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As filed with the Securities and Exchange Commission on December 22, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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DAIRY MART CONVENIENCE STORES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 04-249-7894
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
300 Executive Parkway West, Hudson, Ohio 44236
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
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DAIRY MART CONVENIENCE STORES, INC.
AMENDED AND RESTATED 1995 STOCK OPTION AND INCENTIVE AWARD PLAN
(Full title of the plan)
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Gregory G. Landry
Chief Financial Officer
Dairy Mart Convenience Stores, Inc.
300 Executive Parkway West
Hudson, Ohio 44236
(Name and address of agent for service)
(330) 342-6600
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED* OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SHARE** PRICE** FEE
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<S> <C> <C> <C> <C>
Common Shares, 1,177,500 $2.4063 $2,833,418 $748
$.01 par value
</TABLE>
*Also includes an indeterminable number of additional shares that may become
issuable pursuant to the anti-dilution provisions of the Plan.
** Estimated in accordance with Rule 457 solely for the purpose of determining
the registration fee, based on the average of the high and low sale prices on
December 21, 2000, of the registrant's Common Shares as reported on the
American Stock Exchange.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Dairy Mart Convenience Stores, Inc. (sometimes hereinafter referred to
as the "Company" or the "registrant") and the Dairy Mart Convenience Stores,
Inc. Amended and Restated 1995 Stock Option and Incentive Award Plan (the
"Plan") incorporate herein by reference (i) the registrant's Annual Report on
Form 10-K for the year ended January 29, 2000, (ii) all other reports filed by
the registrant and the Plan pursuant to Section 13(a) or Section 15(d) of the
Exchange Act since the Annual Report on Form 10-K referenced above; and (iii)
the description of the Company's Common Shares contained in the Company's
Registration Statement on Form 8-A, as amended, filed under the Exchange Act.
All documents subsequently filed by the registrant and the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all Common Shares offered under
the Plan have been sold or which deregisters all such Common Shares 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
The legality of the Common Shares offered hereby has been passed upon
for the Company by Baker & Hostetler LLP, Cleveland, Ohio. Albert T. Adams, a
director of the Company, is a partner of Baker & Hostetler LLP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Delaware Corporation Law (the "Code") authorizes Delaware corporations
to indemnify officers and directors from liability if the officer or director
acted in good faith and in a manner reasonably believed by the officer or
director to be in or not opposed to the best interests of the corporation, and
with respect to any criminal actions, if the officer or director had no reason
to believe his action was unlawful. In the case of an action by or on behalf of
a corporation, indemnification may not be made if (i) the person seeking
indemnification is adjudged liable for negligence or misconduct, unless the
court in which such action was brought determines such person is fairly and
reasonably entitled to indemnification, or (ii) if liability asserted against
such person concerns certain unlawful distributions. The indemnification
provisions of the Code require indemnification if a director or officer has been
successful on the merits or otherwise in defense of any action, suit or
proceeding that he was a party to by reason of the fact that he is or was a
director or officer of the corporation.
The Company's Code of Regulations provides for the indemnification of
the Company's directors and officers and, as authorized by the Board of
Directors, for the advancement of expenses incurred by an individual in
connection with the defense of any action, suit or proceeding that such
individual was a party to by reason of the fact that the individual is or was a
director or officer of the Company or its subsidiaries upon the receipt of an
undertaking to repay such amount unless it is ultimately determined that the
director of officer is entitled to indemnification.
The Company maintains a directors and officers insurance policy which
provides for reimbursement to the Directors and officers of the Company for
legal fees and expenses resulting from the defense of any judicial or
administrative proceeding initiated against the Director or officer as a result
of his conduct or actions in his capacity as a Director or officer of the
Company, and provides
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reimbursement to the Company for costs it has incurred as a result of
indemnifying its directors and officers.
The Company has entered into indemnification agreements with its
directors which provide for indemnification to the fullest extent allowed under
Delaware law and the maintenance of the Company's directors and officers
insurance policy or its equivalent.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
None.
ITEM 8. EXHIBITS.
Exhibit Number Description of Exhibit
-------------- ----------------------
4(a) Restated Certificate of Incorporation of the Company(1)
4(b) Amended and Restated Bylaws of the Company(2)
4(c) Dairy Mart Convenience Stores, Inc. Amended and Restated 1995
Stock Option and Incentive Award Plan
5 Opinion of Baker & Hostetler
23(a) Consent of Arthur Andersen LLP
23(b) Consent of Baker & Hostetler (included in Opinion filed as
Exhibit 5 hereto)
24 Powers of attorney (included at page II-4)
___________
(1) Included as an exhibit to the Company's Form 10-K for the year ended
January 29, 2000 and incorporated herein by reference.
(2) Included as an exhibit to the Company's Form 10-Q for the quarter ended
November 2, 1996 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 of
1933 (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; and (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 (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
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(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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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 connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
The Registrant. 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 Hudson, State of Ohio, on the 20th
day of December, 2000.
DAIRY MART CONVENIENCE STORES, INC.
By: /s/ Robert B. Stein, Jr.
--------------------------
Robert B. Stein, Jr. Chairman of the Board,
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Robert B. Stein, Jr. and
Gregory G. Landry, or any one of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place, and stead, in any and all capacities, to sign any and all pre- or
post-effective 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 attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or 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 attorneys-in-fact and agents, or any of
them, or their or his 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 indicated on the 21st day of December, 2000.
Signature Title
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/s/ Robert B. Stein, Jr. President, Chief Executive Officer
---------------------------- and Director
Robert B. Stein, Jr.
/s/ Gregory G. Landry Executive Vice President, Chief Financial
---------------------------- Officer and Director
Gregory G. Landry
/s/ Albert T. Adams Director
----------------------------
Albert T. Adams
/s/ Frank W. Barrett Director
----------------------------
Frank W. Barrett
/s/ J. Kermit Birchfield, Jr. Director
----------------------------
J. Kermit Birchfield, Jr.
/s/ John W. Everets Director
---------------------------
John W. Everets
/s/ William A. Foley Director
--------------------------
William A. Foley
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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4(a) Restated Certificate of Incorporation of the Company(1)
4(b) Amended and Restated Bylaws of the Company(2)
4(c) Dairy Mart Convenience Stores, Inc. Amended and Restated 1995
Stock Option and Incentive Award Plan
5 Opinion of Baker & Hostetler
23(a) Consent of Independent Public Accountants
23(b) Consent of Baker & Hostetler (included in Opinion filed
as Exhibit 5 hereto)
24(a) Powers of attorney (included at page II-4)
____________
(1) Included as an exhibit to the Company's Form 10-K for the year ended
January 29, 2000 and incorporated herein by reference.
(2) Included as an exhibit to the Company's Form 10-Q for the quarter ended
November 2, 1996 and incorporated herein by reference.
