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As filed with the Securities and Exchange Commission on September 26, 1997.
Registration No. 333-
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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MOUNTBATTEN, INC.
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(Exact name of registrant as specified in its charter)
Pennsylvania 23-2633708
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Thirty Three Rock Hill Road
Bala Cynwyd, Pennsylvania 19004
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(Address of Principal Executive Offices) (Zip Code)
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MOUNTBATTEN, INC.
1995 EQUITY INCENTIVE PLAN FOR KEY EMPLOYEES
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(Full title of the plan)
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Kenneth L. Brier, President
Mountbatten, Inc.
Thirty Three Rock Hill Road
Bala Cynwyd, Pennsylvania 19004
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(Name and address of agent for service)
(610) 664-2259
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(Telephone number, including area code,
of agent for service)
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Copy to:
John W. Kauffman, Esquire
Duane, Morris & Heckscher LLP
One Liberty Place
Philadelphia, PA 19103-7396
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered(1) price per share(2) offering price(2) registration fee
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<S> <C> <C> <C> <C>
Common Stock, 250,000 shares $10.43158 $2,607,895 $791
par value $.001
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</TABLE>
(1) In addition, this registration statement also registers such additional
shares as may be required to be issued under the Mountbatten, Inc. 1995
Equity Incentive Plan for Key Employees, as amended, (the "Plan") in the
event of a stock divided, reverse stock split, split-up, reclassification
or other similar event.
(2) Estimated solely for the purpose of calculating the registration fee based
on (i) the exercise price of $8.50 with respect to the outstanding options
to purchase 29,500 shares of the shares of Common Stock of the Company
registered hereunder and (ii) the average of the high and low sales prices
of the Common Stock of the Company on the Nasdaq Stock Market on September
23, 1997, or $10.69 per share with respect to 220,500 shares of Common
Stock of the Company available for issue under the Plan not subject to
currently outstanding options.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
This Registration Statement on Form S-8 relates to shares of the Common
Stock, par value $.001 per share (the "Common Stock), of Mountbatten, Inc. (the
"Company") that may be issued under the Company's 1995 Equity Incentive Plan for
Key Employees, as amended (the "Plan"). Pursuant to General Instruction E of
Form S-8, the Company hereby incorporates by reference the contents of the
Company's Registration Statement on Form S-8 (No. 333-23055) as previously filed
with the Securities and Exchange Commission (the "Commission") on March 10,
1997, covering 250,000 shares of Common Stock that may be issued pursuant to the
Plan. This Registration Statement is being filed to register an additional
250,000 shares of the Company's Common Stock that may be issued under the Plan.
The Company also incorporates by reference the following material:
(a) The Annual Report on Form 10-KSB of the Company for the year ended
December 31, 1996 as filed by the Company with the Commission on March 31, 1997.
(b) The Quarterly Report on Form 10-QSB of the Company for the quarter
ended March 31, 1997 as filed by the Company with the Commission on May 14,
1997.
(c) The Quarterly Report on Form 10-QSB of the Company for the quarter
ended June 30, 1997 as filed by the Company with the Commission on August 14,
1997.
(d) The description of the Company's Common Stock set forth in the
Company's Registration Statement No. 33-78336 on Form SB-2, declared effective
with the Commission under the Securities Act of 1933, as amended, (the "Act") on
September 1, 1994, under the caption "Description of Securities," which is
incorporated by reference in response to Item 1 of the Company's Registration
Statement No. 0-24638 on Form 8-A declared effective with the Commission on
September 1, 1994 pursuant to Section 12(g) of the Securities Exchange Act of
1934, as amended, (the "Exchange Act") and the Company's proxy statement for the
Company's 1997 Annual Meeting of Stockholders filed with the Commission on April
16, 1997.
All reports or other documents filed pursuant to Sections 13, 14 and
15(d) of the Exchange Act subsequent to the date of this Registration Statement,
in each case filed by the Company prior to the filing of a post-effective
amendment that indicates that all securities offered have been sold or that
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 reports and documents. Any statement contained
in a document incorporated or deemed to be incorporated herein by reference
shall be deemed to be modified or superseded for the 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
herein by reference,
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modifies or supersedes such statement. Any 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.
No answer to this item is required because the class of securities to
be offered is registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
The consolidated financial statements and schedules of the Company as
of December 31, 1996 and for each of the years in the two-year period ended
December 31, 1996 have been incorporated by reference herein and in this
Registration Statement in reliance upon the report of Price Waterhouse LLP,
independent accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
The validity of the issuance of the shares of Common Stock registered
hereby will be passed upon for the Company by Duane, Morris & Heckscher LLP,
Philadelphia, Pennsylvania.
Item 6. Indemnification of Directors and Officers.
As permitted by the provisions for indemnification of directors and
officers in the Pennsylvania Business Corporation Law (the "BCL"), which applies
to the Company, the Company's Bylaws provide for indemnification of directors
and officers for all expense, liability and loss (including without limitation
attorney's fees, judgments, fines, taxes, penalties and amounts paid in
settlement) reasonably incurred or suffered by such person in any threatened,
pending or completed action, suit or proceeding (including without limitation an
action, suit or proceeding by or in the right of the Company), whether civil,
criminal, administrative, investigative, or through arbitration, unless the act
or failure to act giving rise to the claim for indemnification is determined by
a court to have constituted willful misconduct or recklessness. The right to
indemnification provided in the Company's Bylaws includes the right to have the
expenses incurred by such person in defending any proceeding paid by the Company
in advance of the final disposition of the proceeding to the fullest extent
permitted by Pennsylvania law; provided that, if Pennsylvania law continues so
to require, the payment of such expenses incurred by such person in advance of
the final disposition of a proceeding may be made only upon delivery to the
Company of an undertaking, by or on behalf of such person, to repay all amounts
so advanced without interest if it is ultimately determined that such person is
not entitled to be indemnified under the Company's Bylaws or otherwise.
Indemnification under such provisions continues as to a person who has ceased to
be a director or officer of the Company and inures to the benefit of his or her
heirs, executors and administrators. The Bylaws for the Company also avail
directors of the Pennsylvania law limiting directors' liability for monetary
damages for any action taken or any failure to take any action to those cases
where they have breached their fiduciary duty under the BCL and such breach
constitutes self-dealing, willful misconduct or recklessness, provided, however,
that this limitation does not apply to the responsibilities or liabilities of a
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director pursuant to any criminal statute, or to the liabilities of a director
for payment of taxes pursuant to local, Pennsylvania or federal law.
Item 7. Exemption from Registration Claimed.
No answer to this item is required because no restricted securities are
to be reoffered or resold pursuant to this Registration Statement.
Item 8. Exhibits.
4.1 Mountbatten, Inc. Equity Incentive Plan for Key Employees, as
amended. (Incorpo rated by reference to the Company's Form 10-QSB
Quarterly Report for the quarter ended June 30, 1997, filed with
the Commission on August 14, 1997.)
5.1 Opinion of Duane, Morris & Heckscher LLP. (Filed herewith.)
23.1 Consent of Duane, Morris & Heckscher LLP. (Included in their
opinion filed as Exhibit 5).
23.2 Consent of Price Waterhouse LLP. (Filed herewith.)
24.1 Power of Attorney. (See page II-5 of this Registration
Statement).
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
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. 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 and of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
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(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i)and (a)(1)(ii) herein 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 or furnished to the
Commission by the undersigned Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the registration
statement.
(b) that for the purpose of determining any liability under the 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 offer
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 undersigned registrant hereby further undertakes that, for purposes
of determining any liability under the Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 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.
The undersigned registrant hereby further undertakes that, insofar as
indemnification for liabilities arising under the Act may be permitted to
directors, officers and controlling persons of the registrant, the registrant
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 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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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 Bala Cynwyd, Pennsylvania on September 25, 1997.
MOUNTBATTEN, INC.
By:/s/ Kenneth L. Brier
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Kenneth L. Brier, President
Know all men by these presents, that each person whose signature
appears below constitutes and appoints Kenneth L. Brier and Joel D. Cooperman,
and each or either of them, as such person's true and lawful attorneys-in-fact
and agents, with full power of substitution, for such person, and in such
person's name, place and stead, in any and all capacities to sign any or all
amendments or post-effective amend ments 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 and necessary to be done in and about the
premises, as fully to all intents and purposes as such person might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
Signature Title Date
/s/ Kenneth L. Brier President, Chief Executive September 25, 1997
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Kenneth L. Brier Officer and a Director
(principal executive officer)
/s/ Ted A. Drauschak Executive Vice President, September 25, 1997
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Ted A. Drauschak Secretary and a Director
/s/ Joel D. Cooperman Vice President, Finance, September 25, 1997
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Joel D. Cooperman Treasurer and Chief
Financial Officer (principal
financial and accounting officer)
/s/ J. Michael Adams Director September 25, 1997
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J. Michael Adams
/s/ Thomas P. Garry Director September 25, 1997
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Thomas P. Garry
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EXHIBIT INDEX
(Pursuant to Item 601 of Regulation S-K)
Exhibit No. Exhibit
4.1 Mountbatten, Inc. Equity Incentive Plan for Key Employees, as
amended. (Incorporated by reference to Exhibit 10 to the
Company's For 10-QSB Quarterly Report for the quarter ended June
30, 1997, filed with the Commission on August 14, 1997.
5.1 Opinion of Duane, Morris & Heckscher LLP. (Filed herewith.)
23.1 Consent of Duane, Morris & Heckscher LLP. (Included in their
opinion filed as Exhibit 5).
23.2 Consent of Price Waterhouse LLP. (Filed herewith.)
24.1 Power of Attorney. (See page II-5 of this Registration
Statement).
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EXHIBIT 5.1
September 25, 1997
The Board of Directors of
Mountbatten, Inc.
Thirty Three Rock Hill Road
Bala Cynwyd, PA 19004
Gentlemen:
We have acted as counsel to Mountbatten, Inc. (the "Company") in
connection with the preparation and filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, of a registration
statement on Form S-8 (the "Registration Statement") relating to the offer and
sale by the Company of up to 250,000 shares (the "Shares") of Common Stock,
$.001 par value, of the Company, pursuant to the Company's 1995 Equity Incentive
Plan for Key Employees, as amended (the "Plan").
As counsel to the Company, we have supervised all corporate proceedings
in connection with the preparation and filing of the Registration Statement. We
have also examined the Company's Articles of Incorporation and By-laws, as
amended to date, the corporate minutes and other proceedings and the records
relating to the authorization, sale and issuance of the Shares, and such other
documents and matters of law as we have deemed necessary or appropriate in order
to render this opinion.
Based upon the foregoing, it is our opinion that each of the Shares,
when issued in accordance with the terms and conditions of the Plan, will be
duly authorized, legally and validly issued and outstanding, fully paid and
nonassessable.
We hereby consent to the use of this opinion in the Registration
Statement.
Sincerely,
/s/ DUANE, MORRIS & HECKSCHER LLP
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Exhibit 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement for the Mountbatten, Inc. 1995
Equity Incentive Plan for Key Employees, as amended, on Form S-8 of our report
dated February 21, 1997 appearing in Mountbatten, Inc.'s Annual Report on Form
10-KSB for the year ended December 31, 1996. We also consent to the reference to
us under the heading "Interests of Named Experts and Counsel" in such
Prospectus.
/s/ PRICE WATERHOUSE LLP
Boston, Massachusetts
September 25, 1997
