As filed with the Securities and Exchange Commission on September 10, 1999
Registration No. 333-53605
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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DISPATCH MANAGEMENT SERVICES CORP.
(Exact name of registrant as specified in its charter)
Delaware 13-3967426
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1981 Marcus Avenue
Suite C131
Lake Success, New York 10042
(Address of principal executive offices) (Zip Code)
Dispatch Management Services Corp. 1997 Stock Incentive Plan, as amended
(Full title of the plan)
H. Steve Swink
Chairman of the Board and Chief Executive Officer
DISPATCH MANAGEMENT SERVICES CORP.
1981 Marcus Avenue, Suite C131
Lake Success, New York 10042
(Name and address of agent for service)
516/326-9810
(Telephone number, including area code, of agent for service)
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Copy of all communications to:
Linda L. Griggs, Esq.
Morgan, Lewis & Bockius LLP
1800 M Street, N.W.
Washington, DC 20036
202/467-7000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered (1) offering price per Share (2) aggregate offering price registration fee
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share.......... 2,000,000 $2.125 $4,250,000 $1,181.50
=======================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a), the number of shares being registered shall be
adjusted to include any additional shares which may become issuable as a
result of stock splits, stock dividends, or similar transactions in
accordance with anti-dilution provisions of the 1997 Stock Incentive Plan,
as amended.
(2) Calculated pursuant to Rule 457(c) and (h), based upon the average of the
reported high and low sales prices for the Common Stock as reported on the
Nasdaq National Market for September 7, 1999.
<PAGE>
EXPLANATORY NOTE
This Registration Statement on Form S-8 relates to 2,000,000 shares of
Common Stock which may be offered and sold under the Dispatch Management
Services Corp. 1997 Stock Incentive Plan, as amended (the "Plan"). Pursuant to
Rule 416(a), the number of shares of Common Stock being registered shall be
adjusted to include any additional shares which may become issuable as a result
of stock splits, stock dividends, or similar transactions in accordance with the
anti-dilution provisions of the Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the Explanatory
Note to Part I of Form S-8.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are incorporated by reference in this
Registration Statement:
1. The description of the Company's Common Stock under the caption
"Description of Registrant's Securities to be Registered" in the
Company's Form 8-A dated November 10, 1997 and the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1997,
which contains, as Exhibit 3.1, the Company's Certificate of
Incorporation, as amended.
2. The Company's Annual Report on Form 10-K for the year ended December
31, 1998.
3. The Company's Quarterly Report on Form 10-Q for the three month
periods ended March 31, 1999 and June 30, 1999.
4. The Company's Current Report on Form 8-K dated July 26, 1999.
All reports and other documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
after the date of this Registration Statement, and prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
securities offered by this Registration Statement have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be part hereof
from the date of filing of such documents. Each document incorporated by
reference into this Registration Statement shall be deemed to be a part of this
Registration Statement from the date of the filing of such document with the
Commission until the information contained therein is superseded or updated by
any subsequently filed document which is incorporated by reference into this
Registration Statement.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
that is also 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 superseded, to constitute a part hereof.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
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<PAGE>
Subsection (a) of Section 145 of the General Corporation Law of the State
of Delaware (the "DGCL") empowers a corporation to indemnify any person who was
or is a party or is threatened to be made a party to 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 corporation) by
reason of the fact that the 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, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person 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 the
person's conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor 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, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of Section
145, or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith; that indemnification provided
for by Section 145 shall not be deemed exclusive of any other rights to which
the indemnified party may be entitled; that indemnification provided for by
Section 145 shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of such person's heirs, executors and
administrators; and empowers the corporation to purchase and maintain insurance
on behalf of any person who is or was a director or officer of the corporation
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the corporation would have the power to indemnify such person against such
liabilities under Section 145.
Section 102(b)(7) of the DGCL provides that a certificate of incorporation
may contain a provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director provided that such provision shall not eliminate
or limit the liability of a director: (i) for any breach of the director's duty
of loyalty to the corporation 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; or (iv) for any transaction from
which the director derived an improper personal benefit.
Article Eighth of the Company's Certificate of Incorporation, as amended,
states that:
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<PAGE>
No director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty
of loyalty to the Corporation 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 Delaware General
Corporation Law or (iv) for any transaction from which the director
derived an improper personal benefit.
Article Ninth of the Company's Certificate of Incorporation, as amended,
states that:
The Corporation shall, to the fullest extent permitted by Section 145 of
the General Corporation Law of the State of Delaware, as amended from time
to time, indemnify the Directors and officers of the Corporation and
advance expenses incurred by such Directors and officers in proceedings to
which they may be party as a result of their status as Directors and
officers. The Corporation may, in its discretion, indemnify other persons
from time to time on terms and conditions deemed appropriate by the
Corporation's Board of Directors.
In addition, Article VIII of the Company's Bylaws further provides that
the Company shall indemnify its officers and directors against any expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative brought by any party,
the Company or on behalf of the Company by reason of the fact that they are an
officer or director of the Company, or serving at the request of the Company as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise. Such expenses may be advanced by the
Company upon receipt of an undertaking by the officer or director to repay such
amount if it is determined that they are not entitled to indemnification. The
Company will continue to provide such indemnification to any person who has
ceased to be an officer or director of the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed herewith or incorporated by reference as
part of this Registration Statement:
Exhibit
Number Exhibit
- -------- -------
5.1 Opinion of Morgan, Lewis & Bockius LLP as to the legality of the
shares being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Morgan, Lewis & Bockius LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
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<PAGE>
(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 this Registration Statement (or the most recent
post-effective amendment to the Registration Statement) 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; and
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 Exchange Act 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.
(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.
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
Exchange Act that is incorporated by reference in this 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.
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 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 persons 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this registration statement on Form S-8 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Lake
Success, New York, on September 10, 1999.
DISPATCH MANAGEMENT SERVICES CORP.
By: /s/ H. Steve Swink
------------------------------------------
H. Steve Swink
Chairman of the Board and Chief Executive
Officer
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.
Each person whose signature appears below hereby appoints H. Steve Swink
and Marko Bogoievski, and both of them, either of whom may act without the
joinder of the other, as his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, 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 any registration
statements for the same offering filed pursuant to Rule 462 under the Securities
Act of 1933, and to file the same, with all exhibits thereto and all other
documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to perform each and every
act and thing appropriate or necessary to be done, as full and for 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 their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ H. Steve Swink Chairman of the Board and Chief
- ----------------------- Executive Officer (Principal
H. Steve Swink Executive Officer) September 10, 1999
/s/ Marko Bogoievski Chief Financial Officer (Principal
- ----------------------- Financial and Accounting Officer) September 10, 1999
Marko Bogoievski
/s/ Edward N. Allen Director
- -----------------------
Edward N. Allen September 10, 1999
/s/ D. Keith Cobb Director
- -----------------------
D. Keith Cobb September 10, 1999
/s/ Michael Fiorito Director September 10, 1999
- -----------------------
Michael Fiorito
/s/ Thomas J. Saporito Director September 10, 1999
- -----------------------
Thomas J. Saporito
/s/ Anne T. Smyth Director September 10, 1999
- -----------------------
Anne T. Smyth
II-5
Exhibit 5.1
September 10, 1999
Dispatch Management Services Corp.
1981 Marcus Ave., Suite C131
Lake Success, New York 10042
Re: Registration Statement on Form S-8:
Dispatch Management Services Corp. 1997 Stock Incentive Plan
Ladies and Gentlemen:
We have acted as counsel to Dispatch Management Services Corp., a Delaware
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8, including the exhibits thereto (the
"Registration Statement"), to be filed under the Securities Act of 1933, as
amended (the "Act"), for the registration of 2,000,000 shares (the "Shares") of
common stock, par value $.01 per share, to be offered and sold pursuant to the
Dispatch Management Services Corp. 1997 Stock Incentive Plan, as amended (the
"Plan").
In connection with this opinion, we have examined the Registration Statement,
the Certificate of Incorporation, as amended, the Amended and Restated Bylaws of
the Company, certain of the Company's corporate proceedings as reflected in its
minute books and such other records as we have deemed relevant. In our
examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
with the originals of all documents submitted to us as copies. In addition, we
have made such other examinations of law and fact as we have deemed appropriate
in order to form a basis for the opinion hereinafter expressed.
For purposes of this opinion, we have assumed that the grant of stock options
under the Plan shall have been duly authorized by all necessary corporate action
as of the date of grant. In addition, we have assumed that the Shares will be
issued in accordance with the terms of the Plan, and the certificates evidencing
the same will be duly delivered against receipt of the consideration stipulated
therefor which will be in an amount no less than the par value of the Shares.
Based upon the foregoing, we are of the opinion that the Shares, when issued and
paid for in accordance with the foregoing assumptions, will be validly issued,
fully paid and non-assessable.
The opinion set forth above is limited to the Delaware General Corporation Law,
as amended.
<PAGE>
Dispatch Management Services Corp.
September 10, 1999
Page 2
We consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving this opinion and consent, we do not admit that we are
acting within the category of persons whose consent is required under Section 7
of the Act.
Very truly yours,
/s/ Morgan, Lewis & Bockius LLP
Morgan, Lewis & Bockius LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 31, 1999 except as to note 8
which is as of April 9, 1999 relating to the consolidated financial statements
and financial statement schedule, which appears in Dispatch Management Services
Corp. Annual Report on Form 10-K for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
New York, New York
September 7, 1999
