aggregate
number and class of Shares available under the Plan and the number and class of
Shares under option but not yet issued under the Plan shall be adjusted
appropriately; provided, however, that no adjustment shall be made which would
result in a modification of the options granted hereunder and thereby disqualify
the Plan as an employee stock purchase plan under the provisions of Section 423
of the Code.
15. REGISTRATION OF CERTIFICATES
Stock certificates may be registered in the name of the Eligible Employee,
or, if he or she so designates, in his or her name jointly with his or her
spouse, with right of survivorship.
16. AMENDMENT OF PLAN
The Board may at any time amend the Plan in any respect except that,
without the approval of a majority of the Shares of the Company's capital stock
then issued and outstanding and entitled to vote, no amendment shall be made (i)
increasing the number of Shares to be reserved under the Plan (other than as
provided in Paragraph 14), (ii) decreasing the purchase price per Share (other
than as provided in Paragraph 14), or (iii) materially increasing benefits under
the Plan within the meaning of Rule 16b-3 under the Securities Exchange Act of
1934, as amended, to the extent that rule is applicable.
17. TERMINATION OF THE PLAN
Unless earlier terminated at the discretion of the Board, the Plan and all
rights of Eligible Employees in any offering hereunder shall terminate at the
earlier of (a) the conclusion of the last Purchase Period authorized herein or
(b) on the day that Eligible Employees participating in offerings under the Plan
become entitled to purchase a number of Shares equal to or greater than the
number of Shares remaining available for purchase. Upon termination of the
Plan, Shares shall be issued to Eligible Employees, and cash, if any, remaining
in the accounts of the Eligible Employees shall be refunded to them as if the
Plan were terminated at the end of a Purchase Period.
18. GOVERNMENTAL REGULATIONS AND LISTING
All rights granted or to be granted to Eligible Employees under the Plan
are expressly subject to all applicable laws and regulations and to the approval
of all governmental authorities required in connection with the authorization,
issuance, sale or transfer of the Shares reserved for the Plan including,
without limitation, (i) there being a current registration statement of the
Company covering the offer of Shares purchasable under options on the last day
of the Purchase Period applicable to such options, and if a registration
statement shall not then be effective the term of such options and
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<PAGE>
the Purchase Period shall be extended until the first business day after the
effective date of such registration statement, or post-effective amendment
thereto, or (ii) there being an exemption from such registration.
19. MISCELLANEOUS
A. The Plan shall not become effective unless and until it has been
approved, in the manner prescribed by law, by the stockholders of the Company.
B. The Plan shall not be deemed to constitute a contract of employment
between the Company and any Eligible Employee, nor shall it interfere with the
right of the Company to terminate any Eligible Employee and treat him or her
without regard to the effect which such treatment might have upon him or her
under the Plan.
C. No option shall be granted hereunder, nor shall the Plan be
interpreted in such a manner, which could cause the Plan or any options issued
hereunder to fail to qualify under Section 423 of the Code.
D. The Plan shall be construed and its provisions enforced and
administered in accordance with the laws of the State of Delaware.
20. EFFECTIVE DATE
The effective date of the Plan shall be the closing date of the initial
public offering of the Shares by the Company.
* * *
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<PAGE>
Exhibit 5.1
September 4, 1996
Steinway Musical Instruments, Inc.
600 Industrial Parkway
Elkhart, Indiana 46516
Re: 1996 STOCK PLAN AND 1996 EMPLOYEE STOCK PURCHASE PLAN
Ladies and Gentlemen:
We have acted as counsel to Steinway Musical Instruments, Inc. (the
"Company") in connection with the registration by the Company under the
Securities Act of 1933, as amended (the "Securities Act"), of 778,250 shares of
Ordinary Common Stock, par value $.001 per share (the "Ordinary Common Stock"),
of the Company issuable under the Steinway Musical Instruments, Inc. 1996 Stock
Plan (the "Stock Plan") and 500,000 shares of Ordinary Common Stock issuable
under the Steinway Musical Instruments, Inc. 1996 Employee Stock Purchase Plan
(the "Purchase Plan"), under a Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission.
We have examined originals, or copies certified to our satisfaction,
of all such corporate records of the Company, agreements and other instruments,
certificates of public officials and officers and representatives of the Company
and such other documents as we have deemed necessary as a basis for the opinions
hereafter expressed.
Based on the foregoing and having regard to legal considerations that
we deem relevant, we are of the opinion that, when said shares of Ordinary
Common Stock have been registered under the Securities Act and when the Company
has received the consideration to be received for said shares in accordance with
the provisions of the Stock Plan and the Purchase Plan and said shares of
Ordinary Common Stock have been issued by the Company as provided under the
Stock Plan and the Purchase Plan, said shares of Ordinary Common Stock will be
duly authorized, validly issued and outstanding, fully paid and nonassessable,
with no personal liability attaching to the ownership thereof.
<PAGE>
Steinway Musical Instruments, Inc.
September 4, 1996
Page 2
We hereby consent to the inclusion of this opinion in the Registration
Statement.
Very truly yours,
/s/ Milbank, Tweed, Hadley & McCloy
-----------------------------------
EHS/PPW
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Steinway Musical Instruments, Inc. (formerly Selmer Industries, Inc.) on
Form S-8 of our reports dated March 8, 1996 and March 8, 1996 (July 3, 1996
as to the fifth paragraph of Note 9) appearing in the Annual Report on Form
10-K of Steinway Musical Instruments, Inc. for the year ended December 31,
1995 and in Registration Statement No. 333-3667 on Form S-1, respectively.
DELOITTE & TOUCHE LLP
Chicago, Illinois
September 5, 1996
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Steinway Musical Instruments, Inc. (formerly Selmer Industries, Inc.) on
Form S-8 of our report dated September 9, 1994 appearing in Registration
Statement No. 333-3667 on Form S-1.
DELOITTE & TOUCHE LLP
Boston, Massachusetts
September 5, 1996
