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As filed with the Securities and Exchange Commission on March 24, 1998.
Registration No. 33-____________
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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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DART GROUP CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 53-0242973
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3300 75th Avenue
Landover, Maryland 20785
(301)226-1200
(Address of principal executive offices)
EXECUTIVE NON-QUALIFIED STOCK OPTION PLAN
(Full title of the plan)
The Corporation Trust Company
1209 Orange Street
Wilmington, Delaware 19801
(Name and address of agent for service)
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Telephone number, including area code, of agent for service: (302) 734-7492
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Copy to:
David G. Pommerening
O'MELVENY & MYERS LLP
555 13th Street, N.W.
Washington, D.C. 20004
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per unit price fee
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Common Stock 20,400(1) $51.25(2) $1,045,500.00(2) $590.00(2)
par value $1.00 shares
per share
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(1) Each share is accompanied by a common share purchase right pursuant to
the Registrant's Rights Agreement, dated as of February 17, 1998, with
The Bank of New York, as Rights Agent.
(2) Pursuant to Rule 457(h), the maximum offering price, per share and in
the aggregate, and the registration fee were calculated based upon the
price at which the options may be exercised.
(3) The Exhibit Index included in this Registration Statement is at page
9.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
of Form S-8 (plan information and registrant information) will be sent or given
to option holders as specified by Securities and Exchange Commission Rule
428(b)(1). Such documents need not be filed with the Securities and Exchange
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424. These documents, which include
the statement of availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Dart Group Corporation (the
"Company") filed with the Securities and Exchange Commission are incorporated
herein by reference:
(a) Annual Report on Form 10-K for the Company's fiscal year ended
January 31, 1997; and
(b) Quarterly Report on Form 10-Q for the Company's fiscal quarter
ended April 30, 1997 (amended by Form 10-Q/A of December 18,
1997), Quarterly Report on Form 10-Q for the Company's fiscal
quarter ended July 31, 1997 (amended by Form 10-Q/A of
December 18, 1997), Quarterly Report on Form 10-Q for the
Company's fiscal quarter ended October 31, 1997, Extraordinary
Events filed on Form 8-K on the following dates: February 20,
1997, April 21, 1997, April 25, 1997, May 12, 1997, June 27,
1997, August 19, 1997, October 9, 1997, October 24, 1997,
October 31, 1997, December 23, 1997, and February 18, 1998,
and all other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities and Exchange Act of 1934 (the
"Exchange Act") since the end of the fiscal year covered by
the Annual Report referred to above.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into the prospectus and to be a part hereof from the
date of filing of such documents. "Any statement contained herein or in a
document, all or a portion of which is 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 amended, to constitute a part of this Registration
Statement."
ITEM 4. DESCRIPTION OF SECURITIES
The Company's Common Stock, par value $1.00 per share (the
"Common Stock"), is registered pursuant to Section 12 of the Exchange Act, and,
therefore, the description of securities is omitted.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 145 of the General Corporation Law of
Delaware, the Company's Bylaws provide for indemnification of directors and
officers (and their legal representatives) of the Company against expenses
(including attorneys' fees) and other amounts paid in settlement actually and
reasonably incurred by them in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Company), in
which any such person was or is, by reason of the fact that he or she (or a
person of whom he or she is the legal representative) is or was a director or
officer of the Company, a party or is threatened to be made a party, if such
person acted in good faith and in a manner such person reasonably believed to
be in or not opposed to the best interest of the Company and, with respect to
any criminal action or proceeding, if such person had no reasonable cause to
believe his conduct was unlawful. In the case of any threatened, pending or
completed action or suit by or in the right of the Company to procure a
judgment in its favor by reason of the fact that a person (or a person of whom
such person is the legal representative) is or was a director or officer of the
Company, or by reason of any action alleged to have been taken or omitted in
such capacity, the Company's Bylaws provide for indemnification of such person
against costs, charges, expenses (including attorneys' fees) actually and
reasonably incurred by him or her on his or her behalf in connection with the
defense or settlement of such action or suit and any appeal therefrom, if he or
she acted in good faith and in a manner he or she reasonably believed to be in,
or not opposed to, the best interests of the Company and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for gross negligence or
misconduct in the performance of his or her duty 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 such liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnification
for such costs, charges and expenses which the Court of Chancery or such other
court shall deem proper. In each case, indemnification shall be made only upon
specific authorization of a majority of disinterested directors, by written
opinion of independent legal counsel or by the shareholders, unless the
director or officer has been successful on the merits or otherwise in defense
of any such action or suit, in which case he or she shall be indemnified
without such authorization. The Company's Bylaws require the Company to pay
the expenses incurred by a director or officer in defending or investigating a
threatened or pending action, suit or proceeding in advance of the final
disposition of such action, suit
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or proceeding upon receipt by the Company of an undertaking by or on behalf of
such director or officer to repay such amount if it is ultimately determined
that he is not entitled to indemnification. The advancement of expenses, as
well as indemnification, pursuant to the Company's Bylaws is not exclusive of
any other rights which those seeking indemnification or advancement of expenses
from the Company may have.
The Company's Certificate of Incorporation eliminates personal
liability of directors to the Company or its shareholders for monetary damages
for breach of fiduciary duty as a director, except for: (i) any breach of the
duty of loyalty to the Company or its shareholders; (ii) acts or omissions not
in good faith or which involve intentional misconduct or knowing violations of
law; (iii) liability under Section 174 of the Delaware General Corporation Law
relating to certain unlawful dividends and stock repurchases; or (iv) any
transaction from which the director derived an improper personal benefit.
Individual indemnification agreements (the "Indemnification
Agreements") have been entered into by the Company with its directors and
officers. The Indemnification Agreements provide for indemnification to the
fullest extent permitted by law and provide contractual assurance to directors
and officers that indemnity and advancement of expenses will be available to
them regardless of any amendment or revocation of the Company's Bylaws.
The Company's Bylaws permit the Company to purchase and
maintain insurance on behalf of any director, officer, employee or agent of the
Company against liability asserted against him or her in any such capacity,
whether or not the Company would have the power to indemnify him against such
liability under the provisions of the Bylaws. However, the Company maintains
liability insurance providing coverage only with respect to claims made against
officers and directors as to which they are entitled to be indemnified by the
Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached 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:
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(i) To include any prospectus
required by Section 10(a)(3) of the Securities Act of
1933 (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; 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) do not apply if 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 (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; and
(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 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.
(h) 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 provisions described in Item 6 above, or
otherwise, the
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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 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 City of Landover, State of Maryland, on March 24, 1998.
By: /s/ RICHARD B. STONE
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Richard B. Stone
Its: Chairman and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and
appoints Senator Richard B. Stone and Mark A. Flint his or her true and lawful
attorneys-in-fact and agents, each acting alone, with full powers 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, 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, each acting alone, 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 or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, 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 below by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ RICHARD B. STONE Chairman, Chief Executive 3/23/98
- --------------------- Officer and Director
Richard B. Stone (Principal Executive Officer)
/s/ MARK A. FLINT Chief Financial Officer 3/23/98
- --------------------- (Principal Financial Officer)
Mark A. Flint
/s/ RONALD RICE Controller 3/23/98
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Ronald Rice (Principal Accounting Officer
or Controller)
/s/ HOWARD M. METZENBAUM Director 3/23/98
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Howard M. Metzenbaum*
/s/ HARRY M. LINOWES Director 3/24/98
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Harry M. Linowes*
*Also a member of the Compensation Committee.
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EXHIBIT INDEX
Exhibit Sequentially
Number Description Numbered Page
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4.1 Dart Drug Corporation Executive
Non-Qualified Stock Option Plan
(as of September 1983)
5.1 Opinion of O'Melveny & Myers LLP
(opinion re legality).
23.1 Consent of Independent Accountants.
23.2 Consent of O'Melveny & Myers LLP
(included in Exhibit 5).
24.1 Power of Attorney (included in this
Registration Statement under "Signatures").