As filed with the Securities and Exchange Commission on September 13, 2000
Registration No. 333_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMES DEPARTMENT STORES, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 04-2269444
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
2418 MAIN STREET
ROCKY HILL, CT 06067
(860) 257-2000
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
AMES DEPARTMENT STORES, INC.
2000 ASSOCIATE STOCK PURCHASE PLAN
(Full Title of Plan)
DAVID H. LISSY, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
AMES DEPARTMENT STORES, INC.
2418 MAIN STREET
ROCKY HILL, CT 06067
(860) 257-2578
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
JEFFREY J. WEINBERG, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1) Offering Price Aggregate Registration Fee
Per Share(2) Offering Price(2)
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Common Stock, par value $.01 per share 300,000 shares $6.30 $1,890,000 $498.96
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(1) Plus such indeterminate number of shares of Common Stock of the Registrant
as may be issued to prevent dilution resulting from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the Securities
Act of 1933.
(2) Estimated pursuant to Rule 457(h) and Rule 457(c) under the Securities Act
of 1933, based upon the average of the high and low prices of the Registrant's
Common Stock as reported on the National Association of Securities Dealers
Automated Quotation System (NASDAQ) on September 6, 2000.
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NY2:\952590\05\KF0%05!.DOC\15079.0001
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1.
The documents containing the information specified in Part
I of this Registration Statement will be sent or given to employees as specified
by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities
Act"). Such documents are not required to be and are not filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as a prospectus or prospectus supplement pursuant to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by Ames
Department Stores, Inc., (the "Company") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended January 29, 2000.
(b) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended April 29, 2000.
(c) The Company's Current Report on Form 8-K filed with the
Commission on May 19, 2000.
(d) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended July 29, 2000.
(e) The description of the Company's Common Stock, par value $.01
per share, contained in the Company's Registration Statement
on Form S-3/A filed with the Commission on April 28, 1999.
All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment to this Registration Statement 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 hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Generally, Section 145 of the General Corporation Law of
the State of Delaware permits a corporation to indemnify certain persons made a
party to an action, by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or enterprise. In the case of an action by or in the right of the
corporation, no indemnification may be made in respect of any matter as to which
that person was adjudged liable for negligence or misconduct in the performance
of that person's duty to the corporation unless the Delaware Court of Chancery
or the court in which the action was brought determines that despite the
adjudication of liability that person is fairly and reasonably entitled to
indemnity for proper expenses. To the extent that any such person has been
successful in the defense of any matter, such person shall be indemnified
against expenses actually and reasonably incurred by him.
Section 3. of Article FIFTH of the Amended and Restated
Certificate of Incorporation of the Company provides that to the fullest extent
permitted by the Delaware General Corporation Law, no director shall be
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personably liable to the Company or any of its stockholders for monetary damages
for breach of fiduciary duty as a director.
Article VIII of the Company's By-Laws provides that each
director and officer of the Company (and his heirs, executors and
administrators) shall be indemnified by the Company against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any action, suit or proceeding to
which he may be made a party by reason of his being or having been a director or
officer of the Company (whether or not he is a director or officer at the time
of incurring such expenses), provided that he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The Company shall not,
however, indemnify such director or officer in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Company unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
The Company's By-Laws provide that the respective rights of
indemnification shall not be exclusive of other rights to which any director or
officer may be entitled under any law, By-Law, agreement, contract, vote of
stockholders or disinterested directors or pursuant to the direction of any
court of competent jurisdiction or otherwise.
Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers or persons
controlling the Company as disclosed above, the Company has been informed that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4(a) - Amended and Restated Certificate of Incorporation of
the Company (incorporated by reference to the
Company's definitive Proxy Statement filed with the
Commission on April 8, 1996).
4(b) - Amended and Restated By-Laws of the Company
(incorporated by reference to the Company's quarterly
report on Form 10-Q for the quarterly period ended
July 31, 1999).
5 - Opinion of Weil, Gotshal & Manges LLP.
23(a) - Consent of Arthur Andersen LLP.
23(b) - Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5).
24 - Power of Attorney (included as part of the signature
pages to this Registration Statement and incorporated
herein by reference).
99 - Ames Department Stores, Inc. 2000 Associate Stock
Purchase Plan (incorporated by reference to the
Company's definitive Proxy Statement filed with the
Commission on May 18, 2000).
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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
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 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 information required to be included in a post-effective
amendment by the foregoing paragraphs is contained in periodic
reports filed by the Company pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference 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 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 Securities and Exchange
Commission such indemnification is against public policy as
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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 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.
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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 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 Town of Rocky Hill, State of Connecticut on this 13th day
of September, 2000.
AMES DEPARTMENT STORES, INC.
By: /s/ Joseph R. Ettore
----------------------------------------
Name: Joseph R. Ettore
Title: Chairman of the Board and
Chief Executive Officer
By: /s/ Denis T. Lemire
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Name: Denis T. Lemire
Title: President and
Chief Operating Officer
By: /s/ Rolando de Aguiar
----------------------------------------
Name: Rolando de Aguiar
Title: Senior Executive Vice President
and Chief Financial and
Administrative Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Joseph R. Ettore and Rolando de
Aguiar, acting individually, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all 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 agent full power and
authority to do and perform each and every act and thing requisite and 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 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 date indicated.
Signature Title Date
--------- ----- ----
/s/ Joseph R. Ettore Chairman of the Board September 13, 2000
- -------------------------------- and Chief Executive Officer
Joseph R. Ettore
/s/ Denis T. Lemire President and September 13, 2000
- -------------------------------- Chief Operating Officer
Denis T. Lemire
/s/ Rolando de Aguiar Senior Executive Vice President September 13, 2000
- -------------------------------- and Chief Financial and
Rolando de Aguiar Administrative Officer
/s/ Paul M. Buxbaum Director September 13, 2000
- --------------------------------
Paul M. Buxbaum
/s/ Francis X. Basile Director September 13, 2000
- --------------------------------
Francis X. Basile
/s/ Alan Cohen Director September 13, 2000
- --------------------------------
Alan Cohen
/s/ Richard M. Felner Director September 13, 2000
- --------------------------------
Richard M. Felner
/s/ Sidney S. Pearlman Director September 13, 2000
- --------------------------------
Sidney S. Pearlman
/s/ Joseph A. Pollicino Director September 13, 2000
- --------------------------------
Joseph A. Pollicino
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4(a) - Amended and Restated Certificate of Incorporation of the
Company, as amended (incorporated by reference to the
Company's definitive Proxy Statement filed with the Commission
on April 8, 1996).
4(b) - Amended and Restated By-Laws of the Company (incorporated by
reference to the Company's quarterly report on Form 10-Q for
the Quarterly Period ended July 31, 1999).
5 - Opinion of Weil, Gotshal & Manges LLP.
23(a) - Consent of Arthur Andersen LLP.
23(b) - Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).
24 - Power of Attorney (included as part of the signature page to
this Registration Statement and incorporated herein by
reference).
99 - Ames Department Stores, Inc. 2000 Associate Stock Purchase
Plan (incorporated by reference to the Company's definitive
Proxy Statement filed with the Commission on May 18, 2000).
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