As filed with the Securities and Exchange Commission on October 13, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
CHARMING SHOPPES, INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 23-1721355
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
450 Winks Lane
Bensalem, Pennsylvania 19020
(Address of principal executive offices) (Zip Code)
CHARMING SHOPPES, INC.
NON-EMPLOYEE DIRECTORS COMPENSATION PROGRAM
CHARMING SHOPPES, INC.
1999 ASSOCIATES' STOCK INCENTIVE PLAN
(Full title of the plans)
COLIN D. STERN, ESQ.
Charming Shoppes, Inc.
450 Winks Lane
Bensalem, Pennsylvania 19020
(Name and address of agent for service)
(215) 245-9100
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered(1) offering price aggregate offering registration
per share (2) price(2) fee(3)
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,150,000 shares $ 5.3125 $6,109,375 $1,802.27
$.10 par value
</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 the
anti-dilution provision of the plans listed above.
(2) Determined solely for the purpose of computing the registration fee
pursuant to Rules 457(c) and (h)(1) based on the average of the high and low
prices of the Registrant's common stock reported in the Nadsaq National Market
on October 11, 1999.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended, as follows: $295 per $1 million of proposed maximum aggregate
offering price.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Omitted as permitted by Form S-8 and Rule 428.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Charming Shoppes, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission"), are
incorporated by reference in this Registration Statement:
1. Annual Report on Form 10-K, for the Fiscal Year Ended January 30, 1999;
2. Quarterly Report on Form 10-Q, for the Quarter Ended May 1, 1999;
3. Quarterly Report on Form 10-Q, for the Quarter Ended July 31, 1999;
4. Current Report on Form 8-K filed April 28, 1999; and
5. The description of the Company's Common Stock contained in the
Registration Statement on Form S-3 filed by the Company with the Commission on
July 1, 1996 (File No. 333-4137), and any description of the Common Stock, and
rights relating thereto, contained in the Registrant's registration statements
relating to the Common Stock or such rights filed with the Commission under the
Securities Exchange Act of 1934, including any amendment or report filed for
the purpose of updating the description.
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, but prior to
the filing of a post-effective amendment to this Registration Statement which
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. 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 the 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.
The consolidated financial statements of the Registrant included
in the Registrant's Annual Report on Form 10-K for the fiscal year ended
January 30, 1999 have been audited by Ernst & Young LLP, independent auditors,
as set forth in their reports thereon included therein and incorporated herein
by reference. Such financial statements are, and audited financial statements
to be included in subsequently filed documents will be, incorporated herein in
reliance upon the reports of Ernst & Young LLP pertaining to such financial
statements (to the extent covered by consents filed with the Securities and
Exchange Commission) given upon the authority of such firm as experts in
accounting and auditing.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered under this Registration
Statement is registered under Section 12(g) of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the shares of Common Stock offered hereby has been
passed upon for the Registrant by Colin D. Stern, Esq., Executive Vice
President, General Counsel and Secretary of the Registrant. As of September
27, 1999, Mr. Stern owned 7,500 shares of the Company's Common Stock and
options to purchase 860,000 additional shares.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 1741 and 1742 of the Pennsylvania Business Corporation
Law of 1988, as amended (the "PBCL"), provide that a business corporation may
indemnify directors and officers against liabilities and expenses they may
incur as such provided that the particular person acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation, and, with respect to any criminal proceeding, had
no reasonable cause to believe his or her conduct was unlawful. In general,
the power to indemnify under these sections does not exist in the case of
actions against a director or officer by or in the right of the corporation if
the person otherwise entitled to indemnification shall have been adjudged to be
liable to the corporation unless it is judicially determined that, despite the
adjudication of liability but in view of all the circumstances of the case, the
person is fairly and reasonably entitled to indemnification for specified
expenses. Section 1743 of the PBCL provides that the corporation is required
to indemnify directors and officers against expenses they may incur in
defending actions against them in such capacities if they are successful on the
merits or otherwise in the defense of such actions.
Section 1713 of the PBCL permits the shareholders to adopt a
bylaw provision relieving a director (but not an officer) of personal liability
for monetary damages except where (i) the director has breached the duties of
his or her office under Chapter 17, Subchapter B of the PBCL ("Subchapter B"),
and (ii) such conduct constitutes self-dealing, willful misconduct or
recklessness. The statute provides that a director may not be relieved of
responsibility under a criminal statute or of liability for the payment of
taxes pursuant to any federal, state or local law.
Section 1746 of the PBCL grants a corporation broad authority to
indemnify its directors and officers for liabilities and expenses incurred in
such capacity, except in circumstances where the act or failure to act giving
rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness.
Section 1747 of the PBCL permits a corporation to purchase and
maintain insurance on behalf of any person who is or was a director or officer
of the corporation, or is or was serving at the request of the corporation as a
representative of another corporation or other enterprise, against any
liability asserted against such person and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify the person against such liability
under Subchapter B.
Section 7.01 of the Bylaws provides that the Company will
identify any person who is a party to or is threatened to be made a party to
any threatened, pending or completed proceeding (including a proceeding by or
in the right of the Registrant) by reason of the fact that such person is or
was a director, officer or employee of the Registrant or, at the request of the
Registrant was serving as a director, officer, partner, fiduciary or trustee of
another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise, to the fullest extent permitted by law, including expenses
(including attorneys' fees), damages, punitive damages, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by such
person unless such act or failure to act is finally determined by a court to
have constituted willful misconduct or recklessness. Section 7.02 of the Bylaws
provides for the advancement of expenses to an indemnified party upon receipt
of an undertaking by the party to repay those amounts if it is ultimately
determined that the indemnified party is not entitled to indemnification.
Section 7.04 of the Bylaws authorizes the Registrant to use any
mechanism or arrangement, as determined by the Board of Directors, to further
effect, satisfy or secure its indemnification obligations, including purchasing
and maintaining insurance, obtaining a letter of credit, creating a reserve,
trust, escrow or other fund or account, entering into indemnification
agreements or granting security interests.
Section 7.05 of the Bylaws provides that the rights of
indemnification under the Bylaws will be deemed a contract between the Company
and each person entitled to indemnification. Section 7.06 of the Bylaws states
that the indemnification authorized by the Bylaws will not be exclusive of any
other rights to which persons seeking indemnification or advancement of
expenses may be entitled.
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 No. Description
- ----------- -----------
5 Opinion of Colin D. Stern, Esq. as to the legality of the shares
being registered.
23.1 Consent of Ernst & Young LLP, independent accountants.
23.2 Consent of Colin D. Stern, Esq. (included in Exhibit 5).
24 Power of Attorney (set forth on the signature page of this
Registration Statement).
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:
(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 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 a 20% 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 (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
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;
(b) The undersigned registrant hereby undertakes that, for purposes of
determining 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 therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 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 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.
<PAGE>
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 City of Bensalem, Commonwealth of
Pennsylvania, this 15th day of September, 1999.
CHARMING SHOPPES, INC.
By: /s/ Dorrit J. Bern
----------------------------------
Dorrit J. Bern
Chairman of the Board, President
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the
undersigned directors and officers of Charming Shoppes, Inc. hereby constitutes
and appoints Dorrit J. Bern and Colin D. Stern, and each of them, his or her
true and lawful attorney-in-fact and agent, for and in his or her name, place
and stead, in any and all capacities, to sign this Registration Statement on
Form S-8 under the Securities Act of 1933, including post-effective amendments
and other related documents, and to file the same with the Securities and
Exchange Commission under said Act, hereby granting power and authority to do
and perform any and all acts and things requisite and necessary to be done in
and about the premises, as fully as to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent 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 date(s) indicated:
<TABLE>
<CAPTION>
Signature Capacity Date
- --------- -------- ----
<S> <C> <C>
/s/Dorrit J. Bern
- ----------------------------- Chairman of the Board, President September 15, 1999
Dorrit J. Bern and Chief Executive Officer
/s/Joseph L. Castle, II
- --------------------------- Director September 15, 1999
Joseph L. Castle, II
/s/Pamela S. Lewis
- --------------------------- Director September 15, 1999
Pamela S. Lewis
/s/Marjorie Margolies-Mezvinsky Director September 15, 1999
- -------------------------------
Marjorie Margolies-Mezvinsky
/s/Kenneth S. Olshan
- --------------------------- Director September 15, 1999
Kenneth S. Olshan
/s/Alan Rosskamm
- --------------------------- Director September 15, 1999
Alan Rosskamm
/s/Marvin L. Slomowitz
- --------------------------- Director September 15, 1999
Marvin L. Slomowitz
/s/Eric M. Specter
- --------------------------- Executive Vice President, Chief September 15, 1999
Eric M. Specter Financial Officer and Treasurer
/s/John J. Sullivan
- - ------------------------ Vice President and Corporate September 15, 1999
John J. Sullivan Controller (Chief Accounting
Officer)
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<S> <C> <C>
Exhibit
Number Description Page
- ------- ----------- ----
5 Opinion of Colin D. Stern, Esq. as to the legality of the shares
being registered.
23.1 Consent of Ernst & Young LLP, independent accountants.
23.2 Consent of Colin D. Stern, Esq. (included in Exhibit 5).
24 Power of Attorney (set forth on the signature page of this
Registration Statement).
</TABLE>
Exhibit 5
October 12, 1999
Charming Shoppes, Inc.
450 Winks Lane
Bensalem, Pennsylvania 19020
Re: Charming Shoppes, Inc. Non-Employee Directors Compensation
Program and 1999 Associates' Stock Incentive Plan
Ladies and Gentlemen:
I have assisted Charming Shoppes, Inc. (the "Company") in the
preparation of the above-referenced Registration Statement on Form S-8 (the
"Registration Statement") for filing with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations promulgated thereunder.
The Registration Statement relates to a total of 1,150,000 shares
(the "Registered Stock") of common stock, par value $0.10 per share (the
"Common Stock"), of the Company, which Registered Stock includes 1,000,000
shares authorized for issuance under the Charming Shoppes, Inc. 1999
Associates' Stock Incentive Plan and 150,000 shares authorized for issuance
under the Charming Shoppes, Inc. Non-Employee Directors Compensation Program
(together, the "Plans"). I have examined copies of the Company's Articles of
Incorporation, as amended, By-Laws, resolutions adopted by the Company's Board
of Directors, the Plans, and such other documents, and have made such
inquiries, as I have deemed appropriate. In my examination, I have assumed the
genuineness of all signatures, the authenticity of all items submitted to me as
originals, and the conformity with originals of all items submitted to me as
copies.
Based upon the foregoing, it is my opinion that the Registered
Stock that may be originally issued pursuant to the Plans, when issued and
delivered in accordance with the Plans and the resolutions authorizing the
Plans, will be legally issued, fully paid and non-assessable shares of Common
Stock of the Company.
I hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement. In giving such consent, do not thereby admit that I
am acting within the category of persons whose consent is required under
Section 7 of the Act or the rules or regulations of the Securities and Exchange
Commission thereunder.
Sincerely,
/s/Colin D. Stern
Colin D. Stern
Executive Vice President, General
Counsel and Secretary
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Incorporation of
Documents by Reference" in the Registration Statement on Form S-8 pertaining to
the Charming Shoppes, Inc. Non-Employee Directors Compensation Program and the
Charming Shoppes, Inc. 1999 Associates' Stock Incentive Plan and to the
incorporation by reference therein of our report dated March 9, 1999, with
respect to the consolidated financial statements of Charming Shoppes, Inc.
included in its Annual Report (Form 10-K) for the year ended January 30, 1999
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Philadelphia, Pennsylvania
October 6, 1999
