Ballantyne OF Omaha Inc - Securities Registration: Employee Benefit Plan (S-8)
September 10 2008 - 4:42PM
Edgar (US Regulatory)
As filed with the Securities and
Exchange Commission on September 10, 2008
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington,
D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BALLANTYNE OF OMAHA, INC.
(Exact Name of Registrant as
Specified in its Charter)
DELAWARE
(State or Other Jurisdiction of
Incorporation or Organization
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47-0587703
(I.R.S. Employer Identification Number)
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4350 McKinley Street, Omaha, Nebraska 68112
(Address of Principal Executive
Offices) (ZIP Code)
BALLANTYNE OF OMAHA, INC., NON-EMPLOYEE DIRECTORS
RESTRICTED STOCK PLAN
(1)
(Full Title of the Plan)
MICHAEL C.
PALLESEN
CLINE,
WILLIAMS, WRIGHT, JOHNSON & OLDFATHER, L.L.P.
1125 SOUTH
103
rd
STREET, SUITE 320
OMAHA,
NEBRASKA 68124-1090
402-397-1700
402-397-1806
(Name and Address of Agent for
Service)
(1)
The Company has reserved and is registering 120,000 shares of Common
Stock for issuance pursuant to the 2008 Non-Employee Directors Restricted
Stock Plan.
CALCULATION
OF REGISTRATION FEE
Title Of
Each Class Of
Securities
To Be Registered
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Amount To Be
Registered
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Proposed Maximum
Offering Price
Per Unit
(1)(2)
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Proposed
Maximum
Aggregate
Offering Price(2)
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Amount Of
Registration
Fee
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Common Stock
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120,000
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$ 4.22
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$ 506,400
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$ 19.90
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(1)
In addition, pursuant to Rule 416(c) under the Securities Act
of 1933, this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plans
described herein.
(2)
The proposed maximum offering price was
determined in accordance with Rule 457(c) under the Securities Act of
1933, based on the last sale price reported on the American Stock Exchange on September 8,
2008.
PART I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information
specified in Part I of Form S-8 will be delivered to the directors in
accordance with Form S-8 and Rule 428(b)(1) under the Securities
Act of 1933.
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents
by Reference
.
Ballantyne of Omaha, Inc. (the Company)
hereby incorporates by reference in this registration statement the following
documents previously filed with the Securities and Exchange Commission (the Commission):
(1)
The Companys latest
Annual Report on Form 10-K for the fiscal year ended December 31,
2007, filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the Exchange Act), containing audited
financial statements for the Companys latest fiscal year;
(2)
All other reports filed
pursuant to Section 13(a) or 15(d) of the Exchange Act since the
end of the fiscal year covered by the document referred to in (1) above;
and
(3)
The description of the
Companys Common Stock contained in the Companys Registration Statement on Form 8-A
(File No. 1-13906)) filed under the Securities Exchange Act of 1934-, as
amended, including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the
Company 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 then remaining unsold, shall be deemed to be incorporated
by reference in the registration statement and to be a part thereof from the
date of the filing of such documents.
With respect to the Annual Report on Form 10-K,
as amended, for the period ended December 31, 2007, which is incorporated
by reference above, the Company notes that the independent valuation firm
referenced in connection with the acquisition of Marcel Desrochers, Inc.
in the Form 10-K, as amended, (page 48) was CBIZ Valuation Group,
LLC. With respect to the Quarterly Reports on Form 10-Q for the periods
ended March 31, 2008 and June 30, 2008, both of which are
incorporated by reference above, the Company notes that the independent
valuation firm referenced in connection with the valuation of the Auction Rate
Securities in the Form 10-Q for the period ended March 31, 2008 (page 26)
and for the period ended June 30, 2008 (page 8) was Gifford Fong
Associates. Both of these firms have
filed consents which are filed as exhibits to this registration statement.
Item 4.
Description of Securities
.
Not applicable.
Item 5.
Interests of Named Experts
and Counsel
.
Not applicable.
Item 6.
Indemnification of Directors
and Officers
.
The provision regarding indemnification of
directors and officers is found in the Bylaws of the Company which are
incorporated by reference to Exhibits 3.2 through 3.2.4 to the Form 10-K
for the fiscal year ended December 31, 2007.
Item 7.
Exemption from Registration
Claimed
.
Not applicable.
Item 8.
Exhibits
.
See Exhibit Index on page 7.
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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;
(ii)
To reflect in the
prospectus any facts or events 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 the 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
twenty percent 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 registration statement is on Form S-3, Form S-8 or Form F-3,
and 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 Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2)
That,
for 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 are made 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 registrants annual
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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 plans annual report pursuant to Section 15(d) of
the Exchange Act of 1934) that is incorporated by reference in the 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.
(h)
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.
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
City of Omaha, State of Nebraska, on September 10, 2008.
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BALLANTYNE OF OMAHA, INC.
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/s/ Kevin S. Herrmann
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Kevin S. Herrmann, Secretary,
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Treasurer, Chief Financial Officer
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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
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Title
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Date
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/s/ William F.
Welsh, II
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William F. Welsh, II
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Director and
Chairman of the
Board
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September 10, 2008
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/s/ John P. Wilmers
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John P. Wilmers
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Director, President
and Chief
Executive Officer
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September 10, 2008
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/s/ Alvin Abramson
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Alvin Abramson
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Director
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September 10, 2008
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/s/ Marc E. LeBaron
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Marc E. LeBaron
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Director
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September 10, 2008
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/s/ Mark D. Hasebroock
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Mark D. Hasebroock
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Director
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September 10, 2008
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/s/ Christopher E. Beach
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Christopher E. Beach
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Director
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September 10, 2008
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The Plan
. Pursuant to the requirements of the
Securities Act of 1933, the following persons, in their capacities as members
of the Plan Committee, have duly caused the registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Omaha, State of Nebraska, on September 10, 2008.
Signature
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Date
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/s/ William F.
Welsh, II
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William F. Welsh, II
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September 10, 2008
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/s/ John P. Wilmers
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John P. Wilmers
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September 10, 2008
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/s/ Alvin Abramson
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Alvin Abramson
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September 10, 2008
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5
/s/ Marc E. LeBaron
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Marc E. LeBaron
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September 10, 2008
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/s/ Mark D. Hasebroock
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Mark D. Hasebroock
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September 10, 2008
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/s/ Christopher E Beach
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Christopher E. Beach
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September 10, 2008
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6
EXHIBIT
INDEX
Exhibit
Number
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Exhibit Index
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3.1
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Certificate
of Incorporation (incorporated by reference to Exhibits 3.1 through
3.1.3 to the Form S-8, File No. 333-139177 (the Form S-8)).
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3.1.1
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Bylaws of
the Company, as amended through the date hereof (incorporated by reference to
Exhibit 3.2 through 3.2.4 of the Form 10-K for the fiscal year
ended December 31, 2007).
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5
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Opinion of
Counsel (filed herewith).
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23.1
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Consent of
KPMG LLP, independent registered public accounting firm (filed herewith).
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23.2
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Consent of
Counsel (included in Exhibit 5).
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23.3
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Consent of
Gifford Fong Associates (filed herewith).
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23.4
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Consent of
Gifford Fong Associates (filed herewith).
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23.5
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Consent of
CBIZ Valuation Group, LLC (filed herewith).
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99.1
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Ballantyne
of Omaha, Inc., Non-Employee Directors Restricted Stock Plan
(incorporated by reference to Appendix A to the Schedule 14A Definitive Proxy
Statement for the Companys 2008 Annual Meeting).
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