As filed with the Securities and Exchange Commission on July 1, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
AMES DEPARTMENT STORES, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 04-2269444
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
2418 MAIN STREET
ROCKY HILL, CT 06067
(860) 257-2000
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
AMES DEPARTMENT STORES, INC.
1994 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
AND
1995 LONG TERM INCENTIVE PLAN
(Full Title of Plans)
DAVID H. LISSY
SENIOR VICE PRESIDENT, GENERAL COUNSEL & CORPORATE SECRETARY
AMES DEPARTMENT STORES, INC.
2418 MAIN STREET
ROCKY HILL, CT 06067
(860) 257-2578
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
JEFFREY J. WEINBERG, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered(1) Share(2) Price(2) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 700,000 shares $8.6875 $6,081,250.00 $1,843.00
====================================================================================================================================
</TABLE>
(1) Plus such indeterminate number of shares of Common Stock of the Registrant
as may be issued to prevent dilution result- ing from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the Securities
Act of 1933.
(2) Estimated pursuant to Rule 457(h) and Rule 457(c) under the Securities Act
of 1933, based upon the closing price of the Registrant's Common Stock as
reported on the National Association of Securities Dealers Automated Quotation
System (NASDAQ) on June 26, 1997.
================================================================================
NYFS10...:\79\15079\0001\1438\FRM9275P.31I
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1.
The documents containing the information specified in Part I
of this Registration Statement will be sent or given to plan participants as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). Such documents are not required to be and are not filed with
the Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as a prospectus or prospectus supplement pursuant to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
The following reoffer prospectus filed as part of the
Registration Statement has been prepared in accordance with the requirements of
Part I of Form S-3 and, pursuant to General Instruction C of Form S-8, may be
used for reofferings and resales of Common Stock to be acquired by "affiliates"
of the Company (as defined in Rule 405 under the Securities Act) upon the
exercise or acquisition by such affiliates of options or Common Stock heretofore
or hereafter granted under the 1994 Non-Employee Directors Stock Option Plan or
the 1995 Long Term Incentive Plan.
<PAGE>
REOFFER PROSPECTUS
AMES DEPARTMENT STORES, INC.
COMMON STOCK (PAR VALUE $.01 PER SHARE)
200,000 SHARES OF COMMON STOCK UNDER THE
AMES DEPARTMENT STORES, INC. 1994 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
500,000 SHARES OF COMMON STOCK UNDER THE
AMES DEPARTMENT STORES, INC. 1995 LONG TERM INCENTIVE PLAN
This Prospectus is being used in connection with the offering
from time to time by employees and non-employee directors (the "Selling
Stockholders") of Ames Department Stores, Inc., a Delaware corporation (the
"Company"), who may be deemed "affiliates" of the Company as defined in Rule 405
under the Securities Act of 1933, as amended (the "Securities Act"), of shares
of common stock, par value $.01 per share, of the Company (the "Common Stock")
that have been or may be acquired by them pursuant to the Company's 1994
Non-Employee Directors Stock Option Plan (the "Stock Option Plan") or the
Company's 1995 Long Term Incentive Plan (the "LTIP Plan" and, collectively with
the Stock Option Plan, the "Stock Plans").
The shares of Common Stock may be sold from time to time to
purchasers directly by any of the Selling Stockholders. Alternatively, the
Selling Stockholders may sell the shares of Common Stock in one or more
transactions (which may involve one or more block transactions) on the National
Association of Securities Dealers, Inc. Automated Quotation System National
Market ("NASDAQ"), in sales occurring in the public market off NASDAQ, in
separately negotiated transactions, or in a combination of such transactions.
Each sale may be made either at market prices prevailing at the time of such
sale or at negotiated prices. Some or all of the shares of Common Stock may be
sold through brokers acting on behalf of the Selling Stockholders or to dealers
for resale by such dealers, and in connection with such sales, such brokers or
dealers may receive compensation in the form of discounts or commissions from
the Selling Stockholders and/or the purchasers of such shares for whom they may
act as broker or agent (which discounts or commissions are not anticipated to
exceed those customary in the types of transactions involved). However, any
securities covered by this Prospectus that qualify for sale pursuant to Rule 144
under the Securities Act may be sold under Rule 144 rather than pursuant to this
Prospectus. All expenses of registration incurred in connection with this
offering are being borne by the Company, but all brokerage commissions and other
expenses incurred by individual Selling Stockholders will be borne by each such
Selling Stockholder. The Company will not be entitled to any of the proceeds
from such sales, although the Company will, with respect to the Stock Option
Plan, receive the exercise price in cash upon the exercise of the options
pursuant to which the shares of Common Stock are acquired by the non-employee
directors party thereto.
The Selling Stockholders and any dealer participating in the
distribution of any shares of Common Stock or any broker executing selling
orders on behalf of the Selling Stockholders may be deemed to be "underwriters"
within the meaning of the Securities Act, in which event any profit on the sale
of any or all of the shares of Common Stock by them and any discounts or
commissions received by any such brokers or dealers may be deemed to be
underwriting discounts and commissions under the Securities Act.
The Common Stock is traded on NASDAQ under the symbol "AMES".
On June 26, 1997, the closing price of the Common Stock as reported by NASDAQ
was $8.6875 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION, NOR
HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is July 1, 1997.
1
<PAGE>
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION..................................................... 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE........................... 3
THE COMPANY............................................................... 5
SELLING STOCKHOLDERS...................................................... 5
PLAN OF DISTRIBUTION....................................................... 7
EXPERTS ................................................................ 7
No person has been authorized to give any information or to
make any representation not contained in this Prospectus in connection with any
offering made hereby and, if given or made, such information or representations
must not be relied upon as having been authorized by the Company or any other
person. This Prospectus does not constitute an offer to sell or a solicitation
of an offer to buy, nor shall there be any offer to sell, solicitation of an
offer to buy or sale of these securities by any person in any jurisdiction in
which it is unlawful for such person to make such offer, solicitation or sale.
Neither the delivery of this Prospectus at any time nor any sale made hereunder
shall under any circumstances create any implication that there has been no
change in the affairs of the Company since the date hereof or that the
information contained herein is correct as of any time subsequent to such date.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). The reports, proxy
statements and other information filed with the Commission, as well as the
Registration Statement (as defined below) of which this Prospectus is a part,
may be inspected and copied at the public reference facilities of the Commission
at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Commission's Regional Offices at Seven World Trade Center, 13th Floor, New York
10048 and Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60601-2511. Copies of such material also can be obtained by
mail from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. In addition, certain material
filed by the Company can be inspected at the NASD Public Reference Room of the
National Association of Securities Dealers Automated Quotation System, Inc. at
1735 K Street, N.W., Washington, D.C. 20006-1506, through which the Company's
Common Stock is quoted. Also, the Company files such reports, proxy statements
and other information with the Commission pursuant to the Commission's EDGAR
system. The Commission maintains a web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission pursuant to the EDGAR system. The address of
the Commission's web site is http://www.sec.gov.
2
<PAGE>
This Prospectus constitutes a part of a Registration Statement
on Form S-8 (the "Registration Statement") filed by the Company on July 1, 1997
with the Commission under the Securities Act. As permitted by the rules and
regulations of the Commission, this Prospectus omits certain information
contained in the Registration Statement and incorporates by reference certain
additional information previously filed with the Commission. Such additional
information can be inspected at and obtained from the Commission in the manner
set forth above. Statements contained in this Prospectus or in any document
incorporated by reference herein as to the terms of any contract or other
document referred to herein or therein are not necessarily complete, and in each
instance reference is made to the copy of such contract or other document filed
as an exhibit to the Registration Statement or such other document, each such
statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended January 25, 1997.
(b) The Company's Reports on Form 8-K filed on February 27,
March 20, April 11, May 8, and June 5, 1997.
(c) The Company's Report on Form 8-K/A filed on May 30, 1997.
(d) The Company's Quarterly Report on Form 10-Q for the
quarterly period ended April 26, 1997.
(e) The description of the Company's Common Stock, par value
$.01 per share (the "Common Stock"), contained in the
Company's Registration Statement on Form 8-A filed on
December 11, 1992 with the Commission pursuant to Section 12
of the Exchange Act, including an amendment on Form 8 filed
on December 29, 1992 that updated such description.
All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Any statements contained in a document incorporated or deemed
to be incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated herein by reference modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus. All
information appearing in this Prospectus is qualified in its entirety by the
information and financial statements (including notes thereto) appearing in the
documents incorporated herein by reference, except to the extent set forth in
the immediately preceding statement.
3
<PAGE>
Upon written or oral request, any of the documents
incorporated by reference in Item 3 of Part II of this Registration Statement
(which documents are incorporated by reference in this Section 10(a)
Prospectus), other documents required to be delivered to eligible employees
pursuant to Rule 428(b) or additional information about the Ames Department
Stores, Inc. 1994 Non-Employee Directors Stock Option Plan and its
administrators or the Ames Department Stores, Inc. 1995 Long Term Incentive Plan
and its administrators are available without charge by contacting:
Margaret E. Wyrwas
Vice President, Corporate Communications & Investor Relations
Ames Department Stores, Inc.
2418 Main Street
Rocky Hill, CT 06067
(860) 257-2659
4
<PAGE>
THE COMPANY
Ames Department Stores, Inc. and its subsidiaries
(collectively, "Ames" or the "Company") are retail merchandisers. As of June 20,
1997, Ames operates 294 discount department stores under the Ames name in 14
states in the Northeast, Middle Atlantic and Mid-West regions and the District
of Columbia. The Company's stores are located in rural communities, some of
which are not served by other large retail stores, high-traffic suburban sites,
small cities and several major metropolitan areas. The stores largely serve
middle and lower-middle income customers.
Ames is a Delaware corporation organized in 1962 as a
successor to a business originally founded in 1958. Ames was reorganized in
December, 1992 under Chapter 11 of the United States Bankruptcy Code. The
principal executive offices are located at 2418 Main Street, Rocky Hill,
Connecticut 06067, and the telephone number is (860) 257-2000.
SELLING STOCKHOLDERS
This Prospectus relates to shares of Common Stock that have
been or may be acquired by the Selling Stockholders pursuant to the Stock Plans.
The following table sets forth the name and relationship to the Company of each
Selling Stockholder who is (or may be deemed to be) an affiliate of the Company
and who holds options to acquire Common Stock pursuant to the Stock Option Plan
or who holds restricted shares pursuant to the LTlP Plan, together with, in the
case of the Stock Option Plan, the number of shares of Common Stock that each
such person may currently acquire pursuant to the exercise of such options and,
in the case of the LTlP Plan, the number of restricted shares currently held by
each such person.
Number of Shares
Relationship of Restricted
Name of Executive to the Company Stock Granted
- ----------------- -------------- -------------
Joseph R. Ettore President, Chief Executive Officer 75,000
and Director
John F. Burtelow Executive Vice President, Chief 35,000
Financial Officer
Denis T. Lemire Executive Vice President, Merchandising 35,000
Eugene E. Bankers Senior Vice President, Marketing 25,000
Richard L. Carter Senior Vice President, Human Resources 25,000
Gregory D. Lambert Senior Vice President, Finance 25,000
Paul Lanham Senior Vice President, 25,000
Management Information Systems
5
<PAGE>
David H. Lissy Senior Vice President, General Counsel 25,000
and Corporate Secretary
Alfred Petrillo Senior Vice President, Store Planning 25,000
Grant C. Sanborn Senior Vice President, Store Operations 25,000
James Varhol Senior Vice President, Asset Protection 25,000
Relationship Number of Options
Non Employee Directors to the Company Granted1
- ---------------------- -------------- --------
Francis X. Basile Director 15,000
Paul M. Buxbaum Director (Chairman) 15,000
Alan Cohen Director 15,000
Richard M. Felner Director 7,500
Sidney S. Pearlman Director 15,000
Laurie M. Shahon Director 7,500
As of May 23, 1997, there were 21,472,084 shares of the
Company's Common Stock outstanding.
- -------------------------
1. In addition to the number of options listed in this chart, pursuant to the
1994 Non-Employee Directors Stock Option Plan, on the date of each annual
meeting of stockholders of the Company, each non-employee director of the
Company then in office will be granted an option to purchase 2,500 shares.
6
<PAGE>
PLAN OF DISTRIBUTION
The shares of Common Stock may be sold from time to time to
purchasers directly by any of the Selling Stockholders. Alternatively, the
Selling Stockholders may sell the shares of Common Stock in one or more
transactions (which may involve one or more block transactions) on NASDAQ, in
sales occurring in the public market off NASDAQ, in separately negotiated
transactions, or in a combination of such transactions. Each sale may be made
either at market prices prevailing at the time of such sale or at negotiated
prices. Some or all of the shares of Common Stock may be sold through brokers
acting on behalf of the Selling Stockholders or to dealers for resale by such
dealers, and in connection with such sales, such brokers or dealers may receive
compensation in the form of discounts or commissions from the Selling
Stockholders and/or the purchasers of such shares for whom they may act as
broker or agent (which discounts or commissions are not anticipated to exceed
those customary in the types of transactions involved). However, any securities
covered by this Prospectus which qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
Prospectus. All expenses of registration incurred in connection with this
offering are being borne by the Company, but all brokerage commissions and other
expenses incurred by individual Selling Stockholders will be borne by each such
Selling Stockholder. The Company will not be entitled to any of the proceeds
from such sales, although the Company will, with respect to the Stock Option
Plan, receive the exercise price in cash upon the exercise of the options under
which the shares of Common Stock are acquired by the non-employee directors
party thereto.
The Selling Stockholders and any dealer participating in the
distribution of any of the shares of Common Stock or any broker executing
selling orders on behalf of the Selling Stockholders may be deemed to be
"underwriters" within the meaning of the Securities Act, in which event any
profit on the sale of any or all of the shares of Common Stock by them and any
discounts or commissions received by any such brokers or dealers may be deemed
to be underwriting discounts and commissions under the Securities Act.
Any broker or dealer participating in any distribution of
shares of Common Stock in connection with this offering may be deemed to be an
"underwriter" within the meaning of the Securities Act and if so deemed will be
required to deliver a copy of this Prospectus, including a Prospectus
Supplement, if required, to any person who purchases any of the shares of Common
Stock from or through such broker or dealer.
In order to comply with the securities laws of certain states,
if applicable, the shares of Common Stock will be sold only through registered
or licensed brokers or dealers. In addition, in certain states, the shares of
Common Stock may not be sold unless they have been registered or qualified for
sale in such state or an exemption from such registration or qualification
requirement is available and is complied with.
EXPERTS
The consolidated financial statements of Ames Department
Stores, Inc. appearing in Annual Report (Form 10-K) for the year ended January
25, 1997 have been audited by Arthur Andersen LLP, independent public
accountants, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
7
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by Ames
Department Stores, Inc. (the "Company") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended January 25, 1997.
(b) The Company's Reports on Form 8-K filed on February 27, March
20, April 11, May 8, and June 5, 1997.
(c) The Company's Report on Form 8-K/A filed on May 30, 1997.
(d) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended April 26, 1997.
(e) The description of the Company's Common Stock, par value $.01
per share (the "Common Stock"), contained in the Company's Registration
Statement on Form 8-A filed on December 11, 1992 with the Commission pursuant to
Section 12 of the Exchange Act, including an amendment on Form 8 filed on
December 29, 1992 that updated such description.
All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Generally, Section 145 of the General Corporation Law of the
State of Delaware permits a corporation to indemnify certain persons made a
party to an action, 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 enterprise. In the case of an action by or in the right of the
corporation, no indemnification may be made in respect of any matter as to which
that person was adjudged liable for negligence or misconduct in the performance
of that person's duty to the corporation unless the Delaware Court of Chancery
or the court in which the action was brought determines that despite the
adjudication of liability that person is fairly and reasonably entitled to
indemnity for proper expenses. To the extent that any such person has been
successful in the defense of any matter, such person shall be indemnified
against expenses actually and reasonably incurred by him.
8
<PAGE>
Section 3. of Article FIFTH of the Amended and Restated
Certificate of Incorporation of the Company provides that to the fullest extent
permitted by the Delaware General Corporation Law, no director shall be
personably liable to the Company or any of its stockholders for monetary damages
for breach of fiduciary duty as a director.
Article VIII of the Company's By-Laws provides that each
director and officer of the Company (and his heirs, executors and
administrators) shall be indemnified by the Company against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any action, suit or proceeding to
which he may be made a party by reason of his being or having been a director or
officer of the Company (whether or not he is a director or officer at the time
of incurring such expenses), provided that he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The Company shall not,
however, indemnify such director or officer in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Company unless and only to the extent that the Court of Chancery of the State of
Delaware 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.
The Company's By-Laws provide that the respective rights of
indemnification shall not be exclusive of other rights to which any director or
officer may be entitled under any law, By-law, agreement, vote of stockholders
or disinterested directors or pursuant to the direction of any court of
competent jurisdiction or otherwise.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company as disclosed above, the Company has been informed 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4(a) - Ames Department Stores, Inc. 1994 Non-Employee Directors
Stock Option Plan.
4(b) - Ames Department Stores, Inc. 1995 Long Term Incentive Plan.
4(c) - Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to the Company's
definitive Proxy Statement filed with the Commission on
April 8, 1996).
4(d) - By-Laws of the Company (incorporated by reference to the
Company's Annual Report on Form 10-K for the fiscal year
ended January 28, 1995).
5 - Opinion of Weil, Gotshal & Manges LLP.
23(a) - Consent of Arthur Andersen LLP.
9
<PAGE>
23(b) - Consent of Weil, Gotshal & Manges LLP (included in Exhibit
5).
24 - Power of Attorney (included as part of the signature pages
to this Registration Statement and 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;
(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 paragraph (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by the foregoing paragraphs is
contained in periodic reports filed by the Company 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.
(b) The undersigned registrant hereby undertakes 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 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 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
10
<PAGE>
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.
11
<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 Town of Rocky Hill, State of Connecticut on this 1st day
of July, 1997.
AMES DEPARTMENT STORES, INC.
By: /s/ Joseph R. Ettore
---------------------------------------
Name: Joseph R. Ettore
Title: President, Director &
Chief Executive Officer
By: /s/ John F. Burtelow
---------------------------------------
Name: John F. Burtelow
Title: Executive Vice President &
Chief Financial Officer
By: /s/ Gregory D. Lambert
---------------------------------------
Name: Gregory D. Lambert
Title: Senior Vice President, Finance
12
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints each of Joseph R. Ettore and
John F. Burtelow acting individually, his true and lawful attorney-in-fact and
agent, 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
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully 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, or his substitute or substitutes, may lawfully 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 date indicated.
Signature Title Date
--------- ----- ----
/s/ Joseph R. Ettore President, Director and July 1, 1997
- ------------------------- Chief Executive Officer
Joseph R. Ettore
/s/ John F. Burtelow Executive Vice President July 1, 1997
- ------------------------- Chief Financial Officer
John F. Burtelow
/s/ Paul M. Buxbaum Director and Chairman June 30, 1997
- -------------------------
Paul M. Buxbaum
/s/ Francis X. Basile Director June 27, 1997
- -------------------------
Francis X. Basile
/s/ Alan Cohen Director June 27, 1997
- -------------------------
Alan Cohen
/s/ Richard M. Felner Director July 1, 1997
- -------------------------
Richard M. Felner
/s/ Sidney S. Pearlman Director June 26, 1997
- -------------------------
Sidney S. Pearlman
Director _____ __, 1997
- -------------------------
Laurie M. Shahon
13
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4(a) - Ames Department Stores, Inc. 1994 Non-Employee Directors Stock
Option Plan.
4(b) - Ames Department Stores, Inc. 1995 Long Term Incentive Plan
4(c) - Amended and Restated Certificate of Incorporation of the
Company, as amended (incorporated by reference to the Company's
definitive Proxy Statement filed with the Commission on April 8,
1996).
4(d) - By-Laws of the Company (incorporated by reference to the
Company's Annual Report on Form 10-K for the fiscal year ended
January 28, 1995).
5 - Opinion of Weil, Gotshal & Manges LLP.
23(a) - Consent of Arthur Andersen LLP.
23(b) - Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).
24 - Power of Attorney (included as part of the signature page to
this Registration Statement and incorporated herein by
reference).
14
Exhibit 4(a)
As Adopted on
July 22, 1994
AMES DEPARTMENT STORES, INC.
1994 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
NYFS10...:\79\15079\0001\1438\PLN71394.N00
<PAGE>
TABLE OF CONTENTS
Page
1. Purposes......................................................... 1
2. Amount of Stock Subject to the Plan.............................. 1
3. Effective Date and Term of the Plan.............................. 2
4. Administration................................................... 2
5. Eligibility...................................................... 3
6. Option Grants.................................................... 3
7. Option Price and Payment......................................... 3
8. Terms of Options and Limitations on the Right of
Exercise......................................................... 5
9. Option Period and Exercise of Options............................ 5
10. Termination of Directorship...................................... 6
11. Use of Proceeds.................................................. 7
12. Non-Transferability of Options................................... 7
13. Adjustment of Shares............................................. 7
14. Right to Terminate Service....................................... 8
15. Purchase for Investment.......................................... 8
16. Issuance of Stock Certificates; Legends; Payment
of Expenses...................................................... 9
17. Listing of Shares and Related Matters............................ 10
18. Amendment of the Plan............................................ 10
19. Termination or Suspension of the Plan............................ 10
20. Savings Provision................................................ 10
21. Governing Law.................................................... 11
22. Partial Invalidity............................................... 11
<PAGE>
AMES DEPARTMENT STORES, INC.
1994 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
1. PURPOSES
Ames Department Stores, Inc. (the "Company") desires to
attract and retain the services of outstanding non-employee directors by
affording them an opportunity to acquire a proprietary interest in the Company
through automatic, non-discretionary awards of stock options ("Options")
exercisable to purchase shares of Common Stock (as defined below), and thus to
create in such directors an increased interest in and a greater concern for the
welfare of the Company and its subsidiaries.
The Options offered pursuant to this 1994 Non- Employee
Directors Stock Option Plan (the "Plan") are a matter of separate inducement and
are not in lieu of any other compensation for the services of any director.
The Options granted under the Plan are intended to be options
that do not meet the requirements for incentive stock options within the meaning
of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
As used in the Plan, the term "parent corporation" and
"subsidiary corporation" shall mean a corporation coming within the definition
of such terms contained in Sections 424(e) and 424(f) of the code, respectively.
2. AMOUNT OF STOCK SUBJECT TO THE PLAN
Options granted under the Plan shall be exercisable for shares
of common stock of the Company ("Common Stock"). Initially, and for so long as
the Company continues to have authorized Priority Common Stock, par value $.01
per share, and Common Stock, par value $.01 per share ("Ordinary Common Stock"),
Options granted under the Plan shall be exercisable for shares of Ordinary
Common Stock. If at any time there is more than one class of Common Stock, the
Shares (as defined below) shall be the class designated by the Board of
Directors pursuant to its authority under Section 4.
1
<PAGE>
The total number of shares of Common Stock authorized for
issuance under the Plan upon the exercise of Options (the "Shares"), shall not
exceed, in the aggregate, 400,000 of the currently authorized shares of Common
Stock of the Company, such number to be subject to adjustment in accordance with
Section 13 of the Plan.
Shares which may be acquired under the Plan may be either
authorized but unissued Shares, Shares of issued stock held in the Company's
treasury, or both. If and to the extent that Options granted under the Plan
expire or terminate without having been exercised, the Shares covered by such
expired or terminated Options may again be subject to a later-granted Option
under the Plan.
3. EFFECTIVE DATE AND TERM OF THE PLAN
The Plan shall become effective at 5:00 p.m., New York City
time, on July 22, 1994 (the "Effective Date"); provided, however, that if the
Plan is not approved by a vote of the stockholders of the Company at an annual
meeting or any special meeting of stockholders within twelve months after the
Effective Date, the Plan and any Options granted hereunder shall terminate. The
Plan shall terminate at the close of business on July 21, 2004 (the "Termination
Date"), unless sooner terminated in accordance with its terms.
4. ADMINISTRATION
The Plan shall be administered by the Board of Directors of
the Company (the "Board of Directors"), which may designate from among its
members a committee to exercise all power and authority of the Board of
Directors at any time and from time to time to administer the Plan. (References
herein to the Board of Directors shall be deemed to include references to any
such committee, except as the context otherwise requires.) Subject to the
express provisions of the Plan, the Board of Directors shall have authority to
construe the Plan and the Options granted thereunder, to prescribe, amend and
rescind rules and regulations relating to the Plan and to make all other
ministerial determinations necessary or advisable for administering the Plan.
The determination of the Board of Directors on matters
referred to in this Section 4 shall be conclusive.
2
<PAGE>
5. ELIGIBILITY
All non-employee directors of the Company (including former
officers or former key employees), each of whom (a) has not been an officer or
employee of the Company or any subsidiary corporation or parent corporation of
the Company for one year prior to the time a grant of Options is made to such
person hereunder and (b) is a "disinterested person" as such term is defined in
Rule 16b-3 (or any successor rule) promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), shall be eligible to be granted
Options under the Plan ("Eligible Directors").
The Plan does not create a right in any person to participate
in, or be granted Options under, the Plan.
6. OPTION GRANTS
On the Effective Date, each Eligible Director then in office
shall automatically be granted an Option to purchase 10,000 Shares (subject to
adjustment as provided in Section 13), subject to the approval of the Plan by
the stockholders of the Company at the 1995 Annual Meeting. Thereafter,
effective on the date of each annual meeting of stockholders of the Company
during the term of the Plan commencing with the 1996 Annual Meeting of
Stockholders, each Eligible Director then in office shall automatically be
granted, immediately following each such annual meeting of stockholders of the
Company, an Option to purchase 2,500 Shares (subject to adjustment as provided
in Section 13), with the date of the grant to be the date of such annual
meeting.
7. OPTION PRICE AND PAYMENT
The price for each Share purchasable upon exercise of any
Option granted hereunder on the Effective Date shall be an amount equal to the
fair market value per Share on such date. The price for each Share purchasable
upon exercise of any Option granted hereunder on the date of any annual meeting
of stockholders during the term of the Plan commencing with the 1996 Annual
Meeting of Stockholders shall be an amount equal to the fair market value per
Share on the date of grant. For purposes of the Plan, fair market value per
Share shall be determined as follows:
3
<PAGE>
(a) If the Shares are listed on a national securities
exchange in the United States or reported on the National
Association of Securities Dealers Automated Quotation
System-National Market System ("NASDAQ-NMS") on any date on
which the fair market value per Share is to be determined, the
fair market value per Share shall be deemed to be the closing
quotation at which such Shares are sold on the principal
national securities exchange or reported on NASDAQ-NMS on the
date such Option is granted. If the Shares are listed on a
national securities exchange in the United States on such date
or reported on NASDAQ-NMS but the Shares are not traded on
such date, or such national securities exchange or NASDAQ-NMS
is not open for business on such date, the fair market value
per Share shall be determined as of the closest date preceding
on which the Shares were traded.
(b) If on the date any Option is granted, a regular,
active public market exists (as determined in the sole
discretion of the Board of Directors, whose decision shall be
conclusive and binding) for the Shares but such Shares are not
listed on a national securities exchange in the United States
or reported on NASDAQ-NMS, the fair market value per Share
shall be deemed to be the average of the closing bid and ask
quotations in the over-the-counter market for such Shares in
the United States on the date such Option is granted. In the
event that there are no bid and ask quotations in the
over-the-counter market in the United States for such Shares
on the date such Option is granted, the fair market value per
Share shall be determined as of the closest preceding date on
which such quotations are available. For purposes of the
foregoing, a market in which trading is sporadic and the ask
quotations generally exceed the bid quotations by more than
15% shall not be deemed to be a "regular, active public
market." If the Board of Directors determines that a regular,
active public market does not exist for the Shares, the Board
of Directors shall determine the fair market value per Share
in its good faith judgment.
4
<PAGE>
Upon the exercise of an Option granted hereunder, the Company
shall cause the purchased Shares to be issued only when it shall have received
the full purchase price for the Shares in cash; provided, however, that in lieu
of cash, an optionee may, to the extent permitted by applicable law, exercise an
Option in whole or in part, by delivering to the Company shares of Common Stock
of the Company (in proper form for transfer and accompanied by all requisite
stock transfer tax stamps or cash in lieu thereof) owned by such optionee having
a fair market value equal to the cash exercise price applicable to that portion
of the Option being exercised by the delivery of such shares, the fair market
value per Share of Common Stock so delivered to be determined as of the date
immediately preceding the date on which the Option is exercised in accordance
with this Section 7, or as may be required in order to comply with or to conform
to the requirements of any applicable laws or regulations.
8. TERMS OF OPTIONS AND LIMITATIONS ON THE RIGHT OF EXERCISE
To the extent that an Option is not exercised within the
period of exercisability specified therein, it shall expire as to the then
unexercised part.
In no event shall an Option granted hereunder be exercised for
a fraction of a Share or for less than one hundred Shares (unless the number
purchased is the total balance for which the Option is then exercisable).
A person entitled to receive Shares upon the exercise of an
Option shall not have the rights of a stockholder with respect to such Shares
until the date of issuance of a stock certificate to him or her for such Shares;
provided, however, that until such stock certificate is issued, any holder of an
Option using previously acquired shares of Common Stock in payment of an option
exercise price shall continue to have the rights of a stockholder with respect
to such previously acquired shares of Common Stock.
9. OPTION PERIOD AND EXERCISE OF OPTIONS
An Option granted to any Eligible Director shall not be
exercisable for six (6) months following the date of grant of such Option;
provided that for purposes of this sentence only, any Option granted to an
Eligible Director
5
<PAGE>
prior to stockholder approval of the Plan shall be deemed to have been granted
on the date such approval is obtained. Thereafter, the Option shall be
exercisable for the period ending ten (10) years from the date of grant of such
Option, except to the extent such exercise is further limited or restricted
pursuant to the provisions hereof.
Subject to the express provisions of the Plan, Options granted
under the Plan shall be exercised by the optionee as to all or part of the
Shares covered thereby by the giving of written notice of the exercise thereof
to the Corporate Secretary of the Company at the principal business office of
the Company, specifying the number of Shares to be purchased, the proposed form
of payment and specifying a business day not more than ten (10) days from the
date such notice is given for the payment of the purchase price against delivery
of the Shares being purchased. Subject to the terms of Sections 15, 16 and 17
hereof, the Company shall cause certificates for the Shares so purchased to be
delivered at the principal business office of the Company, against payment of
the full purchase price, on the date specified in the notice of exercise.
10. TERMINATION OF DIRECTORSHIP
If an Eligible Director's service as a director of the Company
is terminated, any Option previously granted to such Eligible Director shall, to
the extent not theretofore exercised, terminate and become null and void;
provided, however, that:
(a) if an Eligible Director holding an outstanding
Option dies, including during either the three (3) month or
one (1) year period, whichever is applicable, specified in
clause (b) immediately below, such Option shall, to the extent
not theretofore exercised, remain exercisable for one (1) year
after such Eligible Director's death, by such Eligible
Director's legatee, distributee, guardian or legal or personal
representative; and
(b) if the service of an Eligible Director holding an
outstanding Option is terminated by reason of (i) such
Eligible Director's disability (as described in Section
22(e)(3) of the Code), (ii) voluntary retirement from service
as a director of the Company or (iii) failure of the
6
<PAGE>
Company to nominate for re-election such Eligible Director who
is otherwise eligible, except if such failure to nominate for
re-election is due to any act of (A) fraud or intentional
misrepresentation or (B) embezzlement, misappropriation or
conversion of assets or opportunities of the Company or any
subsidiary corporation or parent corporation of the Company
(in which case, such Option shall terminate and no longer be
exercisable), such Option shall, to the extent not therefore
exercised, remain exercisable at any time up to and including
(X) three (3) months after the date of such termination of
service in the case of termination by reason of voluntary
retirement or failure of the Company to nominate for
re-election such Eligible Director who is otherwise eligible,
subject to the above exceptions thereto stated in this clause
(b), and (Y) one (1) year after the date of termination of
service in the case of termination by reason of disability.
In no event, however, shall an Eligible Director be entitled
to exercise any Option after the expiration of the period of exercisability of
such Option, as specified therein.
11. USE OF PROCEEDS
The cash proceeds of the sale of Shares subject to the Options
granted hereunder are to be added to the general funds of the Company and used
for its general corporate purposes as the Board of Directors shall determine.
12. NON-TRANSFERABILITY OF OPTIONS
An Option granted hereunder shall not be transferable, whether
by operation of law or otherwise, other than by will or the laws of descent and
distribution. Except to the extent provided above, Options also may not be
assigned, transferred, pledged, hypothecated or disposed of in any way (whether
by operation of law or otherwise) and shall not be subject to execution,
attachment or similar process.
7
<PAGE>
13. ADJUSTMENT OF SHARES
Notwithstanding any other provision contained herein, in the
event of any change in the Shares subject to the Plan or to any Option granted
under the Plan (through merger, consolidation, reorganization, recapitalization,
stock dividend, stock split, split-up, split-off, spin-off, combination of
shares, exchange of shares, or other like change in the capital structure of the
Company), an adjustment shall be made to each outstanding Option such that each
such Option shall thereafter be exercisable for such securities, cash and/or
other property as would have been received in respect of the Shares subject to
such Option had such Option been exercised in full immediately prior to such
change, and such an adjustment shall be made successively each time any such
change shall occur. The term "Shares" after any such change shall refer to the
securities, cash and/or property then receivable upon exercise of an Option. In
addition, in the event of any such change, the Board of Directors shall make any
further adjustment to the maximum number of Shares which may be acquired under
the Plan pursuant to the exercise of Options, the maximum number of shares for
which Options may be granted to any one Eligible Director and the number of
Shares and price per Share subject to outstanding Options as shall be equitable
to prevent dilution or enlargement of rights under such Options, and the
determination of the Board of Directors as to these matters shall be conclusive
and binding on the optionee.
14. RIGHT TO TERMINATE SERVICE
The Plan shall not impose any obligation on the Company or on
any subsidiary corporation or parent corporation thereof to continue the service
of any director holding Options and shall not impose any obligation on the part
of any director holding Options to remain in the service of the Company or of
any subsidiary corporation or parent corporation thereof.
15. PURCHASE FOR INVESTMENT
Except as hereinafter provided, the Board of Directors may
require the holder of an Option granted hereunder, as a condition to exercise of
such Option in the event the Shares subject to such Option are not registered
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "Securities Act"),
8
<PAGE>
and applicable state securities laws, to execute and deliver to the Company a
written statement, in form satisfactory to the Board of Directors, in which such
holder (a) represents and warrants that such holder is purchasing or acquiring
the Shares acquired thereunder for such holder's own account for investment only
and not with a view to the resale or distribution thereof in violation of any
federal or state securities laws and (b) agrees that any subsequent resale or
distribution of any of such Shares shall be made only pursuant to either (i) an
effective registration statement covering such Shares under the Securities Act
and applicable state securities laws or (ii) specific exemptions from the
registration requirements of the Securities Act and any applicable state
securities laws, based on a written opinion of counsel, in form and substance
satisfactory to counsel for the Company, as to the application thereto of any
such exemptions.
Nothing herein shall be construed as requiring the Company to
register Shares subject to any Option under the Securities Act or any state
securities law and, to the extent deemed necessary by the Company, Shares issued
upon exercise of an Option may contain a legend to the effect that registration
rights have not been granted with respect to such Shares.
16. ISSUANCE OF STOCK CERTIFICATES; LEGENDS; PAYMENT OF
EXPENSES
The Company may endorse such legend or legends upon the
certificates for Shares issued upon exercise of Options granted pursuant to the
Plan and may issue such "stop transfer" instructions to its transfer agent in
respect of such Shares as the Board of Directors, in its discretion, determines
to be necessary or appropriate to (a) prevent a violation of, or to perfect an
exemption from, the registration requirements of the Securities Act or (b)
implement the provisions of the Plan and any agreement between the Company and
the optionee or grantee with respect to such Shares.
The Company shall pay all issue or transfer taxes with respect
to the issuance or transfer of Shares, as well as all fees and expenses
necessarily incurred by the Company in connection with such issuance or
transfer, except fees and expenses that may be necessitated by the filing or
amending of a registration statement under the Securities Act, which fees and
expenses shall be borne by the recipient
9
<PAGE>
of the Shares unless such registration statement has been filed by the Company
for its own corporate purpose (and the Company so states) in which event the
recipient of the Shares shall bear only such fees and expenses as are
attributable solely to the inclusion of the Shares an optionee receives in the
registration statement.
All Shares issued as provided herein shall be fully paid and
nonassessable to the extent permitted by law.
17. LISTING OF SHARES AND RELATED MATTERS
If at any time the listing, registration or qualification of
the Shares subject to such Option on any securities exchange or under any
applicable law, or the consent or approval of any governmental regulatory body,
is necessary as a condition of, or in connection with, the granting of an
Option, or the issuance of Shares thereunder, such Option may not be exercised
in whole or in part unless such listing, registration, qualification, consent or
approval shall have been effected or obtained.
18. AMENDMENT OF THE PLAN
The Board of Directors may, from time to time, amend the Plan,
provided that no amendment shall be made without the approval of the
stockholders of the Company that will (a) increase the total number of Shares
reserved for Options under the Plan (other than an increase resulting from an
adjustment provided for in Section 13 hereof), (b) modify the provisions of the
Plan relating to eligibility, or (c) materially increase the benefits accruing
to participants under the Plan. Notwithstanding any other provision hereof, in
no event shall the provisions of the Plan be amended more than one time in any
six-month period, other than to comport with changes in the Code, the Employee
Retirement Income Security Act of 1974, as amended, or the rules promulgated
thereunder.
19. TERMINATION OR SUSPENSION OF THE PLAN
The Board of Directors may at any time suspend or terminate
the Plan. Options may not be granted while the Plan is suspended or after it is
terminated. Rights and obligations under any Option granted while the Plan is in
effect shall not be altered or impaired by suspension or termination of the
Plan, except upon the consent of the person to whom the Option was granted. The
ministerial
10
<PAGE>
power of the Board of Directors to construe and administer any Options under
Section 4 that are granted prior to the termination or the suspension of the
Plan shall continue after such termination or during such suspension.
20. SAVINGS PROVISION
With respect to all participants in the Plan, transactions
under the Plan are intended to comply with all applicable conditions of Rule
16b-3 (or any successor provision) under the Exchange Act. To the extent any
provision of the Plan or action by the Board of Directors fails to so comply, it
shall be deemed null and void to the extent permitted by law and deemed
advisable by the Board of Directors.
21. GOVERNING LAW
The Plan, such Options as may be granted hereunder and all
related matters shall be governed by, and construed and enforced in accordance
with, the laws of the State of Delaware from time to time in effect.
22. PARTIAL INVALIDITY
The invalidity or illegality of any provision herein shall not
be deemed to affect the validity of any other provision.
11
Exhibit 4(b)
AMES DEPARTMENT STORES, INC.
1995 LONG TERM INCENTIVE PLAN
NYFS10...:\79\15079\0003\1438\PLN3245K.53A
<PAGE>
TABLE OF CONTENTS
Page
I. Purpose.......................................................... 1
II. Definitions...................................................... 1
III. Administration................................................... 3
IV. Decisions Final.................................................. 4
V. Duration of the Plan............................................. 5
VI. Shares Available - Limitations................................... 5
VII. Grant of Awards.................................................. 5
VIII. Restricted Stock................................................. 5
A. Restrictions.............................................. 5
B. Terms and Conditions...................................... 6
C. Delivery of Restricted Shares and Cash
Payment................................................... 6
IX. Federal Securities Law........................................... 7
X. Adjustment of Shares............................................. 7
XI. Miscellaneous Provisions......................................... 7
A. Investment Representation; Legends........................ 7
B. Withholding Taxes......................................... 7
C. Costs and Expenses........................................ 8
D. Other Incentive Plans..................................... 8
E. Effect on Employment...................................... 8
F. Governing Law............................................. 8
XII. Amendment or Termination of Plan................................. 8
XIII. Adoption of the Plan............................................. 9
i
NYFS10...:\79\15079\0003\1438\PLN3245K.53A
<PAGE>
AMES DEPARTMENT STORES, INC.
1995 LONG TERM INCENTIVE PLAN
I. Purpose.
This 1995 Long Term Incentive Plan (the "Plan") is intended to
promote the long term success of Ames Department Stores, Inc. (the "Company") by
affording certain executive officers of the Company with an opportunity to
acquire a proprietary interest in the Company, in order to incentivize such
persons and to align the financial interests of such persons with the
shareholders of the Company. The awards of restricted stock pursuant to the Plan
are a matter of separate inducement and are not in lieu of any salary or other
compensation for the services of any employee.
II. Definitions.
The following defined terms are used in the Plan:
"Agreement" shall mean the agreement or grant letter under
which the Participant is granted an Award pursuant to this Plan.
"Award" shall mean an incentive award granted under the Plan,
consisting of Restricted Stock and, if applicable, a Cash Payment.
"Board" shall mean the Board of Directors of the
Company.
"Cash Payment" shall mean a cash payment in an amount up to
50% of the Fair Market Value of the Restricted Stock as of the Vesting Date.
"Code" shall mean the Internal Revenue Code of
1986, as amended.
"Committee" shall mean the Compensation Committee
of the Board.
"Common Stock" shall mean common stock, par value $.01 per
share, issued by the Company.
"Company" shall mean Ames Department Stores, Inc., a Delaware
corporation, and any successor thereof.
1
NYFS10...:\79\15079\0003\1438\PLN3245K.53A
<PAGE>
"Disabled" or "Disability" shall mean long-term disability as
determined under the provisions of any disability plan maintained for the
benefit of an Eligible Employee of the Company.
"Disinterested Person" shall have the meaning set forth in
Rule 16b-3(c)(2)(i) and its successor promulgated under the Exchange Act.
"Effective Date" shall mean the date on which the Plan is
approved by the stockholders of the Company.
"Eligible Employee" shall mean any of the following executive
employees of the Company: the Chief Executive Officer, each Executive Vice
President and each Senior Vice President.
"Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
"Executive Officers" shall mean any officer of the Company
who, at the time of an Award, is subject to the reporting requirements of
Section 16(a) of the Exchange Act.
"Fair Market Value" as of any date shall mean the average
closing price of a share of Common Stock as reported on the National Association
of Securities Dealers Inc. Automated Quotation System/National Market System or
upon the national securities exchange, if any, upon which the Common Stock is
then listed for the twenty trading days up to and including such date or, if the
Common Stock is not then publicly traded, at the fair market value as determined
by the Committee.
"Participant" shall mean an Eligible Employee who is granted
an Award.
"Plan" shall mean the Ames Department Stores, Inc. 1995 Long
Term Incentive Plan.
"Restricted Stock" shall mean an Award made by the Committee
entitling the Participant to acquire, at no cost, shares of Common Stock which
are subject to restrictions in accordance with the provisions of Section VIII
hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
2
<PAGE>
"Vesting Date" shall mean with respect to any Award, the date
that is the third anniversary of the date of grant of such Award; provided that
the Participant is still employed by the Company on such date.
III. Administration.
A. The Plan shall be administered by the Committee.
The Committee may adopt such rules, regulations and
guidelines as it determines necessary for the administration
of the Plan.
B. The Committee may delegate to one or more of its members, or to
one or more agents, such administrative duties as it may deem advisable, and the
Committee or any person to whom it has delegated duties as aforesaid may employ
one or more persons to render advice with respect to any responsibility the
Committee or such person may have under the Plan. The Committee may employ such
legal or other counsel, consultants and agents as it may deem desirable for the
administration of the Plan and may rely upon any opinion or computation received
from any such counsel, consultant or agent. Expenses incurred by the Committee
in the engagement of such counsel, consultant or agent shall be paid by the
Company. The Company shall indemnify members of the Committee and any agent of
the Committee who is an employee of the Company against any and all liabilities
or expenses to which they may be subjected by reason of any act or failure to
act with respect to their duties on behalf of the Plan, except in circumstances
involving such person's gross negligence or willful misconduct.
C. In furtherance of and not in limitation of the Committee's
discretionary authority, subject to the provi- sions of the Plan, the Committee
shall have the authority to:
1. determine the Participants to whom Awards shall be
granted, the number of shares of Restricted Stock to be
awarded and the terms and conditions upon which Awards
shall be granted (which need not be the same for all
Awards);
2. determine the amount of the Cash Payment, if any, to be
made to each Participant as part of the Award;
3
<PAGE>
3. determine the time when Awards shall be granted, the
restrictions to be applicable to Awards, and the other
terms and provisions of Awards;
4. modify grants of Awards pursuant to Paragraph D of this
Section III;
5. adopt, modify and rescind rules and regula- tions and
guidelines relating to the Plan;
6. obtain the approval of the stockholders of the Company,
as the Committee, in its sole discretion, may determine,
in respect of Awards;
7. make all determinations, perform all other acts,
exercise all other powers and establish any other
procedures determined by the Committee to be necessary,
appropriate or advisable in administering the Plan and
to maintain compliance with any applicable law.
D. The Committee may at any time, in its sole discretion, accelerate
the vesting of any Awards and waive or amend any and all restrictions and
conditions of any Awards.
E. Subject to and not inconsistent with the express provisions of the
Plan and Rule 16b-3 of the Exchange Act, the Committee shall have the authority
to require, as a condition to the granting of any Award to any Executive Officer
of the Company that the Executive Officer receiving such Award agree not to sell
or otherwise dispose of any Common Stock acquired pursuant to such Award for a
period of six (6) months following the vesting of such Award.
IV. Decisions Final.
Any decision, interpretation or other action made or taken in good
faith by the Committee arising out of or in connection with the Plan shall be
final, binding and conclusive on the Company and all Participants and their
respective heirs, executors, administrators, successors and assigns.
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V. Duration of the Plan.
The Plan shall remain in effect for a period of ten (10) years from
the Effective Date, unless terminated by the Board pursuant to Section XII.
VI. Shares Available - Limitations.
The maximum aggregate number of shares of Common Stock of the
Company for which Awards of Restricted Stock may be granted for all purposes
under the Plan (except for adjustments pursuant to Section X hereof) shall be
500,000 shares of Common Stock. Awards granted under the Plan may be fulfilled
in accordance with the terms of the Plan with (i) authorized and unissued shares
of the Common Stock or (ii) issued shares of Common Stock reacquired by the
Company, in each situation, as the Board or the Committee may determine from
time to time at its sole discretion. Shares awarded pursuant to the Plan which
are resold to the Company or forfeited as provided in Section VIII shall again
become available for award under the Plan.
VII. Grant of Awards.
A. Each Award under this Plan shall consist of Restricted Stock in an
amount determined by the Committee and, if applicable, the amount of the Cash
Payment.
B. Each grant of an Award under this Plan shall be evidenced by an
Agreement dated as of the date of such grant. This Agreement shall set forth the
terms and conditions of the Award, as may be determined by the Committee.
VIII. Restricted Stock.
The Committee may, in its sole discretion, grant Restricted Stock to
Eligible Employees subject to the provisions below.
A. Restrictions. A stock certificate representing the number of
shares of Restricted Stock granted shall be held in custody by the Company for
the Participant's account. The Participant shall have all rights and privileges
of a stockholder as to such Restricted Stock, including the right to receive
dividends and the right to vote such shares, except that, subject to the
provisions of Paragraph B below, the following restrictions shall apply:
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(i) the Participant shall not be entitled to delivery of the certificate until
the Vesting Date; (ii) none of the shares of Restricted Stock may be sold,
transferred, assigned, pledged, or otherwise encumbered or disposed of prior to
the Vesting Date; (iii) the Participant shall, if requested by the Company,
execute and deliver to the Company, a stock power endorsed in blank. In the case
of a Participant whose employment with the Company is terminated prior to the
Vesting Date of any Award other than by reason of (i) such Participant becoming
Disabled or (ii) the death of such Participant, such Award to such Participant
shall be entirely forfeited.
If a Participant becomes Disabled or dies prior to the Vesting
Date of any Award, the Vesting Date shall be deemed to have occurred on the date
of such Disability or death in respect of a portion of the Award determined by
multiplying the number of shares of Restricted Stock subject to such Award by a
fraction, the numerator of which is the number of full months that elapsed
between the date of grant of such Award and the date of Disability or death, as
the case may be, and the denominator of which shall be 36. If such Award
included a Cash Payment, such Participant shall also receive such Cash Payment
based upon the Fair Market Value of the number of shares of Restricted Stock
actually received pursuant to such Award.
B. Terms and Conditions. The Committee shall estab- lish the terms
and conditions, which need not be the same for all grants of Restricted Stock
pursuant to Section III of the Plan. The Committee may waive, in whole or in
part, any or all restrictions applicable to a grant of Restricted Stock.
C. Delivery of Restricted Shares and Cash Payment. On the Vesting
Date as herein provided, a stock certificate for the number of shares of
Restricted Stock with respect to which the restrictions have lapsed shall be
delivered, free of all such restrictions, except applicable securities law
restrictions, to the Participant or the Participant's estate, as the case may
be, together with, if applicable, the Cash Payment with respect thereto.
Notwithstanding the foregoing, the Committee may authorize the delivery of
certificates representing the Restricted Stock to a Participant prior to the
Vesting Date, in which event any stock certificates in respect of shares of
Restricted Stock thus delivered to a Participant during the Restricted Period
applicable to such shares shall bear an appropriate legend
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referring to the terms and conditions, including the restrictions, applicable
thereto.
IX. Federal Securities Law.
With respect to grants of Awards to Executive Officers, the Company
intends that the provisions of this Plan and all transactions effected in
accordance with the Plan shall comply with Rule 16b-3 under the Exchange Act.
Accordingly, the Committee shall administer and interpret the Plan to the extent
practicable, to maintain compliance with such rule.
X. Adjustment of Shares.
Notwithstanding any other provision contained herein, in the event
there is a merger, consolidation, combination, liquidation, reorganization,
recapitalization, stock dividend, stock split, split-up, split-off, spin-off,
combination of shares, exchange of shares or other like change in capital
structure of the Company, appropriate adjustments shall be made by the Committee
as to the nature and maximum number of shares of Common Stock subject to the
Plan, to prevent the dilution or enlargement of the benefits intended pursuant
to the Plan. The determination of the Committee as to these matters shall be
conclusive. Any fractional shares or interests resulting from such adjustment
shall be rounded up to the next whole share of Common Stock.
XI. Miscellaneous Provisions.
A. Investment Representation; Legends. The Committee may require each
Participant acquiring shares of Common Stock pursuant to an Award to represent
to and agree with the Company in writing that such Participant is acquiring the
shares without a view to distribution thereof.
No shares of Common Stock shall be issued pursuant to an Award until all
applicable securities law and other legal and stock exchange requirements have
been satisfied. The Committee may require the placing of stop-orders and
restrictive legends on certificates for Common Stock as it deems appropriate.
B. Withholding Taxes. The Company, as a condition of the granting of
an Award or the distribution of any Restricted Stock or Common Stock pursuant to
an Award, may
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require the payment (through withholding from the Participant's salary, payment
of cash by the Participant, reduction of the number of shares of Common Stock or
other securities to be issued, or otherwise) of any federal, state, local or
foreign taxes required by law to be withheld with respect to such distribution.
C. Costs and Expenses. The costs and expenses of administering the
Plan shall be borne by the Company and shall not be charged against any Award
nor to any Partici- pant receiving an Award.
D. Other Incentive Plans. The adoption of the Plan does not preclude
the adoption by appropriate means of any other incentive plan for employees.
E. Effect on Employment. Nothing contained in the Plan or any
agreement related hereto or referred to herein shall affect, or be construed as
affecting, the terms of employment of any Participant except to the extent
specifically provided herein or therein. Nothing contained in the Plan or any
agreement related hereto or referred to herein shall impose, or be construed as
imposing, an obligation on (i) the Company to continue the employment of any
Participant and (ii) any Participant to remain in the employ of the Company.
F. Governing Law. This Plan and actions taken in connection herewith
shall be governed and construed in accordance with the laws of the State of
Delaware.
XII. Amendment or Termination of Plan.
The Board shall have the right to amend, modify, suspend or terminate
the Plan at any time, provided that no amendment shall be made which shall
increase the total number of shares of Common Stock which may be issued pursuant
to Awards either in the aggregate or to any single Participant in any fiscal
year of the Company (other than reflecting adjustments pursuant to Section X
hereof). With respect to Awards made to Executive Officers, no amendment shall
be made which either (i) materially increases the benefits accruing to such
Executive Officers or (ii) materially modifies the requirements as to
eligibility for participation of Executive Officers in the Plan unless such
amendment is made with the approval of stockholders. No amendment, modification,
suspension or termination of the
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Plan shall alter or impair any Awards previously granted under the Plan, without
the consent of the holder thereof.
XIII. Adoption of the Plan.
The Plan shall become effective on the date on which the stockholders
approve the Plan by a majority of the votes cast at the 1995 Annual Meeting of
Stockholders of the Company.
IN WITNESS WHEREOF, Ames Department Stores, Inc. act- ing by and
through its officer hereunto duly authorized, has executed this instrument, as
of the 22nd day of March, 1995.
AMES DEPARTMENT STORES, INC.
By:
-----------------------------------
Name: Paul Buxbaum
Title: Chairman
Exhibit 5
WEIL, GOTSHAL & MANGES LLP
A Partnership Including Professional Corporations
767 Fifth Avenue New York, NY 10153-0119
(212) 310-8000
Fax: (212) 310-8007
June 25, 1997
Ames Department Stores, Inc.
2418 Main Street
Rocky Hill, Connecticut 06067
Gentlemen:
We have acted as counsel to Ames Department Stores, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of
the Registration Statement of the Company on Form S-8 under the Securities Act
of 1933 (the "Registration Statement"). Capitalized terms defined in the
Registration Statement and used but not otherwise defined herein are used herein
as so defined.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such corporate records, agreements,
documents and other instruments, and such certificates or comparable documents
of public officials and of officers and representatives of the Company, and have
made such inquiries of such officers and representatives, as we have deemed
relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of documents
submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to this opinion that have not been independently established, we
have relied upon certificates or comparable documents of officers and
representatives of the Company.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that the 700,000 shares of Common Stock, par value
$0.01 per share, of the Company (the "Common Stock") to be issued and sold by
the Company pursuant to the Registration Statement, have been duly authorized
and, when issued and sold as contemplated by the Registration Statement and the
Ames Department Stores, Inc. 1994 Non- Employee Directors Stock Option Plan or
the 1995 Long Term Incentive Plan, as the case may be, will be validly issued,
fully paid and nonassessable.
This opinion is rendered solely for your benefit in connection with the
transactions described herein. This opinion may not be used or relied upon by
any other person, nor may this letter or any copies thereof be furnished to a
third party, filed with a governmental agency, quoted, cited or otherwise
referred to without our prior written consent.
We hereby consent to be named in the Prospectus as the attorneys who
have passed upon the legality of the securities being offered thereby and to the
filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
report dated March 7, 1997 included in the Ames Department Stores, Inc. Form
10-K for the fiscal year ended January 25, 1997 and to all references to our
Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
New York, New York
June 25, 1997
