Registration No. 333-_____
As filed with the Securities and Exchange Commission on June 27, 2003
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FRANK'S NURSERY & CRAFTS, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 47-0863558
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
580 KIRTS BLVD., SUITE 300, 48084
TROY, MICHIGAN -----
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(Address of Principal Executive Offices)
FRANK'S NURSERY & CRAFTS, INC. 2002 STOCK OPTION PLAN AND
OPTION AGREEMENT WITH JOSEPH NUSIM
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(Full title of the plan)
ALAN MINKER
SENIOR VICE PRESIDENT
CHIEF FINANCIAL OFFICER AND TREASURER
FRANK'S NURSERY & CRAFTS, INC.
580 KIRTS BLVD., SUITE 300
TROY, MICHIGAN 48084
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(Name and address of agent for service)
(248) 712-7000
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered per share offering price fee
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Common Stock (1) 3,677,174 $1.435(2) $5,276,744.69 $426.89
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(1) $.001 par value per share (the "Common Stock").
(2) Calculated pursuant to Rule 457(h) and (c) solely for the purpose of
computing the registration fee and based on the average bid and asked price
of the Common Stock reported as of June 24, 2003.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference in this
registration statement:
1. Annual Report of Frank's Nursery & Crafts, Inc. (the "Registrant")
on Form 10-K for the fiscal year ended January 26, 2003, filed with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
2. The description of the Registrant's Common Stock included in Item 11
of the Registrant's Registration Statement on Form 10, as amended, filed with
the Commission pursuant to the Securities Act of 1933, as amended (the
"Securities Act").
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange, prior to the filing of a
post-effective amendment 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 part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein by reference modifies or supersedes such prior statement. Any
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.
Under Section 145 of the Delaware General Corporation Law, the
Registrant may indemnify its directors and officers against liabilities they may
incur in such capacities, including liabilities under the Securities Act. The
Registrant's certificate of incorporation requires it to indemnify its directors
and officers to the fullest extent permitted by law and require the Registrant
to advance litigation expenses upon its receipt of an undertaking by the
director or officer to repay such advances if it is ultimately determined that
the director or officer is not entitled to indemnification. The Registrant's
certificate of incorporation further provide that rights conferred under such
certificate do not exclude any other right such persons may have or acquire
under applicable law, the certificate or any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
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The Registrant's certificate of incorporation, as amended, provides
that the Registrant's directors shall not be liable for monetary damages for
breach of the directors' fiduciary duty of care to the Registrant and its
stockholders. This provision in the certificate of incorporation does not
eliminate the duty of care, and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to the
Registrant or its stockholders, for acts or omissions not in good faith or
involving intentional misconduct or knowing violations of law, for actions
leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Section 174 of the Delaware General Corporation Law. The provision also
does not affect a director's responsibilities under any other law, such as the
federal securities laws or state or federal environmental laws.
Under the Registrant's director's and officer's liability insurance
policy, the Registrant's directors and officers are insured against the cost of
defense, settlement or payment of a judgment under circumstances stated in the
policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Certificate of Incorporation (filed as Exhibit 3.1 to
the Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended August 11, 2002) (File No.
033-43504-01)
4.2 Certificate of Merger of FNC Holdings, Inc. and New
Frank's Delaware (filed as Exhibit 3.3 to Amendment
No. 1 to the Registrant's Registration Statement on
Form 10 filed with the Commission on April 3, 2003
pursuant to the Securities Act) (File No. 000-50158)
4.3 Bylaws (filed as Exhibit 3.2 to the Registrant's
Quarterly Report on Form 10-Q for the quarterly
period ended August 11, 2002) (File No. 033-43504-01)
4.4 Frank's Nursery & Crafts, Inc. 2002 Stock Option
Plan, as amended (filed as Exhibit 10.5 to the
Registrant's Annual Report on Form 10-K for the
fiscal year ended January 26, 2003) (File No.
000-50158)
4.5 Option Agreement dated as of December 5, 2002 between
the Registrant and Joseph Nusim
5.1 Opinion of Honigman Miller Schwartz and Cohn LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Grant Thornton LLP
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23.3 Consent of Honigman Miller Schwartz and Cohn LLP
(included in Exhibit 5.1)
24.1 Power of Attorney (included after the signature of
the Registrant contained on page 6 of this
Registration Statement)
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 of 1933;
(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% 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 or Form S-8, 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 Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement.
(2) 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.
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(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 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.
(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,
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 of 1933 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 City of Troy, State of Michigan, on June 27, 2003.
FRANK'S NURSERY & CRAFTS, INC.
By: /s/ Alan Minker
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Alan Minker
Senior Vice President
Chief Financial Officer and Treasurer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned
officers and directors of FRANK'S NURSERY & CRAFTS, INC., a Delaware corporation
(the "Registrant"), hereby constitutes and appoints Bruce Dale and Alan Minker
current and each of them, the true and lawful attorneys-in-fact and agents of
the undersigned, each with the power of substitution for him in any and all
capacities, with full power and authority in said attorneys-in-fact and agents
and in any one or more of them, to sign, execute and affix his seal thereto and
file the proposed registration statement on Form S-8 to be filed by the
Registrant under the Securities Act, which registration statement relates to the
registration and issuance of the Registrant's Common Stock, par value $.001 a
share, pursuant to the Frank's Nursery & Crafts, Inc. 2002 Stock Option Plan,
and any of the documents relating to such registration statement; any and all
amendments to such registration statement, including any amendment thereto
changing the amount of securities for which registration is being sought, and
any post-effective amendment, with all exhibits and any and all documents
required to be filed with respect thereto with any regulatory authority;
granting unto said attorneys, 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
an about the premises in order to effectuate the personally present, hereby
ratifying and confirming all that said attorneys-in-fact and agents, and each of
them, 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
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/s/ Bruce Dale Chief Executive Officer June 27, 2003
- -------------------------------------------- and Director
Bruce Dale (Principal Executive Officer)
/s/ Alan Minker Senior Vice President, Chief June 27, 2003
- -------------------------------------------- Financial Officer and Treasurer
Alan Minker (Principal Financial and
Accounting Officer)
/s/ David M. Samber Chairman of the Board June 27, 2003
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David M. Samber
/s/ Aaron J. Fleishaker Director June 27, 2003
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Aaron J. Fleishaker
/s/ Gerald Hellerman Director June 27, 2003
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Gerald Hellerman
/s/ Joseph Nusim Director June 27, 2003
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Joseph Nusim
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INDEX TO EXHIBITS
Exhibit Number Exhibit
4.1 Certificate of Incorporation (filed as Exhibit 3.1
to the Registrant's Quarterly Report on Form 10-Q
for the quarterly period ended August 11, 2002)
(File No. 033-43504-01)
4.2 Certificate of Merger of FNC Holdings, Inc. and New
Frank's Delaware (filed as Exhibit 3.3 to Amendment
No. 1 to the Registrant's Registration Statement on
Form 10 filed with the Commission on April 3, 2003
pursuant to the Securities Act) (File No. 000-50158)
4.3 Bylaws (filed as Exhibit 3.2 to the Registrant's
Quarterly Report on Form 10-Q for the quarterly
period ended August 11, 2002) (File No.
033-43504-01)
4.4 Frank's Nursery & Crafts, Inc. 2002 Stock Option
Plan, as amended (filed as Exhibit 10.5 to the
Registrant's Annual Report on Form 10-K for the
fiscal year ended January 26, 2003) (File No.
000-50158)
4.5 Option Agreement dated as of December 5, 2002
between the Registrant and Joseph Nusim
5.1 Opinion of Honigman Miller Schwartz and Cohn LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Grant Thornton LLP
23.3 Consent of Honigman Miller Schwartz and Cohn LLP
(included in Exhibit 5.1)
24.1 Power of Attorney (included after the signature of
the Registrant contained on page 6 of this
Registration Statement)
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