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As filed with the Securities and Exchange Commission on June 14, 1996
Registration No. 33-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
McM Corporation
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(Exact name of registrant as specified in its charter)
North Carolina 56-1171691
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(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
Box 12317, 702 Oberlin Road, Raleigh, North Carolina 27605
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(Address of Principal Executive Offices) (Zip Code)
1996 EMPLOYEE INCENTIVE STOCK OPTION PLAN
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(Full title of the plan)
Michael D. Blinson
Senior Vice President, Corporate Secretary
McM Corporation
702 Oberlin Road
Raleigh, North Carolina 27605
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(Name and address of agent for service)
(919) 833-1600
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Title of Proposed Proposed
Securities Amount Maximum Offering Maximum Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered(1) Share(2) Price(2) Fee
---------- ------------- -------- -------- ---
<S> <C> <C> <C> <C>
Common Stock,
$1.00 par 300,000 $5.8125 $1,743,750 $601.25
value shares
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</TABLE>
(1) Pursuant to Rule 428(b)(1), the documents constituting the Prospectus from
Part I of Form S-8 will be sent or given to participants in the Plan, but not
filed herewith.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c), based on the average of the bid and asked price of
the common stock on June 10, 1996, as reported by NASDAQ.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by McM Corporation (the "Company") with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference in this registration statement:
1. The Company's annual report on Form 10-K for the year ended December
31, 1995, as filed with the Commission.
2. The Company's quarterly report on Form 10-Q for the quarter ended
March 31, 1996, as filed with the Commission.
3. The description of the Company's Common Stock, $1.00 par value
(the "Common Stock"), set forth in Item 14 of the Company's Registration
Statement on Form 10 that was filed with the Commission on April 24, 1978, and
as updated by Item 14 of the Company's annual report on Form 10-K for the year
ended December 31, 1995.
All documents filed by the Company subsequent to those listed above
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 hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Under sections 55-8-51 through 55-8-58 of the General Statutes of North
Carolina, the Company's Restated Articles of Incorporation (the "Articles"),
and the Company's Amended and Restated Bylaws (the "Bylaws"), the Company has
broad powers to indemnify directors and officers against liabilities that they
may incur in such capacities.
Pursuant to the North Carolina General Statutes noted above, Section 9
of the Articles contains the following provision relating to the personal
liability of the Company's directors:
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"No person who is serving or who has served as Director of the
corporation shall be personally liable in any action for monetary damages for
breach of his or her duty as a Director, whether such action is brought by or
in the right of the corporation or otherwise, except for breach of duty for
which personal liability cannot be limited or eliminated under the North
Carolina Business Corporation Act ("NCBCA") or other applicable law. If the
NCBCA or other applicable law is amended after approval by the shareholders of
this Article to authorize corporate action further eliminating or limiting the
personal liability of Directors, then the liability of a Director of the
corporation shall be eliminated or limited to the fullest extent permitted by
the NCBCA or other applicable law as so amended. Any repeal or modification of
this Article by the shareholders of the corporation shall not adversely affect
any right or protection of a Director of the corporation existing at the time
of such repeal or modification."
Pursuant to the North Carolina General Statutes noted above, Article
VIII of the Bylaws provides the following:
"SECTION 1. MANNER OF INDEMNIFICATION
Any person who at any time serves or has
served as a director of the corporation, or who, while serving as a director of
the corporation, serves or has served, at the request of the corporation, as a
director, officer, partner, trustee, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, or as a trustee or
administrator under an employee benefit plan, shall be entitled to
indemnification or reimbursement. The director shall be entitled to
indemnification or reimbursement from the corporation, and the corporation
shall be bound and obligated to provide such indemnification or reimbursement
to the director, to the fullest extent permitted by law, whether or not a
director is "wholly successful" in the defense of any proceeding to which he
was a party because he is or was a director of the corporation.
Indemnification or reimbursement shall be for (a) any expenses, including
attorneys' fees, or any liabilities which he may incur or may have incurred in
connection with any threatened, pending or completed action, suit or proceeding
(and any appeal whether or not brought by or on behalf of the corporation,
seeking to hold him liable by reason of the fact that he is or was acting in
such capacity, and (b) payments made by him in satisfaction of any judgment,
money decree, fine (including an excise tax assessed with respect to an
employee benefit plan), penalty or settlement for which he may have become
liable in any such action, suit or proceeding.
Expenses incurred by a director in defending any such action, suit or
proceeding shall be paid by the corporation in advance of the final disposition
thereof upon receipt of an undertaking by or on behalf of the director to repay
such amount unless it shall
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ultimately be determined that he is entitled to be indemnified by the
corporation against such expenses.
The Board of Directors of the corporation shall take all such action
as may be necessary and appropriate to authorize the corporation to pay the
indemnification or reimbursement required by this bylaw, including, without
limitation, to the extent needed, making a determination that indemnification
is permissible in the circumstances and a good faith evaluation of the manner
in which the claimant for indemnity acted and of the reasonable amount of
indemnity due him. The Board of Directors may appoint a committee or special
counsel to make such determination and evaluation. To the extent needed, the
Board shall give notice to, and obtain approval by, the shareholders of the
corporation for any decision to indemnify.
Any person who at any time after the adoption of this bylaw serves or
has served in the aforesaid capacities for or on behalf of the corporation
shall be deemed to be doing or to have done so in reliance upon, and as
consideration for, the right of indemnification provided herein. Such right
shall inure to the benefit of the legal representatives of any such person and
shall not be exclusive of any other rights to which such person may be entitled
apart from the provision of this bylaw."
The Company maintains directors' and officers' liability insurance
under which the Company's directors and officers are insured against claims for
errors, neglect, breach of duty and other matters.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit 4* Restated Articles of Incorporation of the Corporation. (Filed
as Exhibit 3(a) to the Company's Annual Report on Form 10-K for
the year ended December 31, 1995, as filed with the SEC (File
No. 0-8678) on April 1, 1996.)
Amended Bylaws of the Corporation. (Filed as Exhibit 3(b) to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, as filed with the SEC (File No. 0-8678) on
April 1, 1996.)
Exhibit 5 Opinion of Ragsdale, Liggett & Foley PLLC, corporate counsel to
the Corporation
Exhibit 23(a) Consent of Ragsdale, Liggett & Foley PLLC, (included as part of
Exhibit 5)
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Exhibit 23(b) Consent of Ernst & Young LLP
Exhibit 99* 1996 Employee Incentive Stock Option Plan of the Corporation.
(Filed as Appendix A of the Company's definitive proxy
statement which was filed with the SEC on April 25, 1996.)
* Incorporated herein by reference.
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;
(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)
above 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 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
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registered which remain unsold at the termination of the
offering.
B. 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
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
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 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.
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 Raleigh, State of North Carolina, on May 23,
1996.
McM Corporation
By: /s/ George E. King
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(Registrant)
George E. King
President, Chief Executive Officer
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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:
<TABLE>
<CAPTION>
Principal Executive Officers: Date:
<S> <C>
/s/ George E. King May 23, 1996
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George E. King
President, Chief Executive
Officer and Director
/s/ Stephen L. Stephano May 23, 1996
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Stephen L. Stephano
Executive Vice President,
Chief Operating Officer
and Director
Principal Financial Officer:
/s/ Kevin J. Hamm May 23, 1996
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Kevin J. Hamm
Vice President, Chief
Financial Officer
Directors:
/s/ Michael A. DiGregorio May 23, 1996
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Michael A. DiGregorio
/s/ Laurence F. Lee, Jr. May 23, 1996
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Laurence F. Lee, Jr.
/s/ Laurence F. Lee III May 23, 1996
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Laurence F. Lee III
/s/ Claude G. Sanchez, Jr. May 23, 1996
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Claude G. Sanchez, Jr.
/s/ R. Peyton Woodson III May 23, 1996
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R. Peyton Woodson III
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Exhibit Page
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<S> <C> <C>
Exhibit 4 Restated Articles of Incorporation *
Amended Bylaws *
Exhibit 5 Opinion of Ragsdale, Liggett & Foley PLLC 9
Exhibit 23(a) Consent of Ragsdale, Liggett & Foley PLLC 9
Exhibit 23(b) Consent of Ernst & Young LLP 11
Exhibit 99 1996 Employee Incentive Stock Option Plan *
</TABLE>
* Incorporated by reference as noted in Item 8 of this statement.
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RAGSDALE, LIGGETT & FOLEY
PROFESSIONAL LIMITED LIABILITY COMPANY
LAWYERS
<TABLE>
<CAPTION>
<S> <C> <C>
POST OFFICE BOX 31507 CROSS POINTE PLAZA FACSIMILE: (919) 783-8991
RALEIGH, NC 27622-1507 2840 PLAZA PLACE TELEPHONE: (919) 787-5200
RALEIGH, NORTH CAROLINA 27612
</TABLE>
June 11, 1996
McM Corporation
702 Oberlin Road, Suite 300
Raleigh, North Carolina 27605
Re: Legal Opinion and Legal Consent Exhibit to SEC Form S-8 Registration
Statement
Gentlemen:
We have acted as general counsel to McM Corporation ("McM") in connection
with the preparation and filing of a Securities and Exchange Commission
Registration Statement on Form S-8 (the "Statement"), which Statement registers,
under the Securities Act of 1933, up to 300,000 shares of McM common stock (the
"Shares") to be issued in connection with the 1996 Employee Incentive Stock
Option Plan of McM Corporation (the "Option Plan").
Based solely upon our review of the following:
The Option Plan
McM Articles of Incorporation
McM Bylaws
McM Board of Directors meeting minutes relating to the Option Plan
McM Shareholders meeting minutes relating to the Option Plan
McM Officers', Transfer Agent's and Majority Shareholder's certifications
Applicable federal and state laws and regulations
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McM Corporation
June 11, 1996
Page 2
and provided that:
1. the Share certificates issued or share ledger entries made in
connection with the sale of the Shares under the Option Plan are
a) in the proper form, b) represent the proper number of Shares
and c) where certificated, are executed by the appropriate
corporate officers and delivered to the shareholder; and
2. consideration required by the Option Plan is received by the
corporation and credited to the applicable shareholder,
we are of the opinion that the Shares sold under the Option Plan, when issued,
will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Statement.
Sincerely yours,
/s/ Ragsdale, Liggett & Foley
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RAGSDALE, LIGGETT & FOLEY PLLC
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CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 33-00000) pertaining to the 1996 Employee Incentive Stock Option Plan of
McM Corporation, of our reports dated February 29, 1996, with respect to the
consolidated financial statements of McM Corporation incorporated by reference
in its Annual Report (Form 10-K) for the year ended December 31, 1995 and the
related financial statement schedules included therein, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
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ERNST & YOUNG LLP
Raleigh, North Carolina
June 10, 1996
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