As filed with the Securities and Exchange Commission on October 3, 1996
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
DIAMOND HOME SERVICES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3886872
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
222 CHURCH STREET, DIAMOND PLAZA
WOODSTOCK, ILLINOIS 60098
(Address of Principal Executive Offices) (Zip Code)
DIAMOND HOME SERVICES, INC.
INCENTIVE STOCK OPTION PLAN
DIAMOND HOME SERVICES, INC.
1996 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of each plan)
ANN CROWLEY PATTERSON (815) 334-1414
VICE PRESIDENT-ADMINISTRATIVE
GENERAL COUNSEL AND SECRETARY (Telephone number,
222 CHURCH STREET, DIAMOND PLAZA including area code,
WOODSTOCK, ILLINOIS 60098 of agent for service)
(Name and address of agent for service)
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED SHARE(1) PRICE(1) REGISTRATION FEE
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Common Stock (par value 670,000 shares(2) $28.56 $19,135,200 $5,799.00
$.001 per share)
(1) Estimated solely for purposes of calculating the amount of the
registration fee pursuant to Rule 457(c) of the Securities Act of
1933, based on the average of the high and low sales prices of a
share of Common Stock of the Registrant on the Nasdaq National
Market on September 27, 1996.
(2) An undetermined number of additional shares may be issued if the
anti-dilution adjustment provisions of the plans become operative.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and Exchange
Commission (the "Commission") by Diamond Home Services, Inc. (the "Company") are
incorporated herein by reference:
(a) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1996.
(b) The Company's prospectus dated September 5, 1996 as filed with the
Commission pursuant to Rule 424(b)(1) under the Company's Registration Statement
No. 333-10973.
(c) The description of the Company's common stock, par value $.001 per
share (the "Common Stock"), contained in the Company's registration statement on
Form 8-A filed under the Securities Exchange Act of 1934 (File No. 000-20829),
including any subsequent amendment or any 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, as amended (the
"Exchange Act"), 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 (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document 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
Incorporated Document 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of directors and officers under certain
circumstances as set forth therein. The Company's Amended and Restated By-Laws
provide that the Company shall indemnify officers and directors to the fullest
extend permitted by law in the manner permissible under the laws of the State of
Delaware. The Company has entered into agreements to indemnify its directors
and certain officers in addition to the indemnification provided for in the
Company's Amended and Restated By-Laws. The Company also maintains liability
insurance for the benefit of its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
Reference is made to the Exhibit Index.
ITEM 9. UNDERTAKINGS.
The 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 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (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.
(4) That, for the purposes of determining any liability under the Act,
each filing of the registrant's annual report pursuant to Section 13(a) or
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.
(5) Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described in Item 6, or otherwise, the registrant has
been advised that in the opinion of the 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 Woodstock, Illinois on September 30, 1996.
DIAMOND HOME SERVICES, INC.
By: /s/ Ann Crowley Patterson
Ann Crowley Patterson
Vice President - Administration
General Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints C. Stephen Clegg, Richard G. Reece and Ann
Crowley Patterson and each of them, his true and lawful attorney-in-fact and
agent, each with full power of substitution and revocation, 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 other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each such
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as such person might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent 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 and the foregoing power of attorney have been signed by
the following persons in the capacities and on the dates indicated:
SIGNATURE TITLE DATE
/s/ C. Stephen Clegg Chairman, Chief September 30, 1996
C. Stephen Clegg Executive Officer
and President
(Principal Executive
Officer)
/s/ Richard G. Reece Chief Financial September 30, 1996
Richard G. Reece Officer (Principal
Financial and
Accounting Officer)
/s/ James F. Bere, Jr. Director September 30, 1996
James F. Bere, Jr.
/s/ Jacob Pollock Director September 30, 1996
Jacob Pollock
/s/ George A.Stinson Director September 30, 1996
George A. Stinson
EXHIBIT INDEX
EXHIBIT DESCRIPTION OF EXHIBIT PAGE
NUMBER NUMBER
4(a) Amended and Restated Certificate of Incorporation of the Company
(Exhibit 3.1 to the Company's Registration Statement on Form S-1
declared effective by the Commission September 4, 1996, File No. 333-
10973, incorporated herein by reference).
4(b) Amended and Restated By-Laws of the Company, as currently in effect
(Exhibit 3.2 to the Company's Registration Statement on Form S-1
declared effective by the Commission September 4, 1996, File No. 333-
10973, incorporated herein by reference).
5 Opinion of McDermott, Will & Emery as to the legality of the
securities being registered.
23(a) Consent of McDermott, Will & Emery (included in its opinion filed as
Exhibit 5).
23(b) Consent of Ernst & Young LLP.
24 Power of Attorney (included with the signature page to this
registration statement).
Exhibit 5
McDermott, Will & Emery
227 West Monroe Street, Suite 3100
Chicago, Illinois 60606-5096
September 30, 1996
Board of Directors
Diamond Home Services, Inc.
222 Church Street
Diamond Plaza
Woodstock, Illinois 60098
RE: Registration Statement on Form S-8 670,000 Common Shares
(par value $.001) to be issued pursuant to Diamond Home
Services, Inc. Incentive Stock Option Plan and 1996
Nonemployee Director Stock Option Plan (collectively, the
"Plans")
Gentlemen:
You have requested our opinion in connection with the above-referenced
Registration Statement on Form S-8 (the "Registration Statement") of Diamond
Home Services, Inc. (the "Company"), to be filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, to register
670,000 shares of the common stock of the Company, $.001 par value (the "Common
Stock"), which may be issued pursuant to the Plans.
We have examined or considered:
1. A copy of the Company's Amended and Restated Certificate of
Incorporation.
2. The Amended and Restated By-Laws of the Company.
3. Telephonic confirmation of the Secretary of State of Delaware, as
of a recent date, as to the good standing of the Company in that state.
4. Copies of resolutions duly adopted by the Board of Directors of
the Company relating to the Plans.
5. Copies of the Plans.
In addition to the examination outlined above, we have conferred with
various officers of the Company and have ascertained or verified, to our
satisfaction, such additional facts as we deemed necessary or appropriate for
the purposes of this opinion. In our examination, we have assumed the
authenticity of all documents submitted to us as originals, the conformity to
the original documents of all documents submitted to us as copies, the
genuineness of all signatures on documents reviewed by us and the legal capacity
of natural persons.
Based on the foregoing, we are of the opinion that all corporate
proceedings necessary for the authorization, issuance and delivery of the Common
Stock under the Plans have been duly taken and upon acquisition pursuant to the
terms of the Plans, the Common Stock will be duly authorized, legally and
validly issued, fully paid and nonassessable.
Members of our firm are admitted to the practice of law in the State of
Illinois and we express no opinion as to the laws of any jurisdiction other than
the laws of the State of Illinois , the General Corporation Law of the State of
Delaware and the laws of the United Stated of America. We hereby consent to the
references to our firm in the Registration Statement and to the filing of this
opinion by the Company as an Exhibit to the Registration Statement. In giving
this consent, we do not hereby admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ McDermott, Will & Emery
McDERMOTT, WILL & EMERY
Exhibit 23(b)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Diamond Home Services, Inc. Incentive Stock Option
Plan and the Diamond Home Services, Inc. 1996 Nonemployee Director Stock Option
Plan of our report dated February 23, 1996 (except as to the first paragraph of
Note 1 for which the date is April 18, 1996 and Note 14 for which the date is
April 8, 1996) with respect to the consolidated financial statements of Diamond
Home Services, Inc. included in Registration Statement (No. 333-10973) on Form
S-1 filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Chicago, Illinois
October 3, 1996
