<PAGE> 1
As filed with the Securities and Exchange Commission
on December 26, 1995
Registration No. 33-
-----
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
CML GROUP, INC.
--------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 04-2451745
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
524 MAIN STREET
ACTON, MASSACHUSETTS 01720
-------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
1996 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
(Full title of the plan)
PETER B. TARR, ESQ.
C/O HALE AND DORR
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
------------------------------------------------------------------------------
(Name and address of agent for service)
(617) 526-6000
- --------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Title of Proposed Proposed
securities Amount to maximum maximum Amount of
to be be offering price aggregate registration
registered registered per share offering price fee
- ---------- ---------- -------------- -------------- -------------
<S> <C> <C> <C> <C>
Common 975,000 (1) $4.00 (1) $3,900,000 $1,345
Stock, shares
$.10 par
value
<FN>
- ---------------
(1) Estimated solely for the purpose of calculating the registration
fee pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as
amended, upon the basis of the average of the high and low prices of the
Registrant's Common Stock as reported on the New York Stock Exchange on
December 19, 1995.
</TABLE>
<PAGE> 2
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the 1996 Employee Stock Purchase Plan of CML Group,
Inc. (the "Registrant") pursuant to Rule 428(b)(1) under the Securities Act of
1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 13(c), 14 and 15(d) 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 following documents, which are
filed with the Commission, are incorporated in this Registration Statement by
reference:
(1) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act, or the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act that contains
audited financial statements for the Registrant's latest fiscal year
for which such statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
document referred to in (1) above.
(3) The description of the Common Stock, par value $.10 per
share ("Common Stock"), contained in a registration statement filed
under the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
-------------------------
Not applicable.
<PAGE> 3
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at its request in such capacity in another corporation or
business association, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
Article XI of the Registrant's By-Laws, as amended, requires the
Registrant to indemnify each person who is or was a director or officer of the
Registrant against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement to the extent permitted from time to time under the
Delaware General Corporation Law, as amended. Article Eighth of the
Registrant's Restated Certificate of Incorporation, as amended, requires the
Registrant to indemnify to the full extent permitted under applicable law, any
person made or threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was a director or officer
of the Registrant. In addition, Article Tenth of the Registrant's Restated
Certificate of Incorporation, as amended, provides that no director of the
Registrant shall be liable for any breach of fiduciary duty, except to the
extent that the
-2-
<PAGE> 4
Delaware General Corporation Law prohibits the elimination or
limitation of liability of directors for breach of fiduciary duty.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings.
------------
1. The Registrant hereby undertakes:
(a) 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reelected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; 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 Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
-3-
<PAGE> 5
(b) 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.
(c) 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.
2. The 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 in the initial
bona fide offering thereof.
3. 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 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.
-4-
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on this 22nd
day of December, 1995.
CML GROUP, INC.
By: /s/ G. Robert Tod
--------------------------------
G. Robert Tod
President
POWER OF ATTORNEY
We, the undersigned officers and directors of CML Group, Inc., hereby
severally constitute G. Robert Tod, Robert J. Samuelson and Paul P. Brountas,
and each of them singly, our true and lawful attorneys with full power to any
of them, and to each of them singly, to sign for us and in our names in the
capacities indicated below the Registration Statement on Form S-8 filed
herewith and any and all amendments to said Registration Statement and
generally to do all such things in our name and behalf in our capacities as
officers and directors to enable CML Group, Inc. to comply with the provisions
of the Securities Act and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be
signed by our said attorneys, or any of them, to said Registration Statement
and any and all amendments thereto.
-5-
<PAGE> 7
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
Chairman of the Board of )
Directors and Chief )
/s/ Charles M. Leighton Executive Officer (Principal )
- ------------------------ Executive Officer) )
Charles M. Leighton
)
)
)
/s/ G. Robert Tod President, Chief Operating )
- ------------------------ Officer and Director )
G. Robert Tod
)
)
Senior Vice President, )
/s/ Robert J. Samuelson Chief Financial Officer and )
- ------------------------ Treasurer (Principal Financial)
Robert J. Samuelson Officer) )
)
)
/s/ Glenn E. Davis Vice President and Controller )
- ------------------------ (Principal Accounting Officer))
Glenn E. Davis
)
)December 22,1995
/s/ Howard H. Callaway Director )
- ------------------------
Howard H. Callaway )
)
)
/s/ Thomas H. Lenagh Director )
- ------------------------
Thomas H. Lenagh )
)
)
/s/ Homer L. Luther, Jr. Director )
- ------------------------
Homer L. Luther, Jr. )
)
)
/s/ Roy W. Menninger Director )
- ------------------------
Roy W. Menninger )
)
)
/s/ Alison Taunton-Rigby Director )
- ------------------------
Alison Taunton-Rigby )
)
)
/s/ Lauren M. Tyler Director )
- ------------------------
Lauren M. Tyler )
)
)
/s/ Ralph F. Verni Director )
- ------------------------
Ralph F. Verni
</TABLE>
-6-
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description of Exhibit Page
- ------- ---------------------- ----
<S> <C> <C>
4.1 Specimen certificate for shares of Common
Stock of the Registrant is incorporated herein by
reference to Exhibit 4 to the Registrant's
Registration Statement on Form S-1 (File
No. 2-86828)..................................... *
4.2 Form of Rights Certificate is incorporated herein
by reference to Exhibit B to Exhibit 1 to the
Registrant's Registration Statement on Form 8-A
filed July 13, 1988.............................. *
4.3 Rights Agreement dated as of June 28, 1988
between the Registrant and The First National
Bank of Boston is incorporated herein by reference
to Exhibit 1 to the Registrant's Registration
Statement Form 8-A filed July 13, 1988, as amended
by the Registrant's Form 8 filed August 5, 1988.. *
4.3 Specimen certificates for the Registrant's 5-1/2%
Convertible Subordinated Debentures Due 2003 are
incorporated herein by reference to Exhibit 4.1
to the Registrant's Quarterly Report on Form 10-Q
filed March 16, 1993............................. *
4.4 Terms of the Registrant's 5-1/2% Convertible
Subordinated Debentures Due 2003 are incorporated
herein by reference to Exhibit A to Exhibit 19.2
to the Registrant's Quarterly Report on Form 10-Q
filed March 16, 1993............................. *
5 Opinion of Hale and Dorr......................... 9
23.1 Consent of Deloitte & Touche LLP................. 11
23.2 Consent of Hale and Dorr (included in
Exhibit 5).......................................
24 Power of Attorney (appears on page 5)............
<FN>
- ----------------
* Incorporated herein by reference.
</TABLE>
-7-
<PAGE> 1
Exhibit 5
------- -
Hale and Dorr
60 State Street
Boston, Massachusetts 02109
December 22, 1995
CML Group, Inc.
524 Main Street
Acton, MA 01720
Re: 1996 Employee Stock Purchase Plan
---------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to 975,000 shares of Common Stock, $.10 par value per share
(the "Shares"), of CML Group, Inc., a Delaware corporation (the "Company"),
issuable under the Company's 1996 Employee Stock Purchase Plan (the "Plan").
We have examined the Restated Certificate of Incorporation, as amended,
of the Company, the By-Laws, as amended, of the Company, and originals, or
copies certified to our satisfaction, of all pertinent records of the meetings
of the directors and stockholders of the Company, the Registration Statement
and such other documents relating to the Company as we have deemed material for
the purposes of this opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified, photostatic or facsimile copies, and the
authenticity of the originals of any such documents.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized for issuance under the Plan, and that the Shares, when issued
and paid for in accordance with the terms of the Plan and at a price per share
in excess of the par value per share for such Shares, will be legally issued,
fully paid and nonassessable.
<PAGE> 2
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Paul P. Brountas, a partner of this firm, is Secretary of the Company.
Very truly yours,
HALE AND DORR
<PAGE> 1
Exhibit 23.1
------- ----
INDEPENDENT AUDITORS' CONSENT
- -----------------------------
We consent to the incorporation by reference in this Registration
Statement of CML Group, Inc. and its subsidiaries on Form S-8 of our report
dated September 27, 1995 appearing in the Annual Report on Form 10-K of CML
Group, Inc. and its subsidiaries for the year ended July 31, 1995.
Deloitte & Touche LLP
Boston, Massachusetts
December 22, 1995
