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As filed with the Securities and Exchange Commission on February 2, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act Of 1933
FACTORY CARD OUTLET CORP.
(Exact Name of Registrant as Specified in its Charter)
Delaware 36-3652087
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
2727 Diehl Road
Naperville, Illinois 60563
(Address of Principal Executive Offices)
FACTORY CARD OUTLET CORP.
1997 Outside Director Stock Option Plan
(Full Title of the Plan)
Carol A. Travis
Vice President and Secretary
Factory Card Outlet Corp.
2727 Diehl Road
Naperville, Illinois 60563
(630) 579-2000
(Name, Address, and Telephone Number, Including Area Code, of Agent for Service)
With a copy to:
Neal Aizenstein
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606-6404
(312) 876-8000
CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 250,000 shares $ 7.28 (1)(2) $ 1,820,313 (1) $ 537.00 (1)
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(1) Calculated pursuant to Rules 457(h)(1) and 457(c) based on the average of
the high and low prices of the Registrant's common stock on the Nasdaq
National Market on January 30, 1998 as reported by Stock Profiles.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457.
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EXPLANATORY NOTE
As permitted by the rules of the Securities and Exchange Commission (the
"Commission"), this Registration Statement omits the information specified in
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3: INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Factory Card Outlet
Corp. (the "Company") are incorporated by reference in this Registration
Statement on Form S-8 (the "Registration Statement"):
(i) The Company's Annual Report on Form 10-K for the fiscal year ended
June 28, 1997;
(ii) The Company's Current Report on Form 8-K dated August 19, 1997;
(iii) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 27, 1997; and
(iv) The description of the Company's common stock, par value $.01 per
share ("Common Stock"), contained in the Company's Registration Statement on
Form 8-A filed pursuant to Section 12 of the Securities Exchange Act of 1934
(the "Exchange Act"), including any amendment or report filed thereunder
that updates or otherwise modifies such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered
hereunder have been sold or which deregisters all of the securities offered
then remaining unsold, shall be deemed to be incorporated herein by reference
and to be a part hereof from the date of filing of such documents.
ITEM 4: DESCRIPTION OF SECURITIES
Not applicable.
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ITEM 5: INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6: INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL"), inter alia,
empowers a Delaware corporation to indemnify any person who was or is party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he 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, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Similar indemnity is authorized for such persons against expenses (including
attorneys' fees) actually and reasonably incurred in connection with the
defense or settlement of any such threatened, pending or completed action or
suit by or in the right of the corporation if such person 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 provided further that (unless a court of
competent jurisdiction otherwise provides) such person shall not have been
adjudged liable to the corporation. Any such indemnification may be made only
as authorized in each specific case upon a determination by the stockholders or
disinterested directors or by independent legal counsel in a written opinion
that indemnification is proper because the indemnitee has met the applicable
standard of conduct. The Bylaws of the Company provide that directors and
officers shall be indemnified as described above in this paragraph to the
fullest extent permitted by the DGCL; provided, however, that any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person shall be indemnified only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Company.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
enterprise, against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would otherwise have the power to indemnify him under Section 145.
The Company maintains insurance policies insuring the Company's directors and
officers against liability for wrongful acts or omissions arising out of their
positions as directors and officers, subject to certain limitations.
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The Certificate of Incorporation of the Company provides that no director
of the Company shall be personally liable to the Company or its stockholders
for monetary damages for breach of fiduciary duty as a director, except (i) for
a breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL
(relating to the declaration of dividends and purchase or redemption of shares
in violation of the DGCL), or (iv) for any transaction from which the director
derived an improper personal benefit.
ITEM 7: EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8: EXHIBITS
4.1 Restated Certificate of Incorporation (Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (Registration No. 333-13827)).*/
--
4.2 Restated By-laws (Exhibit 3.2 to the Company's Registration
Statement on Form S-1 (Registration No. 333-13827)).*/
--
4.3 Business Loan Agreement dated as of November 1, 1996 between the
Company and Bank One, Chicago, N.A. (Exhibit 10.7(3) to the Company's
Registration Statement on Form S-1 (Registration No. 333-13827)).*/
--
4.4 Loan and Security Agreement dated as of October 15, 1997 among the
Company, Factory Card Outlet of America, Ltd. and Bank One, Illinois
N.A., as agent for the lenders named therein (Exhibit 10.7 to the
Company's Form 10-Q for the fiscal quarter ended September 27, 1997).*/
--
5.1 Opinion of Sonnenschein Nath & Rosenthal.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Sonnenschein Nath & Rosenthal (included in Exhibit 5.1).
24.1 Power of Attorney (see page 7).
__________________________
*/ Incorporated by reference.
- --
ITEM 9: UNDERTAKINGS
Rule 415 Offering.
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The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 ("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;
(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 (i) and (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 Company
with the Commission pursuant to Section 13 or Section 15(d) of 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.
(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.
Incorporation of Subsequent Exchange Act Documents by Reference.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company'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.
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Form S-8 Registration Statement
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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 Company 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 Company
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 Village of Naperville, State of Illinois, on January 30,
1998.
FACTORY CARD OUTLET CORP.
By: /s/ Stewart M. Kasen
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Stewart M. Kasen
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Charles R. Cumello and Carol A. Travis,
and each of them, jointly and severally, his or her attorneys-in-fact, each
with power of substitution and resubstitution, for him or her in any and all
capacities, to sign any amendments to this Registration Statement, to file the
same, with the exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming
all that each of said attorneys-in-fact, or his or her substitute or
substitutes, may 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 dates indicated.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Stewart M. Kasen Chairman of the Board January 30, 1998
- ---------------------- of Directors
Stewart M. Kasen
/s/ Charles R. Cumello President and Director January 30, 1998
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Charles R. Cumello
/s/ Glen J. Franchi Executive Vice President January 30, 1998
- ---------------------- Treasurer (principal
Glen J. Franchi financial and accounting
officer)
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/s/ Michael I. Barach Director January 30, 1998
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Michael I. Barach
/s/ Dr. Robert C. Blattberg Director January 30, 1998
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Dr. Robert C. Blattberg
Director
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Bart A. Brown, Jr.
/s/ Richard A. Doppelt Director January 30, 1998
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Richard A. Doppelt
/s/ J. Bayard Kelly Director January 30, 1998
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J. Bayard Kelly
Director
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James L. Nouss, Jr.
Director
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William E. Freeman
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EXHIBIT 5.1
[SONNENSCHEIN NATH & ROSENTHAL LETTERHEAD]
February 2, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Ladies and Gentlemen:
A Registration Statement on Form S-8 (the "Registration Statement") is
being filed on or about the date of this letter with the Securities and
Exchange Commission to register shares of common stock, par value $.01 per
share (the "Shares"), of Factory Card Outlet Corp. (the "Company") which may
from time to time be offered by the Company in connection with the Factory Card
Outlet Corp. 1997 Outside Director Stock Option Plan (the "Plan"). This
opinion is delivered in accordance with the requirements of Item 601(b)(5) of
Regulation S-K under the Securities Act of 1933, as amended.
We have acted as counsel to the Company in connection with the
Registration Statement. In rendering this opinion, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of the corporate records of the Company, including its Restated
Certificate of Incorporation, its Restated By-Laws and minutes of directors'
and stockholders' meetings, and such other documents (including the Plan) which
we have deemed relevant or necessary as the basis for the opinion as
hereinafter set forth.
We have assumed the legal capacity of all natural persons, the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents. In making our examination of documents executed by
parties other than the Company, we have assumed that such parties had the
power, corporate or otherwise, to enter into and to perform their respective
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or otherwise, and the execution and delivery by
such parties of such documents and the validity and binding effect thereof.
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EXHIBIT 23.1
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
Factory Card Outlet Corp.:
We consent to the incorporation by reference in this registration statement on
Form S-8 of Factory Card Outlet Corp. of our reports dated August 8, 1997
relating to the financial statements and schedule of Factory Card Outlet Corp.
and subsidiary as of June 28, 1997 and June 29, 1996, and for each of the years
in the three-year period ended June 28, 1997, which reports appear in or are
incorporated by reference in the Annual Report on Form 10-K for the fiscal year
ended June 28, 1997, filed by Factory Card Outlet Corp.
KPMG PEAT MARWICK
Chicago, Illinois
January 30, 1998
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