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As filed with the Securities and Exchange Commission on September 18, 1996
Registration Number
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
THE BOSTON BEER COMPANY, INC.
(Exact name of issuer as specified in its charter)
Massachusetts 04-3284048
(State of Incorporation) (IRS Employer Identification Number)
75 Arlington Street , Boston, Massachusetts 02116
(Address of Principal Executive Offices)
(617) 368-5000
(Registrant's telephone number, including area code)
THE BOSTON BEER COMPANY, INC.
1996 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the Plan)
Frederick H. Grein, Jr., Esquire
Hutchins, Wheeler & Dittmar
A Professional Corporation
l01 Federal Street
Boston, Massachusetts 02110
(617) 951-6600
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(l) Per Share Price Fee(2)
Class A Common Stock 100,000 $19.5625 $1,956,1250 $674.57
(1) Also registered hereunder are such additional number of shares of
Common Stock, presently indeterminable, as may be necessary to satisfy
the antidilution provisions of the Plan to which this Registration
Statement relates.
(2) The registration fee has been calculated with respect to 100,000 of the
shares registered on the basis of the average of the high and low
prices on the New York Stock Exchange on September 17, 1996.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company hereby incorporates by reference the documents listed in
(a) through (c) below. In addition, all documents subsequently filed by the
Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (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 thereof from the date
of filing of such documents.
(a) The Company's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 or the latest Prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, which contains either
directly or by incorporation by reference, audited financial statements for the
Company's latest fiscal year for which such statements have been filed.
(b) All of the reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by the
annual report or the Prospectus referred to in (a) above.
(c) The description of the Company's Class A Common Stock, $.01 par
value per share which is contained in the Registration Statement filed by the
Company under the Securities Exchange Act of 1934, including any amendment or
report filed for the purpose of updating such description.
Item 4. Description of Securities
Inapplicable.
Item 5. Interests of Named Experts and Counsel
The validity of the authorization and issuance of the Common Stock
offered hereby will be passed upon for the Company by Hutchins, Wheeler &
Dittmar, A Professional Corporation, Boston, Massachusetts. As of December 31,
1995, a total of 15,353 shares of Common Stock were beneficially owned by
certain stockholders of Hutchins, Wheeler & Dittmar, A Professional Corporation.
Item 6. Indemnification of Directors and Officers
Section 67 of Chapter 156B of the General Laws of the Commonwealth of
Massachusetts provides as follows:
"Section 67. Indemnification of directors, officers, employees and
other agents of a corporation, and persons who serve at its request as
directors, officers, employees or other agents of another organization, or who
serve at its request in any capacity with respect to any employee benefit plan,
may be provided by it to whatever extent shall be specified in or authorized by
(i) the articles of organization or (ii) a by-law adopted by the stockholders or
(iii) a vote adopted by the holders of a majority of the shares of stock
entitled to vote on the election of directors. Except as the articles of
organization or by-laws otherwise require, indemnification of any persons
referred to in the preceding sentence who are not directors of the corporation
may be provided by it to the extent authorized by the directors. Such
indemnification may include payment by the corporation of expenses incurred in
defending a civil or criminal action or proceeding in advance of the final
disposition of such action or proceeding, upon receipt of an undertaking by the
person indemnified to repay such payment if he shall be adjudicated to be not
entitled to indemnification under this section which undertaking may be accepted
without reference to the financial ability of such person to make repayment. Any
such indemnification may be provided although the person to be indemnified is no
longer an officer, director, employee or agent of the corporation or of such
other organization or no longer serves with respect to any such employee benefit
plan.
No indemnification shall be provided for any person with respect to any
matter as to which he shall have been adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that his action was in the best
interest of the corporation or to the extent that such matter relates to service
with respect to an employee benefit plan, in the best interests of the
participants or beneficiaries of such employee benefit plan.
The absence of any express provision for indemnification shall not
limit any right of indemnification existing independently of this section.
A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or other agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or other agent of another organization or with
respect to any employee benefit plan, against any liability incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability."
Article 7 of the By-laws of the Company provides as follows:
ARTICLE 7
Indemnification of Directors and Others
Section 7.1 Definitions
For purposes of this Article 7:
(a) "Director/officer" means any person who is serving or has served as
a Director, officer or employee of the Corporation appointed or elected by the
Board of Directors or the stockholders of the Corporation, or any Director,
officer or employee of the Corporation who is serving or has served at the
request of the Corporation as a Director, officer, trustee, principal, partner,
member of a committee, employee or other agent of any other organization, or in
any capacity with respect to any employee benefit plan of the Corporation or any
of its subsidiaries.
(b) "Proceeding" means any actual or threatened action, suit or
proceeding, whether civil, criminal, administrative or investigative, including,
without limitation, an action by or in the right of the Corporation to procure a
judgment in its favor, brought or threatened in or before any court, tribunal,
administrative or legislative body or agency, and any claim which could be the
subject of a Proceeding.
(c) "Expense" means any fine, penalty or taxes, any liability fixed by
a judgment, order, decree or award in a Proceeding, any amount reasonably paid
in settlement of a Proceeding and any professional fees and other disbursements
reasonably incurred in connection with a Proceeding. The term "Expense" shall
include any fines, liabilities, taxes or penalties imposed on a Director/officer
with respect to any employee benefit plan of the Corporation or any of its
subsidiaries.
Section 7.2 Right to Indemnification
Except as limited by law or as provided in Sections 7.3 and 7.4 of this
Article 7, each Director/officer (and his heirs and personal representatives)
shall be indemnified by the Corporation against any Expense incurred by him in
connection with each Proceeding in which he is involved as a result of his
serving or having served as a Director/officer to the fullest extent permitted
by law.
Section 7.3 Indemnification not Available
No indemnification shall be provided to a Director/officer with respect
to a Proceeding as to which it shall have been adjudicated that he did not act
in good faith in the reasonable belief that his action was in the best interests
of the Corporation, or, to the extent that such Proceeding
relates to service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan.
Expenses incurred in connection with a Proceeding may be paid by the
Corporation in advance of the final disposition of the Proceeding upon receipt
of an undertaking by the Director/ Officer to repay such amount if it is
ultimately determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article 7.
Section 7.4 Compromise or Settlement
In the event that a Proceeding is compromised or settled so as to
impose any liability or obligation on a Director/officer or upon the
Corporation, no indemnification shall be provided as to said Director/officer
with respect to such Proceeding if it is determined (i) by a majority of the
disinterested Directors then in office or (ii) in the absence of any
disinterested Directors or at the request of a majority of the disinterested
Directors, by the holders of a majority of the outstanding stock entitled to
vote for Directors, voting as a single class, exclusive of any stock owned by
any interested Director/officer, that with respect to the matter involved in
such Proceeding said Director/officer did not act in good faith in the
reasonable belief that his action was in the best interests of the Corporation
or, to the extent that such Proceeding relates to service with respect to an
employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan. In lieu of submitting the question
to a vote of disinterested Directors or stockholders, as provided above, the
Corporation may deny indemnification to said Director/officer with respect to
such Proceeding, if there has been obtained at the request of a majority of the
Directors then in office, an opinion in writing of independent legal counsel,
other than counsel to the Corporation, to the effect that said Director/officer
did not act in good faith in the reasonable belief that his action was in the
best interests of the Corporation or, to the extent that such Proceeding relates
to service with respect to an employee benefit plan, in the best interests of
the participants or beneficiaries of such employee benefit plan.
Section 7.5 Advances
The Corporation shall pay sums on account of indemnification in advance
of a final disposition of a Proceeding upon receipt of an undertaking by the
Director/officer to repay such sums if it is subsequently established that he is
not entitled to indemnification pursuant to Sections 7.3 and 7.4 hereof, which
undertaking may be accepted without reference to the financial ability of such
person to make repayment.
Section 7.6 Not Exclusive
Nothing in this Article 7 shall limit any lawful rights to
indemnification, reimbursement, or advancement of expenses existing
independently of this Article 7.
Section 7.7 Insurance
The provisions of this Article 7 shall not limit the power of the Board
of Directors to authorize the purchase and maintenance of insurance on behalf of
any Director/officer against any liability incurred by him in any such capacity,
or arising out of his status as such, whether or not the Corporation would have
the power to indemnify him against such liability under this Article 7.
Article VI of the Articles of Organization of the Company provides in
relevant part as follows:
"No Director of the corporation shall be liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a Director
notwithstanding any statutory provision or other law imposing such liability,
except for liability of a Director (i) for any breach of the Director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 61 or 62 of Chapter 156B of the Massachusetts General
Laws, or (iv) for any transaction from which the Director derived an improper
personal benefit. No amendment or repeal of this paragraph shall apply to or
have any effect on the liability or alleged liability of any Director of the
corporation for or with respect to any acts or omissions of such Director
occurring prior to such amendment or repeal."
The directors and officers of the Company are insured under an
insurance policy which insures them against claims made during the policy
period, and liability arising therefrom, for certain wrongful acts in their
capacity as officers and/or directors.
Item 7. Exemption from Registration Claimed
Inapplicable
Item 8. Exhibits
Number Description
4.1 The Boston Beer Company, Inc. 1996 Stock Option Plan for Non-
Employee Directors.
5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional
Corporation, as to legality of shares being registered and
consent of Hutchins, Wheeler & Dittmar, A Professional
Corporation.
23.1 Consents of Independent Accountants - included in
Registration Statement under heading "Consent of Independent
Accountants."
Item 9. Undertakings
The undersigned Registrant hereby undertakes the following:
(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;
(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;
(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) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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 of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities
Exchange Act of 1934) that is incorporated by reference in 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) The undersigned registrant hereby undertakes, that, insofar as
indemnification for liabilities arising under The Securities Act of 1933 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 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.
[Remainder of Page Intentionally Left Blank]
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 Boston, Massachusetts on September 13, 1996.
The Boston Beer Company, Inc.
/s/ C. James Koch
C. James Koch
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ C. James Koch
- ------------------------------ President, Chief Executive Sept. 13, 1996
C. James Koch Officer, Clerk and Director
(principal executive
officer)
/s/ Alfred W. Rossow, Jr.
- ------------------------------ Chief Operating Officer, Sept. 13, 1996
Alfred W. Rossow, Jr. Treasurer, Chief Financial
Officer (principal financial
and accounting officer) and
Director
/s/ Rhonda L. Kallman Director Sept. 13, 1996
- ------------------------------
Rhonda L. Kallman
/s/ Charles Joseph Koch Director Sept. 13, 1996
- ------------------------------
Charles Joseph Koch
/s/ Pearson C. Cummin, III Director Sept. 13, 1996
- ------------------------------
Pearson C. Cummin, III
/s/ James C. Kautz Director Sept. 13, 1996
- ------------------------------
James C. Kautz
/s/ John B. Wing Director Sept. 13, 1996
- ------------------------------
John B. Wing
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated February 20, 1996,
except for Note M, as to which the date is March 19, 1996, on our audits of
the financial statements and financial statement schedules of The Boston Beer
Company as of December 31, 1995 and 1994 and for each of the three years in
the period ended December 31, 1995, which report is included in The Boston
Beer Company's Annual Report on Form 10-K for the year ended December 31,
1995.
/s/ COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
September 13, 1996
THE BOSTON BEER COMPANY, INC.
1996 STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
1. PURPOSE
The purpose of The Boston Beer Company, Inc. 1996 Stock Option Plan for
Non-Employee Directors (the "Plan") is to attract and retain the services of
experienced and knowledgeable independent Directors who are not employees
("Non-Employee Directors") of The Boston Beer Company, Inc. ("Boston Beer") for
the benefit of Boston Beer and its stockholders and to provide additional
incentive for Non-Employee Directors to continue to work in the best interests
of Boston Beer and its stockholders through continuing ownership of Boston Beer
common stock.
2. SHARES SUBJECT TO THE PLAN
The total number of shares of Class A Common Stock, par value $.01 per
share ("Shares"), of Boston Beer for which options may be granted under the Plan
shall not exceed 100,000 in the aggregate, subject to adjustment in accordance
with Section 9 hereof.
3. ELIGIBILITY; GRANT OF OPTION
Each of Pearson C. Cummin III, James C. Kautz, Charles Joseph Koch and
John B. Wing, who are the four current members of the Board of Directors of
Boston Beer (the "Board") who are not otherwise employees of Boston Beer or any
subsidiary and who were reelected as Directors at the Boston Beer Annual Meeting
held on May 21, 1996, shall be granted an option to acquire two thousand five
hundred (2,500) Shares under the Plan upon the adoption of the Plan by the Board
and shall be granted a further option for two thousand five hundred (2,500)
Shares upon each subsequent reelection to the Board. All new Non-Employee
Directors duly elected in the ten year period commencing on the date of the
adoption of the Plan, shall be granted an option to acquire two
thousand five hundred (2,500) Shares under the Plan upon their election to the
Board and upon each subsequent reelection. The date of grant for such options
granted to the four current Non-Employee Directors named above shall be the date
of adoption of the Plan by the Board, but such options shall become effective as
of such date of grant only upon approval of the Plan by the holders of Boston
Beer's issued and outstanding Class B Common Stock in accordance with Section 13
hereof. The date of the first grant for each subsequently elected Non-Employee
Director shall be the date of election. The options shall be non-qualified
options not intended to meet the requirements of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
4. OPTION AGREEMENT
Each option granted under the Plan shall be evidenced by an option
agreement (the "Agreement") duly executed on behalf of Boston Beer and by the
Non-Employee Director to whom such option is granted. Each Agreement shall (i)
comply with and be subject to the terms and conditions of the Plan, (ii) provide
that the optionee agrees to continue to serve as a Director of Boston Beer
during the term for which he or she was elected and (iii) contain such other
provisions not inconsistent with the provisions of the Plan, including with
respect to obligations of each Non- Employee Director not to compete with Boston
Beer, as the Board may determine.
5. OPTION EXERCISE PRICE
Subject to the provisions of Section 9 hereof, the option exercise
price for options granted under the Plan shall be the fair market value of the
Shares covered by the option on the date of grant of the option. For the
purposes hereof and of Section 6(b), the fair market value of Shares shall be
the mean between the high and low sales prices of the Class A Common Stock of
Boston Beer on the New York Stock Exchange as reported in the Wall Street
Journal for the date of grant, provided
that if the Class A Common Stock of Boston Beer is not listed on or actually
trading on the New York Stock Exchange, fair market value shall be determined in
good faith by the Board.
6. TIME AND MANNER OF EXERCISE OF OPTION
(a) Options granted under the Plan shall, subject to the provisions of
Section 7, be immediately exercisable in full; provided, however, that no option
granted under the Plan may be exercised prior to approval of the Plan by the
holders of Boston Beer's issued and outstanding Class B Common Stock, as
required by Section 13.
(b) The option may be exercised in full at one time or in part from
time to time by giving written notice to Boston Beer, signed by the person or
persons exercising the option, stating the number of Shares with respect to
which the option is being exercised, accompanied by payment in full for such
Shares, which payment may be in cash or in whole or in part in Shares of the
Class A Common Stock of Boston Beer already owned for a period of at least six
months by the person or persons exercising the option, valued at fair market
value, as determined under Section 5 hereof, on the date of exercise; provided,
however, that there shall be no such exercise at any one time as to fewer than
two hundred fifty (250) Shares or all of the remaining Shares then purchasable
by the person or persons exercising the option, if fewer than two hundred fifty
(250) Shares. Upon such exercise, delivery of a certificate for paid-up
non-assessable Shares shall be made at the principal Massachusetts office of
Boston Beer to the person or persons exercising the option at such time, during
ordinary business hours, not more than thirty (30) days from the date of receipt
of the notice by Boston Beer , as shall be designated in such notice, or at such
time, place and manner as may be agreed upon by Boston Beer and the person or
persons exercising the option.
7. TERM OF OPTIONS
(a) Each option shall expire ten (10) years from the date of the
granting thereof, but shall be subject to earlier termination as herein
provided.
(b) In the event of the death of an optionee, the option granted to
such optionee may be exercised by the estate of such optionee or by any person
or persons who acquired the right to exercise such option by bequest or
inheritance or otherwise by reason of the death of such optionee. Such option
may be exercised at any time within one (1) year after the date of death of such
optionee, at which time the option shall terminate, or prior to the date on
which the option otherwise expires by its terms, whichever is earlier.
(c) In the event that an optionee ceases to be a Director of Boston
Beer the option granted to such optionee may be exercised by him or her, any
time within three (3) months after the date such optionee ceases to be a
Director of Boston Beer, at which time the option shall terminate, but in any
event prior to the date on which the option expires by its terms, whichever is
earlier, unless termination as a Director (i) was by Boston Beer for cause, in
which case the option shall terminate immediately at the time the optionee
ceases to be a Director of Boston Beer , (ii) was because the optionee has
become disabled (within the meaning of Section 22(e)(3) of the Code), or (iii)
was by reason of the death of the optionee. In the case of death, see Section
7(b) above. In the case of disability, the option may be exercised at any time
within one (1) year after the date of termination of the optionee's directorship
with Boston Beer, at which time the option shall terminate, but in any event
prior to the date on which the option otherwise expires by its terms, whichever
is earlier.
8. OPTIONS NOT TRANSFERABLE
The right of any optionee to exercise an option granted to him or her
under the Plan shall not be assignable or transferable by such optionee
otherwise than by will or the laws of descent and distribution, or pursuant to a
qualified domestic relations order as defined by the Code or Title I of the
Employee Retirement Income Security Act, or the rules thereunder. Any option
granted under the Plan shall be exercisable during the lifetime of such optionee
only by him or her. Any option granted under the Plan shall be null and void and
without effect upon the bankruptcy of the optionee, or upon any attempted
assignment or transfer, except as herein provided, including without limitation
any purported assignment, whether voluntary or by operation of law, pledge,
hypothecation or other disposition, attachment, trustee process or similar
process, whether legal or equitable, upon such option.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
In the event that the outstanding shares of the Class A Common Stock of
Boston Beer are changed into or exchanged for a different number or kind of
shares or other securities of Boston Beer or of another corporation by reason of
any reorganization, merger, consolidation, recapitalization, reclassification,
stock split-up, combination of shares or dividends payable in capital stock,
appropriate adjustment shall be made in the number and kind of shares as to
which outstanding options, or portions thereof then unexercised, shall be
exercisable, to the end that the proportionate interest of the optionee shall be
maintained as before the occurrence of such event, and such adjustment in
outstanding options shall be made without change in the total price applicable
to the unexercised portion of such options and with a corresponding adjustment
in the option price per share.
10. RESTRICTIONS ON ISSUE OF SHARES
Notwithstanding the provisions of Section 6 hereof, Boston Beer may
delay the issuance of Shares covered by the exercise of any option granted under
the Plan and the delivery of a certificate for such Shares until one of the
following conditions shall be satisfied:
(i) the Shares with respect to which an option has been
exercised are at the time of the issue of such Shares effectively registered
under applicable Federal and state securities acts now in force or hereafter
amended; or
(ii) counsel for Boston Beer shall have given an opinion,
which opinion shall not be unreasonably conditioned or withheld, that such
Shares are exempt from registration under applicable Federal and state
securities acts now in force or hereafter amended.
It is intended that all exercises of options granted under the Plan
shall be effective. Accordingly, Boston Beer shall use its best efforts to bring
about compliance with the above conditions within a reasonable time, except that
Boston Beer shall be under no obligation to cause a registration statement or a
post-effective amendment to any registration statement to be prepared at its
expense solely for the purpose of covering the issue of Shares in respect of
which any option may be exercised, except as otherwise agreed to by Boston Beer
in writing.
11. RIGHTS OF HOLDER ON PURCHASE FOR INVESTMENT; SUBSEQUENT
REGISTRATION
Unless the Shares to be issued upon exercise of an option granted under
the Plan have been effectively registered under the Securities Act of 1933 (the
"1933 Act"), as now in force or hereafter amended, Boston Beer shall be under no
obligation to issue any Shares covered by any option unless the person who
exercises such option, in whole or in part, shall give a written representation
and
undertaking to Boston Beer which is satisfactory in form and scope to counsel to
Boston Beer and upon which, in the opinion of such counsel, Boston Beer may
reasonably rely, that he or she is acquiring the Shares issued to him pursuant
to such exercise of the option for his or her own account as an investment and
not with a view to, or for sale in connection with, the distribution of any such
Shares, and that he or she will make no transfer of the same except in
compliance with any rules and regulations in force at the time of such transfer
under the 1933 Act, or any other applicable law, and that if Shares are issued
without such registration a legend to this effect may be endorsed upon the
securities so issued. In the event that Boston Beer shall, nevertheless, deem it
necessary or desirable to register under the 1933 Act or other applicable
statutes any Shares with respect to which an option shall have been exercised,
or to qualify any such Shares for exemption from the 1933 Act or other
applicable statutes, then Boston Beer shall take such action at its own expense
and may require from each optionee such information in writing for use in any
registration statement, prospectus, preliminary prospectus or offering circular
as is reasonably necessary for such purpose and may require reasonable indemnity
to Boston Beer and its Officers and Directors from such holder against all
losses, claims, damages and liabilities arising from such use of the information
so furnished and caused by any untrue statement of any material fact therein or
caused by the omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made.
12. LOANS PROHIBITED
Boston Beer shall not, directly or indirectly, lend money to an
optionee or to any person or persons entitled to exercise an option by reason of
the death of an optionee for the purpose of assisting any of them in the
acquisition of Shares covered by an option granted under the Plan.
13. APPROVAL OF STOCKHOLDERS
The Plan shall be subject to approval by the affirmative vote of the
holders of a majority of the issued and outstanding shares of the Class B Common
Stock of Boston Beer present or represented and entitled to vote at a duly held
stockholders' meeting, or by written consent of all of the holders of such Class
B Common Stock, and shall take effect immediately as of its date of adoption
upon such approval.
14. EXPENSES OF THE PLAN
All costs and expenses of the adoption and administration of the Plan
shall be borne by Boston Beer , and none of such expenses shall be charged to
any optionee.
15. TERMINATION AND AMENDMENT OF PLAN
Unless sooner terminated as herein provided, the Plan shall terminate
ten (10) years from the date upon which the Plan was duly approved by the
holders of Boston Beer's issued and outstanding Class B Common Stock. The Board
may at any time terminate the Plan or make such modification or amendment
thereof as it deems advisable; provided, however, that, except as provided in
Section 9 hereof, no modification or amendment to the provisions of the Plan may
be made more than once every six (6) months other than to comport with changes
in the Code, the Employee Retirement Income Security Act, or the rules
thereunder, if the effect of such amendment or modification would be to change
(i) the requirements for eligibility under the Plan, (ii) the timing of the
grants of options to be granted under the Plan or the exercise price thereof, or
(iii) the number of Shares subject to options to be granted under the Plan
either in the aggregate or to one Director. Any amendment to the provisions of
the Plan which (i) materially increases the number of Shares which may be
subject to options granted under the Plan, (ii) materially increases the
benefits accruing to Non-Employee
Directors under the Plan, or (iii) materially modifies the requirement for
eligibility to participate in the Plan, shall be subject to approval by the
holders of Boston Beer's Class B Common Stock obtained in the manner stated in
Section 13 hereof. Termination or any modification or amendment of the Plan
shall not, without the consent of an optionee, affect his or her rights under an
option previously granted to him or her.
16. LIMITATION OF RIGHTS IN THE OPTION SHARES
An optionee shall not be deemed for any purpose to be a stockholder of
Boston Beer with respect to any of the options except to the extent that the
option shall have been exercised with respect thereto and, in addition, a
certificate shall have been issued theretofore and delivered to the optionee.
17. NOTICES
Any communication or notice required or permitted to be given under the
Plan shall be in writing, and mailed by registered or certified mail or
delivered by hand, if to Boston Beer , to its principal place of business,
Attention: President, and, if to an optionee, to the address as appearing on the
records of Boston Beer .
18. COMPLIANCE WITH RULE 16b-3.
It is the intention of Boston Beer that the Plan comply in all respects
with Rule 16b-3 promulgated under Section 16(b) of the Securities Exchange Act
of 1934 (the "1934 Act") and that Participants remain disinterested persons for
purposes of administering other employee benefit plans of Boston Beer and having
transactions under such other plans be exempt from Section 16(b) of the 1934
Act. Therefore, if any Plan provision is found not to be in compliance with Rule
16b-3 or if any Plan provisions would disqualify Participants from remaining
disinterested persons, that
provisions shall be deemed null and void, and in all events the Plan shall be
construed in favor of its meeting the requirements of Rule 16b-3.
ADOPTED BY THE BOARD OF DIRECTORS ON MAY 21, 1996
APPROVED BY THE SOLE HOLDER OF THE CLASS B COMMON STOCK ON MAY 21,
1996.
September 18, 1996
The Boston Beer Company, Inc.
75 Arlington Street
Boston, MA 02116
Ladies and Gentlemen:
We are counsel to The Boston Beer Company, Inc., a Massachusetts
Corporation (the "Company"), and as such counsel we are familiar with the
corporate proceedings taken in connection with the adoption of the Company's
1996 Stock Option Plan for Non-Employee Directors (the "Plan"). We are also
familiar with the Registration Statement on Form S-8 to which a copy of this
opinion will be attached as an Exhibit.
As such counsel, we have examined the corporate records of the Company,
including its Articles of Organization, By-laws, Minutes of Meetings of its
Board of Directors and Stockholders and such other documents as we have deemed
necessary as a basis for the opinions herein expressed.
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the Commonwealth of Massachusetts.
2. The Company has duly reserved 100,000 shares of its Class A
Common Stock, $0.01 par value per share, for issuance under the
Plan.
3. The shares of Class A Common Stock issuable pursuant to the Plan
have been duly authorized and, when issued in accordance with
the terms of the Plan, such shares will be validly issued, fully
paid and non-assessable shares of capital stock of the Company
to which no personal liability will attach.
The Boston Beer Company, Inc.
September 18, 1996
Page 2
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement on Form S-8 and to the reference to us under the caption
"Interests of Named Experts and Counsel" in the Registration Statement.
Very truly yours,
/s/Hutchins, Wheeler & Dittmar
Hutchins, Wheeler & Dittmar
A Professional Corporation
FHG:SAC
Enclosures