As filed with Securities and Exchange Commission on July 21, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CROWLEY, MILNER AND COMPANY
(Exact name of registrant as specified in its charter)
MICHIGAN 38-045910
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2301 W. Lafayette
Detroit, Michigan 48216-1891
(Address of principal executive offices, including zip code)
SECOND AMENDED AND RESTATED
CROWLEY, MILNER AND COMPANY
PROFIT SHARING PLAN
(Full title of the Plan)
Mark A. VandenBerg
Vice President-Finance, Treasurer and Secretary
2301 W. Lafayette
Detroit, Michigan 48216-1891
(313) 962-2400
(Name, address and telephone number,
including area code, of agent for service)
Copies to:
J. Michael Bernard
Dykema Gossett PLLC
400 Renaissance Center
Detroit, Michigan 48243
CALCULATION OF REGISTRATION FEE
Title of Proposed Maximum Proposed Maximum Amount of
Securities to Amount to be Offering Aggregate Registration
be Registered Registered Price Per Share* Offering Price* Fee
Common Stock 100,000 shares $4.38 $438,000 $151.03
* The price shown is the average of the high and low sale prices of the
Common Stock on the American Stock Exchange on July 14, 1995, in
accordance with Rule 457(h).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Crowley, Milner and Company (the
"Company") with the Securities and Exchange Commission ("SEC") are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
January 28, 1995;
(b) Quarterly Report on Form 10-Q for the quarter ended April 29,
1995;
(c) Description of the Company's Common Stock contained in the
Company's Registration Statement on Form 10, filed on May 29,
1935, as amended.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
hereof and prior to the filing of a post-effective amendment which indicates
that all securities being offered have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by
reference and to be a part hereof from the date of filing of each such
document.
Item 4. DESCRIPTION OF SECURITIES
The Common Stock to be offered is registered under Section 12 of the
Securities Exchange Act.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 561 through 571 of the Michigan Business Corporation Act (the
"MBCA") govern the indemnification of officers, directors and other persons.
In this regard, the MBCA provides for indemnification of directors and
officers acting in good faith and in a manner they reasonably believe to be
in, or not opposed to, the best interest of the Company or its shareholders
(and, with respect to a criminal proceeding, if they have no reasonable cause
to believe their conduct to be unlawful). Such indemnification may be made
against (a) expenses (including attorney's fees), judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred in connection
with any threatened, pending or completed action, suit or proceeding (other
than an action by, or in the right of, the Company) arising by reason of the
fact that they were serving as a director, officer, employee or agent of
the Company (or some other entity at the Company's request), and (b) expenses
(including attorney's fees) and amounts paid in settlement actually and
reasonably incurred in connection with a threatened, pending or completed
action or suit by, or in the right of, the Company, unless the director or
officer is found liable to the Company and an appropriate court does not
determine that he or she is nevertheless fairly and reasonably entitled to
indemnification. The MBCA requires indemnification for expenses to the extent
that a director or officer is successful in defending against any such action,
suit or proceeding, and otherwise requires in general that the indemnification
provided for in (a) and (b) above be made only on a determination by a
majority vote of a quorum of the Board of Directors comprised of members who
were not parties to or threatened to be made parties to such action. In
certain circumstances, the MBCA further permits advances to cover such
expenses before a final determination that indemnification is permissible,
upon receipt of (i) a written affirmation by the director or officer of his or
her good faith belief that he or she has met the applicable standard of
conduct set forth in the MBCA, and (ii) a written undertaking by or on behalf
of the director or officer to repay such amounts unless it shall ultimately be
determined that he or she is entitled to indemnification and a determination
that the facts then known to those making the advance would not preclude
indemnification. The Company's articles of incorporation provide the same
indemnification rights as the MBCA.
Subject to the exceptions recited in the following sentence, the
Company's articles of incorporation provide that no director shall be
personally liable to the Company or its shareholders for damages for breach of
his or her duty as a director. Such exculpatory language does not, however,
eliminate or limit the liability of a director for (a) breach of the duty of
loyalty, (b) acts or omissions that are not in good faith or involve
intentional misconduct or a knowing violation of law, (c) certain other
violations of the Michigan Business Corporation Act, or (d) responsibility in
respect of any transaction from which the director has derived an improper
personal benefit.
The MBCA permits the Company to purchase insurance on behalf of its
directors and officers against liabilities arising out of their positions with
the Company, whether or not such liabilities would be within the
indemnification provisions of the MBCA. Under an insurance policy maintained
by the Company, the directors and officers of the Company are insured, within
the limits and subject to the limitations of the policy, against certain
expenses in connection with the defense of certain claims, actions, suits or
proceedings, and certain liabilities which might be imposed as a result of
such claims, actions, suits or proceedings, which may be brought against them
by reason of being or having served as directors and officers of the Company
or certain other entities.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
The following exhibits are filed with this registration statement:
4.1 Second Amended and Restated Crowley, Milner and Company Profit Sharing
Plan, dated September 20, 1994, and the First Amendment thereto, dated
June 14, 1995.
5 Opinion of Dykema Gossett PLLC with respect to the legality of the
Common Stock to be registered hereunder.
23.1 Consent of Ernst & Young LLP, independent accountants.
23.2 Consent of Dykema Gossett PLLC (contained in Exhibit 5 hereto).
24 Power of Attorney (contained on signature page).
Item 9. UNDERTAKINGS
(1) The undersigned registrant hereby undertakes (a) 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, (b) that, for the 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, and (c) 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.
(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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.
(3) 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
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 Detroit, State of Michigan on July
19, 1995.
CROWLEY, MILNER AND COMPANY
By: /S/ DENNIS P. CALLAHAN
Dennis P. Callahan
President (Principal Executive
Officer)
Each person whose signature appears below constitutes and appoints Mark
A. VandenBerg, his attorney-in-fact, each with power of substitution, for him,
in any and all capacities, to sign any amendments to this registration
statement (including post-effective amendments) and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each such attorney-in-fact or his substitute may 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 below by the following persons in the
indicated capacities as of July 19, 1995.
Signature Title
/S/ DENNIS P. CALLAHAN Director, President and Chief
Dennis P. Callahan Executive Officer (Principal Executive Officer)
/S/ MARK A. VANDENBERG Vice President-Finance, Chief
Mark A. VandenBerg Financial Officer, Treasurer and Secretary
(Principal Financial and Accounting
Officer)
/S/ ANDREW J. SOFFEL Director and Chairman of the Board
Andrew J. Soffel
JoAnn S. Cousino Director
/S/ CARROLL E. EBERT Director
Carroll T. Ebert
/S/ ALFRED M. ENTENMAN, JR. Director
Alfred M. Entenman, Jr.
/S/ JOSEPH C. KEYS Director
Joseph C. Keys
/S/ RICHARD S. KEYS Director
Richard S. Keys
/S/ JULIUS L. PALLONE Director
Julius L. Pallone
/S/ PAUL R. RENTENBACH Director
Paul R. Rentenbach
/S/ JAMES L. SCHAYE, JR. Director
James L. Schaye, Jr.
INDEX TO EXHIBITS
Number Description
4.1 Second Amended and Restated Crowley, Milner and Company Profit Sharing
Plan, dated September 20, 1994, and the First Amendment
thereto, dated June 14, 1995
5 Opinion of Dykema Gossett PLLC with respect to the legality of the
Common Stock to be registered hereunder
23.1 Consent of Ernst & Young LLP, independent auditors
23.2 Consent of Dykema Gossett LLP (contained in Exhibit 5 hereto)
24 Power of Attorney (contained on signature page)