-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LwvnyZ2zx5Eb1hNMma8x9DdzUfHC1KT8nwDJC2qSuK4gNLLhdVYMVM1BcxRoRV2K /2ap2kaU2TiYlHt3KhTV2Q== 0000950149-03-001564.txt : 20030724 0000950149-03-001564.hdr.sgml : 20030724 20030707131030 ACCESSION NUMBER: 0000950149-03-001564 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20030707 EFFECTIVENESS DATE: 20030707 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GOOD GUYS INC CENTRAL INDEX KEY: 0000785931 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-RADIO TV & CONSUMER ELECTRONICS STORES [5731] IRS NUMBER: 942366177 STATE OF INCORPORATION: DE FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-106847 FILM NUMBER: 03776542 BUSINESS ADDRESS: STREET 1: 1600 HARBOR BAY PARKWAY STREET 2: SUITE 200 CITY: ALAMEDA STATE: CA ZIP: 94502 BUSINESS PHONE: 5107476000 MAIL ADDRESS: STREET 1: 1600 HARBOR BAY PARKWAY STREET 2: SUITE 200 CITY: ALAMEDA STATE: CA ZIP: 94502 S-8 1 f91317sv8.htm FORM S-8 sv8
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As filed with the Securities and Exchange Commission
on July 7, 2003
Registration Statement No. 333-___________

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

GOOD GUYS, INC.

(Exact name of registrant as specified in its charter)
     
Delaware
(State or other jurisdiction of
incorporation or organization)		   94-2366177
(I.R.S. Employer
Identification No.)

1600 Harbor Bay Parkway, Suite 200, Alameda, California 94502-1840
(Address of Principal Executive’s Offices Zip Code)

1994 Stock Incentive Plan
Employee Stock Purchase Plan
(Full title of plans)

David A. Carter, Vice President/Finance,
Acting Chief Financial Officer & Secretary
Good Guys, Inc.
1600 Harbor Bay Parkway, Suite 200
Alameda, California 94502-1840
(Name and address of agent for service)

(510) 747-6000
(Telephone number, including area code, of agent for service)

CALCULATION OF REGISTRATION FEE

                                 
Title of Securities   Amount to be   Proposed Maximum   Proposed Maximum   Amount of
to be Registered   Registered   Offering Price per Share*   Aggregate Offering Price*   Registration Fee
 
 
 
 
Common Stock, par value $.001 per share:
                                
   1994 Stock Incentive Plan
     500,000     $ 1.43     $ 715,000     $ 57.84  
Employee Stock Purchase Plan
     750,000     $ 1.43     $ 1,072,500     $ 86.77  
 
    
     
     
     
 
Total
     1,250,000     $ 1.43     $ 1,787,500     $ 144.61  
 
    
     
     
     
 

*Estimated solely for the purpose of computing the registration fee pursuant to Rule 457, on the basis of the last sale price of the Registrant’s Common Stock as reported on the Nasdaq National Market on July 2, 2003.

 

PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Item 4. DESCRIPTION OF SECURITIES.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Item 8. EXHIBITS.
Item 9. UNDERTAKINGS.
SIGNATURES
INDEX TO EXHIBITS
Exhibit 5.1
Exhibit 23.1
Exhibit 24.1

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PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.

     The following documents are incorporated by reference in this registration statement:

  (a)   Registrant’s Annual Report on Form 10-K for the fiscal year ended February 28, 2003, filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
 
  (b)   All other reports, if any, filed by Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year ended February 28, 2003;
 
  (c)   The description of Registrant’s Common Stock contained in the Registration Statement on Form 8-A filed with the Securities and Exchange Commission (the “Commission”) on February 6, 1986 under Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description.

     All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereunder have been sold, or which deregisters all securities then remaining unsold under this registration statement, 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.

Item 4. DESCRIPTION OF SECURITIES.

     Not applicable; the class of securities to be offered is registered under Section 12 of the Exchange Act.

Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.

     Not applicable.

Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.

     As permitted by Sections 102 and 145 of the Delaware General Corporation Law, the Registrant’s certificate of incorporation eliminates a director’s personal liability for monetary damages to the Registrant and its stockholders arising from a breach or alleged breach of a director’s fiduciary duty, except for liability under Section 174 of the

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Delaware General Corporation Law or liability for any breach of the director’s duty of loyalty to the Registrant or its stockholders, for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, or for any transaction from which the director derived an improper personal benefit. The effect of this provision in the certificate of incorporation is to eliminate the rights of the Registrant and its stockholders (through stockholders’ derivative suits on behalf of the Registrant) to recover monetary damages against a director for breach of fiduciary duty as a director (including breaches resulting from negligent or grossly negligent behavior) except in the situations described above.

     The Registrant’s bylaws provide for indemnification of officers, directors and employees, and the Company has entered into an indemnification agreement with each officer and director of the Registrant (an “Indemnitee”). Under the bylaws and such indemnification agreements, the Registrant must indemnify an Indemnitee to the fullest extent permitted by Delaware law for losses and expenses incurred in connection with actions in which the Indemnitee is involved by reason of having been a director or employee of the Registrant. The Registrant is also obligated to advance expenses an Indemnitee may incur in connection with such actions before any resolution of the action, and the Indemnitee may sue to enforce his or her right to indemnification or advancement of expenses.

     The Registrant also maintains an insurance policy insuring its directors and officers against liability for certain acts and omissions while acting in their official capacities.

     There is no litigation pending, and neither the Registrant nor any of its directors know of any threatened litigation, which might result in a claim for indemnification by any director or officer.

Item 7. EXEMPTION FROM REGISTRATION CLAIMED.

     Not applicable.

Item 8. EXHIBITS.

     
Exhibit    
Number   Description of Document
 
4.1   1994 Stock Incentive Plan, as amended.(1)
     
4.2   Employee Stock Purchase Plan, as amended.(2)
     
5.1   Opinion of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, A Professional Corporation.
     
23.1   Consent of Deloitte & Touche LLP.

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Exhibit    
Number   Description of Document
 
23.2   Consent of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, A Professional Corporation (included in Exhibit 5.1).
     
24.1   Power of Attorney.

(1)   Exhibit 10.4 to the Company’s Form 10-K Annual Report for the fiscal year ended February 28, 2003; incorporated herein by reference.
 
(2)   Exhibit 10.3 to the Company’s Form 10-K Annual Report for the fiscal year ended February 28, 2003; 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 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 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 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 with or furnished to the

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      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 purposes of determining any liability under the Securities 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.
 
  (c)   Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the 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 of 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 City of Alameda, State of California on the 6th day of July, 2003.

         
    GOOD GUYS, INC.
         
    By:   /s/ KENNETH R. WELLER
       
        Kenneth R. Weller
Chairman and Chief Executive Officer

     Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.

         
/s/ KENNETH R. WELLER
(Kenneth R. Weller)		   Chairman and Chief Executive
Officer (Principal Executive
Officer) 		  July 7, 2003
 
         
 
/s/ DAVID A. CARTER
(David A. Carter)		   Acting Chief Financial Officer
(Principal Financial and
Accounting Officer) 		  July 7, 2003
 
         
 
/s/ CATHY A. STAUFFER*
(Cathy A. Stauffer )		   Director   July 7, 2003
 
         
 
/s/ RUSSELL M. SOLOMON*
(Russell M. Solomon)		   Director   July 7, 2003
 
         
 
/s/ JOHN E. MARTIN*
(John E. Martin)		   Director   July 7, 2003
 
         
 
/s/ THOMAS F. HERMAN*
(Thomas F. Herman)		   Director   July 7, 2003
 
         
 
*By: /s/ DAVID A. CARTER
         David A. Carter
         Attorney-in-Fact		        

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INDEX TO EXHIBITS

     
Exhibit    
Number   Description of Document
 
4.1   1994 Stock Incentive Plan, as amended.(1)
     
4.2   Employee Stock Purchase Plan, as amended.(2)
     
5.1   Opinion of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, A Professional Corporation.
     
23.1   Consent of Deloitte & Touche LLP.
     
23.2   Consent of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, A Professional Corporation (included in Exhibit 5.1).
     
24.1   Power of Attorney.

(1)   Exhibit 10.4 to the Company’s Form 10-K Annual Report for the fiscal year ended February 28, 2003; incorporated herein by reference.
 
(2)   Exhibit 10.3 to the Company’s Form 10-K Annual Report for the fiscal year ended February 28, 2003; incorporated herein by reference.

  EX-5.1 3 f91317exv5w1.txt EXHIBIT 5.1 EXHIBIT 5.1 July 3, 2003 Good Guys, Inc. 1600 Harbor Bay Parkway, Suite 200 Alameda, California 94502-1840 Ladies and Gentlemen: You have requested our opinion as counsel for Good Guys, Inc., a Delaware corporation (the "Company"), in connection with the registration under the Securities Act of 1933, as amended, and the Rules and Regulations promulgated thereunder, and the public offering by the Company of up to (1) 500,000 shares of Common Stock issuable under the Company's 1994 Stock Incentive Plan, and (2) 750,000 shares of Common Stock issuable under the Company's Employee Stock Purchase Plan. We have examined the Company's Registration Statement of Form S-8 in the form to be filed with the Securities and Exchange Commission on or about July 7, 2003 (the "Registration Statement"). We further have examined the Restated Certificate of Incorporation of the Company as certified by the Secretary of State of the State of Delaware, the Bylaws and the minute books of the Company as a basis for the opinion hereafter expressed. Based on the foregoing examination, we are of the opinion that, upon issuance and sale in the manner described in the Registration Statement, the shares of Common Stock covered by the Registration Statement will be legally issued, fully paid and nonassessable. We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, HOWARD, RICE, NEMEROVSKI, CANADY, FALK & RABKIN A Professional Corporation By: /s/ RICHARD W. CANADY ---------------------------- RICHARD W. CANADY EX-23.1 4 f91317exv23w1.txt EXHIBIT 23.1 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Good Guys, Inc. on Form S-8 of our report, dated April 16, 2003, appearing in the Annual Report on Form 10-K of Good Guys, Inc. for the fiscal year ended February 28, 2003. /s/ Deloitte & Touche LLP July 2, 2003 EX-24.1 5 f91317exv24w1.txt EXHIBIT 24.1 EXHIBIT 24.1 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below, being a member of the Board of Directors of Good Guys, Inc. (the "Company"), hereby constitutes and appoints Peter G. Hanelt and David A. Carter, and each of them, as his true and lawful attorney-in-fact and agent, each with full power of substitution and resubstitution, for and in his name, place and stead, in any and all capacities, to sign on his behalf a registration statement or registration statements on Form S-8 with respect to (1) an increase by 500,000 in the number of shares of its common stock issuable under options granted under its 1994 Stock Incentive Plan and (2) an increase by 750,000 in the number of shares of its common stock issuable under the Company's Employee Stock Purchase Plan, and any and all amendments (including post-effective amendments) thereto and any registration statements relating to the same offerings pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith and with such registration statements, with the Securities and Exchange Commission, with the full power and authority to do and perform each and every act and thing necessary or advisable to be done in connection therewith, 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 substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney may be executed in any number of counterparts. Dated: April 10, 2003 /s/ RUSSELL M. SOLOMON ------------------------------------- Russell M. Solomon /s/ JOHN E. MARTIN ------------------------------------- John E. Martin /s/ THOMAS F. HERMAN ------------------------------------- Thomas F. Herman /s/ CATHY A. STAUFFER ------------------------------------- Cathy A. Stauffer -----END PRIVACY-ENHANCED MESSAGE-----