As filed with the Securities and Exchange Commission on May 3, 2004
Registration No. 333-______
------------------------------
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
THE EASTERN COMPANY
(Exact name of registrant as specified in its charter)
Connecticut 06-0330020
----------- ----------
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
112 Bridge Street, Naugatuck, Connecticut 06770
----------------------------------------- -----
(Address of principal executive offices) (Zip code)
THE EASTERN COMPANY 1997 DIRECTORS STOCK OPTION PLAN
----------------------------------------------------
(Full title of the plan)
John V. Galiette, Esq.
Reid and Riege, P.C.
One Financial Plaza
Hartford, Connecticut 06103-3185
(Name and address of agent for service)
(860) 240-1009
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed maximum
securities Amount maximum offering aggregate Amount of
to be to be price offering registration
registered registered (1) per share (1)(2) price (1) fee (2)
---------- -------------- ---------------- --------- -------
Common stock 100,000 $15.25 for 25,000 $1,583,500 $200.63
$16.03 for 75,000
(1) These amounts have been estimated solely for the purpose of calculating the
registration fee. Pursuant to Rule 457(c) and (h) under the Securities Act of
1933, as amended, these amounts have been computed on the basis of the exercise
price of options, where known, and where such exercise price is not known, on
the basis of the average of the high and low prices of the Registrant's Common
Stock as traded on the American Stock Exchange.
(2) The registration fee equals $126.70 per million of the sum of: (a) $381,250,
which is the aggregate exercise price of 25,000 options granted at an exercise
price of $15.25 per share; plus (b) $1,202,250, which is $16.03, the average of
the high and low prices of the Registrant's Common Stock on April 28, 2004 (a
date within five business days prior to the date of filing of the Registration
Statement), multiplied by 75,000, a good faith estimate of the aggregate number
of shares of Common Stock of the Registrant to be issued under options to be
granted pursuant to the Plan.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by The Eastern Company, a
Connecticut corporation (the "Registrant"), with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended January 3, 2004.
(b) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended April 3, 2004.
(c) The description of the Registrant's Common Stock contained
in the Registrant's registration statement filed pursuant to Section 12(b) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any
amendments updating such description filed with the Commission.
(d) The description of the Registrant's Common Stock contained
on pages 17 and 18 of the Registrant's Form S-8, Registration No. 33-29452,
relating to The Eastern Company Incentive Stock Option Plan and The Eastern
Company 1989 Executive Stock Incentive Plan filed pursuant to the Securities Act
of 1933, as amended (the "Securities Act"), and any amendments updating such
description filed with the Commission.
(e) The description of the Registrant's Rights Plan contained
in the Registrant's Form 8-K filed on August 6, 1998 pursuant to Section 12 of
the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the 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 the
documents incorporated or deemed 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 incorporated or 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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
The consolidated financial statements of The Eastern Company
incorporated by reference in this Registration Statement have been audited by
Ernst & Young LLP, independent auditors, to the extent indicated in their report
thereon which is also incorporated by reference herein. Such financial
statements have been incorporated herein by reference in reliance on such report
given on the authority of such firm as experts in accounting and auditing.
The validity of the issuance of the shares of common stock offered
hereby will be passed upon for the Registrant by Reid and Riege, P.C., Hartford,
Connecticut.
Item 6. Indemnification of Directors and Officers.
Section 33-770 et seq. of the Connecticut General Statutes provides for
permissive indemnification, mandatory indemnification and court-ordered
indemnification of directors.
(A) A corporation may indemnify a director against liability incurred
in a pending, threatened or completed action, suit or proceeding if: (1) he
conducted himself in good faith; and (2) he reasonably believed (a) in the case
of conduct in his official capacity with the corporation, that his conduct was
in its best interests, and (b) in all other cases, that his conduct was at least
not opposed to its best interests; and (3) in the case of any criminal
proceeding, that he had no reasonable cause to believe that his conduct was
unlawful. A corporation may also indemnify a director if he engaged in conduct
for which indemnification is permitted or required under the corporation's
certificate of incorporation.
A corporation may not indemnify a director unless a determination has
been made that indemnification of the director is permissible because the
director has met the applicable standard of conduct. This determination must be
made either: (1) if there are two or more disinterested directors, by a majority
vote of the disinterested members of the board of directors; or (2) by a
majority vote of a committee which is composed of two or more disinterested
directors and which is designated by vote of a majority of the disinterested
directors; or (3) by special legal counsel selected by the disinterested
directors or a committee of disinterested directors (or by the full board if
there are fewer than two disinterested directors); or (4) by vote of the
shareholders (although shares owned by directors who are not disinterested
directors cannot vote).
Notwithstanding the above, however, a corporation may not indemnify a
director: (1) in connection with a proceeding by or in the right of the
corporation (unless the indemnification is for reasonable expenses incurred and
the director met the relevant standard of conduct noted above); or (2) in
connection with any proceeding charging improper financial benefit to him,
whether or not involving action in his official capacity, in which he was
adjudged liable on the basis that a financial benefit was improperly received by
him.
A corporation may advance reasonable expenses incurred by a director in
connection with a proceeding if: (1) the director furnishes the corporation with
a written affirmation of his good faith belief that he has met the standard of
conduct for receiving indemnification, or the proceeding involves conduct for
which liability is limited under the corporation's certificate of incorporation;
and (2) the director furnishes the corporation with a written undertaking to
repay any advances if it is ultimately determined that he did not meet the
standard of conduct. Authorizations for the repayment of expenses must be made
either: (1) if there are two or more disinterested directors, by a majority vote
of the disinterested members of the board of directors; or (2) by a majority
vote of a committee which is composed of two or more disinterested directors and
which is designated by vote of a majority of the disinterested directors; or (3)
by the full board if there are fewer than two disinterested directors; or (4) by
vote of the shareholders (although shares owned by directors who are not
disinterested directors cannot vote).
(B) Unless limited by its certificate of incorporation, a corporation
shall indemnify a director who was wholly successful, on the merits or
otherwise, in the defense of any proceeding against reasonable expenses incurred
by him in connection with the proceeding.
(C) Unless a corporation's certificate of incorporation provide
otherwise, a court may order a corporation to indemnify a director if the
director applies to the court for indemnification and the court determines that:
(1) the director is entitled to mandatory indemnification; (2) the director is
entitled to indemnification pursuant to a provision of the corporation's
certificate of incorporation; or (3) the director is fairly and reasonably
entitled to indemnification in view of all of the relevant circumstances,
whether or not he met the standard of conduct for permissive indemnification or
was adjudged liable to the corporation. However, if he was adjudged liable to
the corporation, his indemnification will be limited to only the reasonable
expenses incurred.
The rules which apply above relating to the indemnification of
directors also apply to officers who are not directors of the corporation. In
addition, a corporation may indemnify and advance expenses to an officer,
employee or agent who is not a director to the extent, consistent with public
policy, that is permitted by its certificate of incorporation, bylaws, general
or specific action of its board of directors, or contract.
Article Tenth of the Registrant's certificate of incorporation and
Section 33-636(b)(4) of the Connecticut General Statutes limit the personal
liability of the Registrant's directors to the Registrant or its shareholders
for monetary damages for any failure on the part of the directors to exercise
the requisite degree of care in fulfilling their duties and responsibilities in
their capacity as directors. However, the protection does not extend to acts or
omissions of the directors that involve a knowing and culpable violation of law,
enable the director or an associate to receive an improper personal economic
gain, show a lack of good faith and a conscious disregard for the duty of the
director of the corporation under circumstances in which the director was aware
that his conduct or omission created an unjustifiable risk of serious injury to
the corporation, constitute a sustained and unexcused pattern of inattention
amounting to an abdication of the director's duty to the corporation, or involve
unlawful distributions to the director.
The Registrant's by-laws also require the indemnification of the
Registrant's directors and officers. Article IX of the by-laws provides that
each director and officer of the Registrant will be indemnified against losses
incurred by him to the fullest extent permitted by Connecticut law. This right
of indemnification is in addition to any other such rights to which the director
or officer may, as a matter of law, be entitled.
The Registrant has also obtained directors' and officers' liability
insurance, the effect of which is to indemnify the directors and officers of the
Registrant against certain damages and expenses because of certain claims made
against them which are caused by their negligent act, error or omission.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
--------
The following exhibits are filed as part of this Registration
Statement:
4(a) The Eastern Company 1997 Directors Stock Option Plan, as
amended by Amendment No. 1 dated April 28, 1999 and
Amendment No. 2 dated December 15, 1999.
4(b) The Registrant's restated certificate of incorporation dated
August 14, 1991 is incorporated by reference to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 28, 1991 and the Registrant's Form 8-K filed on
February 13, 1991. The Registrant's amended and restated
By-laws dated July 29, 1996, are incorporated by reference to
the Registrant's Form 8-K filed on July 29, 1996.
4(c) The Rights Agreement entered into between the Registrant and
BankBoston N.A. (now Fleet National Bank) dated as of August
6, 1998 and the letter to all shareholders of the Registrant
dated July 22, 1998, together with the press release dated
July 22, 1998 describing the Registrant's redemption of
shareholders' Purchase Rights dated September 16, 1991 and the
issuance of a new Purchase Rights dividend distribution, are
incorporated by reference to the Registrant's Form 8-K filed
on August 6, 1998.
5 Opinion of Reid and Riege, P.C. as to the legality of the
securities being registered.
23(a) Consent of Reid and Riege, P.C. (Reference is made to the
Opinion of Reid and Riege, P.C. filed as Exhibit 5.)
23(b) Consent of Independent Auditors.
24 Power of Attorney (included in signature page to this
Registration Statement).
99(1) Resale S-3-type prospectus filed with this Registration
Statement on Form S-8 in accordance with General Instruction C
of Form S-8.
99(2) The Registrant's Annual Report on Form 10-K for the fiscal
year ended January 3, 2004 is incorporated herein by
reference.
99(3) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended April 3, 2004 is incorporated herein
by reference.
99(4) Notice of the 2004 Annual Meeting of Shareholders and Proxy
Statement of the Registrant dated March 22, 2004 are
incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof)which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (ii) 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 Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this 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 the 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 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 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.
(e) The undersigned Registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(h) 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 Commission, such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
The Registrant. 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 Town of Naugatuck, State of Connecticut, on the 3rd day
of May, 2004.
THE EASTERN COMPANY
By /s/ Leonard F. Leganza
----------------------
Leonard F. Leganza
(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 and on the dates indicated. By so signing, each of the undersigned,
in his or her capacity as a director or officer, or both, as the case may be, of
the Registrant does hereby appoint Leonard F. Leganza and David C. Robinson, and
each of them severally, his or her true and lawful attorneys or attorney to
execute in his or her name, place and stead, in his or her capacity as a
director or officer or both, as the case may be, of the Registrant any and all
amendments to said Registration Statement and post-effective amendments thereto
and all instruments necessary or incidental in connection therewith, and to file
the same with the Securities and Exchange Commission. Each of said attorneys
shall have full power and authority to do and perform in the name and on behalf
of each of the undersigned, in any and all capacities, every act whatsoever
requisite or necessary to be done in the premises as fully, and to all intents
and purposes, as each of the undersigned might or could do in person, hereby
ratifying and approving the acts of said attorneys and each of them.
Signature Title Date
/s/ Leonard F. Leganza President, Chief Executive May 3, 2004
------------------------- Officer and Director
Leonard F. Leganza (Principal Executive Officer)
Director May 3, 2004
-------------------------
John W. Everets
/s/ Charles W. Henry Director May 3, 2004
-------------------------
Charles W. Henry
/s/ David C. Robinson Director May 3, 2004
------------------------
David C. Robinson
/s/ Donald S. Tuttle, III Director May 3, 2004
--------------------------
Donald S. Tuttle, III
/s/ John L. Sullivan III Vice President, Secretary May 3, 2004
-------------------------- and Treasurer (Principal
John L. Sullivan III Financial Officer)
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the person who administers the Plan has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
Town of Naugatuck, State of Connecticut on the 3rd day of May, 2004.
THE EASTERN COMPANY 1997 DIRECTORS STOCK OPTION PLAN
By THE EASTERN COMPANY
By /s/ Leonard F. Leganza
-----------------------------
Leonard F. Leganza
Its President and Chief
Executive Officer