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As Filed Electronically with the Securities and Exchange Commission on March 26, 1999
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
HLM DESIGN, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 56-2018819
(State or Other Jurisdiction (I.R.S. Employer
Of Incorporation or Organization) Identification No.)
121 West Trade Street 28202
SUITE 2950 (Zip Code)
CHARLOTTE, NORTH CAROLINA
(Address of Principal Executive Offices)
HLM DESIGN, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plan)
MR. JOSEPH M. HARRIS
PRESIDENT AND CHAIRMAN OF THE BOARD
HLM DESIGN, INC.
121 WEST TRADE STREET
SUITE 2950
CHARLOTTE, NORTH CAROLINA 28202
(704) 358-0779
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
COPIES TO:
GARY C. IVEY, ESQ.
PARKER, POE, ADAMS & BERNSTEIN L.L.P.
2500 CHARLOTTE PLAZA, CHARLOTTE, NORTH CAROLINA 28244
TELEPHONE (704) 372-9000
CALCULATION OF REGISTRATION FEE
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT
SECURITIES TO BE OFFERING PRICE AGGREGATE OF
TO BE REGISTERED PER SHARE(1) OFFERING PRICE REGISTRATION FEE
REGISTERED
Common Stock, par 59,954 shares $4.50 $269,793 $75.00
value $0.001 per share
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 (h) under the Securities Act of 1933, based upon
the average of the bid and ask prices of the Registrant's Common Stock
reported on the Nasdaq SmallCap Market on March 23, 1999, which prices
were $4.50 and $4.50, respectively.
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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 employees
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, as amended (the "Securities
Act").
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means that we can disclose
important information to you by referring to those documents. The information
incorporated by reference is considered to be part of this Registration
Statement, and information that we file later with the Securities and Exchange
Commission will automatically update and supersede this information. HLM Design,
Inc. (the "Company," and sometimes referred to herein as the "Registrant")
incorporates by reference the documents listed below and any future filings made
with the Securities and Exchange Commission under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"):
(i) the Company's Annual Report on Form 10-K for its fiscal year
ended May 1, 1998 (File No. 001-14137);
(ii) the Company's Quarterly Report on Form 10-Q for its fiscal
quarter ended July 31, 1998
(iii) the Company's Quarterly Report on Form 10-Q for its fiscal
quarter ended October 30, 1998;
(iv) the Company's Quarterly Report on Form 10-Q for its fiscal
quarter ended January 29, 1999;
(v) the Company's Current Report on Form 8-K filed on November 16,
1998;
(vi) the Company's Current Report on Form 8-K/A, filed on January 15,
1999, amending its Current Report on Form 8-K filed on November
16, 1998;
(vii) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, as amended, filed
with the SEC pursuant to Section 12 of the Exchange Act.
All documents subsequently filed by the Registrant 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 this Registration Statement 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
Not Applicable
2
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Item 5. Interests on Named Experts and Counsel
Not Applicable
Item 6. Indemnification of Officers and Directors
The Registrant's Bylaws effectively provide that the Registrant shall,
to the full extent permitted by Section 145 of the General Corporation Law of
the State of Delaware, as amended from time to time ("Section 145"), indemnify
all persons whom it may indemnify pursuant thereto. In addition, the
Registrant's Certificate of Incorporation eliminates personal liability of its
directors to the full extent permitted by Section 102(b)(7) of the General
Corporation Law of the State of Delaware, as amended from time to time ("Section
102(b)(7)").
Section 145 permits a corporation to indemnify its directors and
officers against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlements actually and reasonably incurred by them in
connection with any action, suit or proceeding brought by a third party if such
directors or officers acted in good faith and in a manner they 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 reason to believe
their conduct was unlawful. In a derivative action, indemnification may be made
only for expenses actually and reasonably incurred by directors and officers in
connection with the defense or settlement of an action or suit and only with
respect to a matter as to which they shall have acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation, except that no indemnification shall be made if such person
shall have been adjudged liable to the corporation, unless and only to the
extent that the court in which the action or suit was brought shall determine
upon application that the defendant officers or directors are reasonably
entitled to indemnity for such expenses despite such adjudication of liability.
Section 102(b)(7) provides that a corporation may eliminate or limit 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) for willful or negligent conduct
in paying dividends or repurchasing stock out of other than lawfully available
funds, or (iv) for any transaction from which the director derived an improper
personal benefit. No such provision shall eliminate or limit the liability of a
director for any act or omission occurring prior to the date when such provision
becomes effective.
The Company maintains insurance against liabilities under the Securities
Act for the benefit of its officers and directors.
Item 7. Exemption from Registration Claimed
Not Applicable
Item 8. Exhibits
Exhibit Description
Number
4.1* HLM Design, Inc. Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.24 to the
Registration Statement on Form S-1 (Registration No. 333-
40617))
5.1 Opinion of Parker, Poe, Adams & Bernstein L.L.P. regarding
the legality of securities registered
23.1 Consent of Deloitte & Touche LLP
3
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23.2 Consent of Parker, Poe, Adams & Bernstein L.L.P. (included
in Exhibit 5.1 to this Registration Statement)
24 Power of Attorney (included on the signature page to this
Registration Statement)
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* Filed Previously.
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 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, 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.
(4) 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.
(5) 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
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 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.
[Signatures begin on next page]
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act, 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 Charlotte, State of North Carolina, on March 25,
1999.
HLM Design, Inc.
BY:
/s/ VERNON B. BRANNON
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Senior Vice President, Treasurer,
Chief Financial Officer and Director
POWER OF ATTORNEY
We, the undersigned directors and officers of HLM Design, Inc., do
hereby constitute and appoint Messrs. Vernon B. Brannon and Joseph M. Harris,
each with full power of substitution, our true and lawful attorney-in-fact and
agent to do any and all acts and things in our names and in our behalf in our
capacities stated below, which acts and things either of them may deem necessary
or advisable to enable HLM Design, Inc. to comply with the Securities Act, and
any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement, including
specifically, but not limited to, power and authority to sign for any and all of
us in our names, in the capacities stated below, any and all amendments
(including post-effective amendments) hereto and any subsequent registration
statement filed pursuant to Rule 462(b) under the Securities Act of 1933, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission; and we do hereby ratify
and confirm all that they shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
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Signature Title Date
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/S/ JOSEPH M. HARRIS President, Chief Executive Officer (principle executive March 25, 1999
- ----------------------------- officer) and Chairman
Joseph M. Harris
/s/ VERNON B. BRANNON Senior Vice President, Chief Operating Officer (Principle March 25, 1999
- ----------------------------- Financial and Accounting Officer) and Director
Vernon B. Brannon
/S/ CLAY R. CAROLAND III Director March 25, 1999
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Clay R. Caroland III
/S/ D. SHANNON LEROY Director March 25, 1999
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D. Shannon LeRoy
/S/ L. FRED POUNDS Director March 25, 1999
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L. Fred Pounds
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INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
NUMBER -----------
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4.1* HLM Design, Inc. Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.24 to the
Registration Statement on Form S-1 (Registration No. 333-
40617))
5.1 Opinion of Parker, Poe, Adams & Bernstein L.L.P. regarding
the legality of securities registered
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Parker, Poe, Adams & Bernstein L.L.P. (included
in Exhibit 5.1 to this Registration Statement)
24 Power of Attorney (included on the signature page to this
Registration Statement)
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* Filed Previously.
5
EXHIBIT 5.1
On Letterhead of Parker, Poe, Adams & Bernstein L.L.P.
March 25, 1999
Board of Directors
HLM Design, Inc.
121 West Trade Street, Suite 2950
Charlotte, North Carolina
Dear Sirs:
We are acting as counsel to HLM Design, Inc., a Delaware corporation
(the "Company"), in connection with the preparation, execution, filing and
processing with the Securities and Exchange Commission (the "Commission"),
pursuant to the Securities Act of 1933, as amended (the "Act"), of a
Registration Statement on Form S-8 (the "Registration Statement") relating to
the issuance and sale of up to 57,954 shares (the "Shares") of common stock, par
value $.001 per share (the "Common Stock"), reserved for issuance under the
Company's Employee Stock Purchase Plan (the "Plan"). This opinion is furnished
to you for filing with the Commission pursuant to Item 601(b)(5) of Regulation
S-K promulgated under the Act.
In our representation of the Company, we have examined the Registration
Statement, the Plan, and the Company's Amended and Restated Certificate of
Incorporation and Bylaws, each as amended to date, all pertinent actions of the
Company's Board of Directors recorded in the Company's minute book, the form of
certificate evidencing the Shares and such other documents as we have considered
necessary for purposes of rendering the opinions expressed below.
Based upon the foregoing, we are of the following opinion:
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware.
2. The Shares proposed to be offered and sold by the Company under
the Plan have been duly authorized for issuance and, subject to
the Registration Statement becoming effective under the Act and
to compliance with any applicable state securities laws and to
the issuance of such Shares in accordance with the provisions of
the Plan, the Shares will be, when so issued, legally issued,
fully paid and non-assessable shares of Common Stock of the
Company.
The opinions expressed herein are limited to the General Corporation Law
of the State of Delaware and the Act.
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Board of Directors
HLM Design, Inc.
March 25, 1999
Page 2
We hereby consent to the use of this opinion letter as Exhibit 5.1 to
the Registration Statement. In giving this consent, we do not admit that we are
in the category of persons whose consent is required under Section 7 of the Act
or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
Parker, Poe, Adams & Bernstein L.L.P.
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
HLM Design Inc. on Form S-8 of our report dated July 6, 1998 related to HLM
Design Inc. for the period from inception March 6, 1997 (inception) to April 25,
1997 and the year ended May 1, 1998, and of our report dated October 31, 1997
related to Hansen Lind Meyer Inc. for the two years in the period ended April
25, 1997, appearing in the Annual Report on Form 10-K of HLM Design Inc. for the
year ended May 1, 1998.
Also, we consent to the incorporation by reference in this Registration
Statement of HLM Design Inc. on Form S-8 of our report dated September 25, 1998
related to JPJ Architects, Inc. for each of the three years in the period ended
April 30, 1998, appearing in the Form 8-K/A of HLM Design Inc. dated October 30,
1998.
/s/ Deloitte & Touche LLP
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Charlotte, North Carolina
March 25, 1999
