As filed with the Securities and Exchange Commission on May 6, 2003
Registration No. ___ - ________
_____________________________________________________________________________
_____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________________
DETWILER, MITCHELL & CO.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
95-2627415
(I.R.S. Employer Identification No.)
225 FRANKLIN STREET, 20TH FLOOR
BOSTON, MASSACHUSETTS 02110
(Address of Principal Executive Offices)
_________________________________
Stock Options and Stock Issuance
(Full title of the plan)
_________________________________
JAMES K. MITCHELL
DETWILER, MITCHELL & CO.
225 FRANKLIN STREET, 20TH FLOOR
BOSTON, MASSACHUSETTS 02110
(617) 747-0100
(Name, address and telephone number, including area code,
of agent for service)
________________________________
COPY TO:
David R. Snyder, Esq.
Pillsbury Winthrop LLP
101 West Broadway, Suite 1800
San Diego, California 92101
(619) 234-5000
________________________________
CALCULATION OF REGISTRATION FEE
<table>
<caption>
- ----------------------------------------------------------------------------------
PROPOSED
MAXIMUM PROPOSED
OFFERING MAXIMUM AMOUNT
AMOUNT PRICE AGRREGATE OF
TITLE OF SECURITIES TO BE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE(2) PRICE (2) FEE
- ----------------------------------------------------------------------------------
<s> <c> <c> <c> <c>
Common Stock, $0.01 par value 2,977,500 $1.548 $4,609,170 $372.88
per share, issuable pursuant shares
to the exercise of options
issued under certain stock
option agreements issued by
the Registrant and shares
issued to consultants by
the Registrant
</table>
(1) This Registration Statement shall also cover any additional shares
of common stock which become issuable by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the Registrant's receipt of consideration which
results in an increase in the number of the outstanding shares of
the Registrant's common stock.
(2) Estimated pursuant to Rule 457(h) of the Securities Act of 1933, as
amended (the "Securities Act") solely for the purpose of calculating
the registration fee on the basis of the average of the high and low
selling prices of the Registrant's Common Stock as reported on the
Nasdaq SmallCap Market over a 10 day period ending May 1, 2003 by
The Nasdaq Stock Market.
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
<page>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1: PLAN INFORMATION*
ITEM 2: REGISTRAN INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from the
Registration Statement in accordance with Rule 428
under the Securities Act and the Note to Part I of Form
S-8.
I-1
<page>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3: INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been previously filed by
the Registrant with the Securities and Exchange Commission (the
"SEC"), are incorporated by reference into this Registration
Statement:
(a) The description of the Registrant's Common Stock
contained in Registrant's Registration Statement
on Form 8-A relating to the Registrant's Common
Stock filed with the SEC pursuant to Section 12(g)
of the Exchange Act, as amended (the "Exchange
Act");
(b) Registrant's Annual Report on Form 10-K for the
year ended December 31, 2002, filed with the SEC
on March 11, 2003, pursuant to Section 13(a) of
the Exchange Act; and
(c) Registrant's Current Report on Form 8-K filed with
the SEC on April 7, 2003, pursuant to Section
13(a) of the Exchange Act.
Until such time that a post-effective amendment to this
Registration Statement has been filed which indicates that all
securities issued hereby have been sold or which deregisters all
securities remaining unsold at the time of such amendment, all
documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act shall be
deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in
any subsequently filed document which is also deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
ITEM 4: DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5: INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6: INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law
authorizes a court to award, or a corporation's board of
directors to grant, indemnity to directors and officers in terms
sufficiently broad to permit such indemnification under certain
circumstances for liabilities (including reimbursement for
expenses incurred) arising under the Securities Act.
As permitted by Delaware General Corporation Law, the
Registrant's certificate of incorporation includes a provision
that eliminates the personal liability of its directors for
monetary damages for breach
II-1
<page>
of fiduciary duty as a director,
except to the extent that exculpation from liability is not
permitted under the Delaware General Corporation Law as in effect
at the time such liability is determined.
As permitted by the Delaware General Corporation Law, the
bylaws of the Registrant provide for indemnification of the
Registrant's directors, officers, employees and other agents to
the extent and under the circumstances permitted by the Delaware
General Corporation Law.
The Registrant has also entered into agreements with certain
of its directors and executive officers that will require the
Registrant, among other things, to indemnify them against certain
liabilities that may arise by reason of their status or service
as directors or executive officers to the fullest extent not
prohibited by law.
The Registrant has purchased directors and officers
liability insurance.
ITEM 7: EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8: EXHIBITS
See Exhibit Index.
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 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.
(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 this Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(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 SEC such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful
defense of any
II-2
<page>
action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-3
<page>
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
the City of Boston, Commonwealth of Massachusetts on this 6th day
of May, 2003.
Detwiler, Mitchell & Co.
By: /s/James K. Mitchell
------------------------------------
James K. Mitchell
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints James Mitchell
and Stephen Frank and each of them, as his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and
stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration
Statement on Form S-8, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-
in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all
intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-facts
and agents, or either of them, or their or his substitute or
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/James K. Mitchell Chairman and Chief May 6, 2003
- ---------------------- Executive Officer
James Mitchell (Principal Executive Officer)
/s/Stephen Martino Chief Financial Officer May 6, 2003
- ---------------------- (Principal Financial and
Stephen Martino Accounting Officer)
/s/Edward Baran Director May 6, 2003
- ----------------------
Edward Baran
/s/Barton Beek Director May 6, 2003
- ----------------------
Barton Beek
/s/James Graves Vice Chairman and Director May 6, 2003
- ----------------------
James Graves
/s/ Robert Detwiler Director May 6, 2003
- ----------------------
Robert Detwiler
/s/ Frank Jenkins Director May 6, 2003
- ----------------------
Frank Jenkins
/s/Robert Sharp Director May 6, 2003
- ----------------------
Robert Sharp
II-4
<page>
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
5.1 Opinion of Pillsbury Winthrop LLP.
10.1 Form of standard stock option agreement
covered by this registration statement
(incorporated by reference to the
Registrant's Annual Report on Form 10-K
for the year ended December 31, 2001).
23.1 Consent of PricewaterhouseCoopers LLP,
Independent Auditors.
23.2 Consent of Pillsbury Winthrop LLP
(included in Exhibit 5.1)
II-5
<page>