As filed with the Securities and Exchange Commission on March 28, 2002.
Registration No. 333-
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, MA 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
101 Federal Street
Boston, Massachusetts 02110
(617) 951-6600
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of Registration
registered registered(1) Offering Price Per Share Aggregate Offering Price Fee(2)
Class A Common Stock
$.01 par value, per share 100,000 $14.675 $1,467,000 $135.01
(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) Computed in accordance with Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee. The registration fee has been
calculated with respect to the shares registered on the basis of the average of
the high and low price as reported on the New York Stock Exchange ("NYSE"),
calculated at $14.675 on March 21, 2002.
NOTE
This Registration Statement is being filed solely for the purpose of
registering 100,000 additional shares of Class A Common Stock of The Boston Beer
Company, Inc. issuable pursuant to The Boston Beer Company, Inc. 1996 Stock
Option Plan For Non-Employee Directors (the "Plan") originally adopted in 1996.
The total number of shares issuable under the Plan is 200,000 as of December 14,
2001, of which 100,000 shares were previously registered on Form S-8 (Reg. No.
333-12221). Pursuant to Instruction E to Form S-8, the contents of the
Registration Statement on Form S-8 (Registration No. 333-12221) are herein
incorporated by reference.
ITEM 8. EXHIBITS
Number Description
4.1 Second Amendment to the 1996 Stock Option Plan For Non-Employee Directors.
5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional Corporation.
23.1 Consent of Hutchins, Wheeler & Dittmar, a Professional Corporation (including in Exhibit 5.1).
23.2 Consent of Arthur Andersen, LLP.
24.1 Powers of Attorney (See Page II-2).
II-2
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 March 27, 2002.
THE BOSTON BEER COMPANY, INC.
By /s/Martin F. Roper
Martin F. Roper, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Martin Roper and C. James Koch and each of them
acting without the other, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him or in his name, place and
stead, in any and all capacities to sign any and all amendments or
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 attorney-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 attorney-in-fact and agent, or his substitutes, may
lawfully do or cause to be done by virtue hereof.
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/Martin F. Roper President, Chief Executive Officer and March 27, 2002
Martin F. Roper Director (principal executive officer)
/s/Richard P. Lindsay Chief Financial Officer (principal March 27, 2002
Richard P. Lindsay financial and accounting officer)
/s/Richard P. Lindsay Chairman of the Board of Directors March 27, 2002
C. James Koch
/s/Pearson C. Cummin, III Director March 12, 2002
Pearson C. Cummin, III
/s/James C. Kautz Director March 27, 2002
James C. Kautz
/s/Robert N. Hiatt Director March 12, 2002
Robert N. Hiatt
/s/John B. Wing Director March 12, 2002
John B. Wing
HWDHWD2 957291v2
INDEX TO EXHIBITS
Exhibit
Number
4.1 Second Amendment to the 1996 Stock Option Plan For Non-Employee Directors.
5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional Corporation.
23.1 Consent of Hutchins, Wheeler & Dittmar, A Professional Corporation (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen, LLP.
24.1 Powers of Attorney (See page II-2).
THE BOSTON BEER COMPANY, INC.
1996 STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
(As Amended Effective December 19, 1997)
(and Effective December 14, 2001)
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 200,000 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) years 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.
AMENDED BY THE BOARD OF DIRECTORS AND THE SOLE HOLDER OF THE CLASS B COMMON
STOCK EFFECTIVE DECEMBER 19, 1997.
AMENDED BY THE BOARD OF DIRECTORS AND THE SOLE HOLDER OF THE CLASS B COMMON
STOCK EFFECTIVE DECEMBER 14, 2001.
March 27, 2002
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 3,687,500 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.
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
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of The Boston Beer Company, Inc. on Form S-8 of our report dated February 11,
2002, on our audits of the consolidated financial statements of The Boston Beer
Company, Inc. as of December 29, 2001 and December 30, 2000, and for each of
the three years in the periods ending December 29, 2001, December 30, 2000 and
December 25, 1999, which report is included in the Form 10-K of The Boston
Beer Company, Inc., for the year ended December 29, 2001.
/s/ Arthur Anderson LLP
Boston, Massachusetts
March 25, 2002