Registration No. 333 - _____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ENESCO GROUP, INC.
(Exact name of Registrant as specified in its charter)
Massachusetts 04-1864170
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
225 Windsor Drive, Itasca, Illinois 60143
(Address of Principal Executive Offices) (Zip Code)
STOCK OPTION AWARD, DATED AS OF MARCH 28, 2001, BETWEEN ENESCO GROUP, INC. AND
DANIEL DALLEMOLLE
(Full title of the Plan)
M. FRANCES DURDEN, GENERAL COUNSEL
ENESCO GROUP, INC.
225 WINDSOR DRIVE
ITASCA, ILLINOIS 60143
(Name and address, including zip code of agent for service)
(630) 875-5300
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price per Aggregate Offering Amount of
Registered Registered Share (1) Price(1) Registration Fee
---------- ---------- --------- -------- ----------------
Common Stock, Par Value, 300,000 (2)(3) $ 6.20 $1,860,000 $171.12
$.125 Per Share
(1) Pursuant to Rule 457(h)(1) under the Securities Act of 1933, as amended,
the proposed maximum offering price and the amount of registration fee have
been computed based on $6.20, which is the exercise price for the shares
under the option.
(2) This Registration Statement shall also cover: (i) any additional shares of
common stock which become issuable under any of the plans referred to
herein by reason of any stock dividend, stock split, recapitalization or
other similar transaction effected without the receipt of consideration
which results in an increase in the number of the outstanding shares of
common stock, and (ii) rights to purchase shares of common stock, $0.125
par value, which are attached to and trade with the Common Stock; no
additional consideration will be received by the Registrant for the rights
registered hereby.
(3) Represents the 300,000 shares reserved for issuance pursuant to the Stock
Option Award of Daniel DalleMolle dated March 28, 2001.
PART I
ITEM 1. PLAN INFORMATION
Not required to be filed with this Registration Statement
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed with this Registration Statement
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Enesco Group, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001, filed pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(b) Registrant's quarterly report on Form 10-Q for the fiscal quarter
ended March 31, 2002, filed pursuant to the Exchange Act.
(c) The description of the Registrant's Common Stock contained in its:
(a) Registration Statement on Form 10, dated May 28, 1965, as amended
on Form 8 Amendment No. 1, dated December 9, 1965, and Form 8 Amendment
No. 2, dated September 5, 1986; (b) Registration Statements on Form
8-A, dated September 8, 1986 and October 30, 1987, both as amended on
Form 8 Amendment No. 1, dated May 6, 1988; (c) Registration Statement
on Form 8-A, dated September 9, 1998; and (d) any other registration
statement relating to the Registrant's Common Stock under Section 12 of
the Exchange Act, including any amendments or reports filed for the
purpose of updating the description of such class of securities; and
(d) The description of the Registrant's Rights contained in its (a)
Registration Statement on Form 8-A, dated September 9, 1998; and (b)
any other registration statement relating to the Registrant's Rights
under Section 12 of the Exchange Act, including any amendments or
reports filed for the purpose of updating the description of such class
of securities.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended, after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement indicating that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference into 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 other
subsequently filed document which also is or is 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.
On June 15, 2002, Arthur Andersen LLP ("Arthur Andersen"), the
Registrant's independent public accounting firm for the year ended December 31,
2001, was convicted on federal obstruction of justice charges arising from the
U.S. Government's investigation of Enron Corp. On June 4, 2002, the Registrant
engaged KPMG LLP as its independent public accountants for the fiscal year 2002.
The Registrant has not been able to obtain, after reasonable efforts, the
written consent of Arthur Andersen to its naming in this Registration Statement
as having certified the Registrant's consolidated financial statements for the
year ended December 31, 2001, as required by Section 7 of the Securities Act.
Accordingly, investors will not be able to assert claims against Arthur Andersen
under Section 11 of the Securities Act for any untrue statement of a material
fact contained in the Registrant's consolidated financial statements for the
year ended December 31, 2001 or any omissions to state a material fact required
to be stated therein.
ITEM 4. DESCRIPTION OF SECURITIES.
See Item 3(c) and (d) above.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 13 of Chapter 156B of the Massachusetts General Laws permits
corporations organized under the laws of the Commonwealth of Massachusetts (the
"Commonwealth") to eliminate or limit personal liability of their directors to
the corporation or its stockholders for monetary damages resulting from any
breach of fiduciary duty as a director, except under certain circumstances.
Article 6E of the Registrant's Restated Articles of Organization, as amended,
eliminates the personal liability of directors of the Registrant to the
Registrant or its stockholders for monetary damages to the full extent permitted
under Section 13 of Chapter 156B of the Massachusetts General Laws.
Section 67 of Chapter 156B of the Massachusetts General Laws permits
corporations organized under the laws of the Commonwealth to indemnify
directors, officers, employees and agents under certain circumstances. Article V
of the By-Laws of the Registrant provides for the indemnification of any
director, officer and specified key employees of the Registrant against all
expenses, as defined therein, actually or reasonably incurred by any of them in
connection with any claim asserted against him or her, or in connection with any
action, suit or proceeding, civil or criminal, in which any of them may be
involved as a party, by reason of his or her having been such a director,
officer or specified key employee, provided he or she has acted in good faith in
the reasonable belief that his or her action was in the best interest of the
Registrant. The Registrant has director and officer liability insurance covering
certain expenditures which might arise in connection with such indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits filed as a part of this Report or incorporated herein by
reference are as follows:
Exhibit
No. Exhibit
- -------- -------
4.1 Stock Option Award dated March 28, 2001 between Registrant and Daniel
DalleMolle.*
4.2 Enesco Group, Inc. 1996 Stock Option Plan, as amended and restated
through January 20, 1999 (Incorporated by reference to Exhibit 10(d) to
Form 10-K filed for the period ended December 31, 1998).
5.1 Opinion of M. Frances Durden, General Counsel, regarding the legality
of the securities being registered under this Registration Statement.*
23.1 The Registrant was unable to obtain the consent of Arthur Andersen LLP.
See information above in Part II, Item 3 under the heading
"Incorporation of Documents by Reference".
- ------------------
* Filed Herewith.
ITEM 9. UNDERTAKINGS.
A. (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 "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 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(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) above 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 by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
this post-effective amendment.
(2) That, for the purpose of determining any liability under the 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 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 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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
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 Securities Act
of 1933 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, suite or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, 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 policy as expressed in the Securities Act of
1933 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, on the 27th day of June, 2002.
ENESCO GROUP, INC.
(Registrant)
By: /s/ Daniel DalleMolle
---------------------
Daniel DalleMolle
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below on the 27th day of June, 2002
by the following persons on behalf of the Registrant and in the capacities
indicated.
Signature Title
- --------- -----
/s/ Daniel DalleMolle Director, President and
- --------------------- Chief Executive Officer
Daniel DalleMolle
/s/ John F. Cauley Director
- ---------------------
John F. Cauley
/s/ Anne-Lee Verville Chairman of the Board, Director
- ---------------------
Anne-Lee Verville
/s/ Judith R. Haberkorn Director
- -----------------------
Judith R. Haberkorn
/s/ Donna Brooks Lucas Director
- -----------------------
Donna Brooks Lucas
/s/ Eugene Freedman Director
- -----------------------
Eugene Freedman
/s/ George R. Ditomassi Director
- -----------------------
George R. Ditomassi
/s/ Thane A. Pressman Director
- -----------------------
Thane A. Pressman
/s/ Donald L. Krause Director
- -----------------------
Donald L. Krause
INDEX TO EXHIBITS
Exhibit
No. Exhibit
- ------- -------
4.1 Stock Option Award dated March 28, 2001 between Registrant and Daniel
DalleMolle.*
4.2 Enesco Group, Inc. 1996 Stock Option Plan, as amended and restated
through January 20, 1999 (Incorporated by reference to Exhibit 10(d) to
Form 10-K filed for the period ended December 31, 1998).
5.1 Opinion of M. Frances Durden, General Counsel, regarding the legality
of the securities being registered under this Registration Statement.*
23.1 The Registrant was unable to obtain the consent of Arthur Andersen LLP.
See information in Part II, Item 3 under the heading "Incorporation of
Documents by Reference".
- ------------------
* Filed Herewith.