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Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DM Management Company
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(Exact name of issuer as specified in its charter)
Delaware 04-2973769
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
25 Recreation Park Drive, Hingham, Massachusetts 02043
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(Address of principal executive offices) (Zip Code)
DM MANAGEMENT COMPANY
1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Gordon R. Cooke
President, Chief Executive Officer and Chairman of the Board of Directors
DM Management Company
25 Recreation Park Drive
Hingham, Massachusetts 02043
(781) 740-2718
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(Name and address, including zip code, and
telephone number, including area code, of agent for service)
WITH A COPY TO:
Peter M. Rosenblum, Esquire
David R. Pierson, Esquire
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
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CALCULATION OF REGISTRATION FEE
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Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Per Share Price Fee
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Common Stock 100,000 $28.625(1) $2,862,500(1) $844.44(1)
(par value $0.01) shares
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(1) Estimated pursuant to Rule 457 (c) and (h) based on the average of
the high and low prices of the Common Stock as reported on the National
Association of Securities Dealers Automated Quotation National Market System on
May 27, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated in this Registration Statement by
reference:
(a) the Company's Annual Report on Form 10-K for the year ended
December 27, 1997; and
(b) the description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on September 27,
1993 under Section 12 of the Securities Exchange Act of 1934, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities registered hereby is being passed upon
for the Company by Foley, Hoag & Eliot LLP, Boston, Massachusetts. David R.
Pierson, a partner at Foley, Hoag & Eliot LLP, is Secretary of the Company.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article SIXTH of the Company's Certificate of Incorporation provides
that the Company shall indemnify each person who at any time is, or shall have
been, a director or officer of the Company, and is threatened to be or is made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is, or was, a director or officer of the Company, or served at the
request of the Company as a director, officer, employee, trustee, or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement incurred in connection with any such action, suit or proceeding to
the maximum extent permitted by the Delaware General Corporation Law. Article
SIXTH further provides that the foregoing right of indemnification is not
exclusive of any other rights of indemnification. Section 10 of the Company's
By-Laws provides that the Company shall indemnify its officers and directors to
the full extent the Company is permitted to do so by the Delaware General
Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law gives a
Delaware corporation the power to adopt a charter provision eliminating or
limiting the personal liability of directors to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as directors,
provided that such provision may not eliminate or limit the liability of
directors for (i) any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) any
payment of a dividend or approval of a stock purchase or redemption that is
unlawful under Section 174 of the Delaware Corporation Law or (iv) any
transaction from which the director derived an improper personal benefit.
Article EIGHTH of the Company's Certificate of Incorporation provides that to
the maximum extent permitted by the Delaware General Corporation Law, no
director of the Company shall be personally liable to the Company or to any of
its stockholders for monetary damages arising out of such director's breach of
fiduciary duty as a director of the Company. No amendment to or repeal of the
provisions of Article EIGHTH shall apply to or have any effect on the liability
or the alleged liability of any director of the Company with respect to any act
or failure to act of such director occurring prior to such amendment or repeal.
A principal effect of such Article EIGHTH is to limit or eliminate the potential
liability of the Company's directors for monetary damages arising from breaches
of their duty of care, unless the breach involves one of the four exceptions
described in (i) through (iv) above. Article EIGHTH does not prevent
stockholders from obtaining injunctive or other
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equitable relief against directors, nor does it shield directors from liability
under federal or state securities laws.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Section 145 of the Delaware General Corporation Law also affords a
Delaware corporation the power to obtain insurance on behalf of its directors
and officers against liabilities incurred by them in such capacities. The
Company has procured a directors' and officers' liability and company
reimbursement liability insurance policy that (a) insures directors and officers
of the Company against losses (above a deductible amount) arising from certain
claims made against them by reason of certain acts done or attempted by such
directors or officers and (b) insures the Company against losses (above a
deductible amount) arising from any such claims, but only if the Company is
required or permitted to indemnify such directors or officers for such losses
under statutory or common law or under provisions of the Company's Certificate
of Incorporation or By-Laws.
Under the Underwriting Agreement among the Company and certain
underwriters (the "Underwriters") represented by Wessels, Arnold & Henderson,
L.L.C. and Montgomery Securities, filed as Exhibit 1.1 to the Company's
Registration Statement on Form S-2, Registration No. 333-35267, the Underwriters
are obligated, under certain circumstances, to indemnify directors and officers
of the Company against certain liabilities, including liabilities under the
Securities Act. In addition, Section 10(b) of the Ninth Amended and Restated
Registration Rights Agreement among the Company and certain of its stockholders,
filed as Exhibit 10.4 to the Company's Registration Statement on Form S-1,
Registration No. 33-67512, requires such stockholders under certain
circumstances to indemnify the directors and officers of the Company against
certain liabilities, including liabilities under the Securities Act.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation of the Company (included as
Exhibit 4.2 to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 25, 1993, File No. 0-22480, and incorporated
herein by reference).
4.2 By-Laws of the Company, as amended (included as Exhibit 3.2 to the
Company's Current Report on Form 8-K dated January 14, 1997, File No.
0-22480, and incorporated herein by reference).
4.3 1998 Employee Stock Purchase Plan.
5.1 Opinion of Counsel.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (contained on the signature page).
ITEM 9. UNDERTAKINGS.
1. 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 (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 the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
2. The undersigned Registrant hereby undertakes:
(a) 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
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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;
(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 2(a)(1)(i) and 2(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 that are
incorporated by reference herein.
(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
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(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.
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
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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 Town of Hingham, Massachusetts, on this 28th of May, 1998.
DM MANAGEMENT COMPANY
By: /s/ Gordon R. Cooke
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Gordon R. Cooke
President, Chief Executive
Officer and Chairman of
the Board of Directors
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Gordon R. Cooke and Olga L. Conley, and
each of them, his true and lawful attorneys-in-fact and agents with full power
of substitution, for him and in his 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 all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing which
they, or either of them, may deem necessary or advisable to be done in
connection with this Registration Statement, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or any substitute or
substitutes for either or both of them, may lawfully do or cause to be done by
virtue hereof.
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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 dates indicated.
Signature Title Date
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/s/ Gordon R. Cooke President, Chief May 28, 1998
- ---------------------- Executive Officer
Gordon R. Cooke and Chairman of the
Board of Directors
(Principal Executive
Officer)
/s/ Olga L. Conley Vice President of May 28, 1998
- ---------------------- Finance, Chief
Olga L. Conley Financial Officer
and Treasurer
(Principal Financial
and Accounting
Officer)
/s/ William E. Engbers Director May 28, 1998
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William E. Engbers
/s/ Walter J. Levison Director May 28, 1998
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Walter J. Levison
/s/ Thomas J. Litle Director May 28, 1998
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Thomas J. Litle
/s/ Ruth M. Owades Director May 28, 1998
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Ruth M. Owades
/s/ Samuel L. Shanaman Director May 28, 1998
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Samuel L. Shanaman
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EXHIBIT INDEX
Exhibit
No. Description
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4.1 Restated Certificate of Incorporation of the Company (included
as Exhibit 4.2 to the Company's Quarterly Report on Form 10-Q
for the quarter ended September 25, 1993, File No. 0-22480,
and incorporated herein by reference).
4.2 By-Laws of the Company, as amended (included as Exhibit 3.2 to
the Company's Current Report on Form 8-K dated January 14,
1997, File No. 0-22480, and incorporated herein by reference).
4.3 1998 Employee Stock Purchase Plan.
5.1 Opinion of Counsel
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page)