<PAGE> 1
As filed with the Securities and Exchange Commission on March 11, 1996
Registration Statement No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-3
-----------------------
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CML GROUP, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 04-2451745
(State or other juris- (I.R.S. Employer
diction of incorpora- Identification No.)
tion or organization)
524 MAIN STREET
ACTON, MASSACHUSETTS 01720
(508) 264-4155
(Address, including zip code, and
telephone number, including area code,
of registrant's principal
executive offices)
-----------------------
CHARLES M. LEIGHTON
CHIEF EXECUTIVE OFFICER
CML GROUP, INC.
524 MAIN STREET
ACTON, MASSACHUSETTS 01720
(508) 264-4155
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
COPY TO:
PETER B. TARR, ESQ.
HALE AND DORR
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(617) 526-6000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: AS SOON
AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
<PAGE> 2
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
--------
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
--------
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
==============================================================================================
Proposed Proposed
Maximum Maximum Amount
Amount Offering Aggregate of Regis-
Title of Each Class of to be Price Per Offering tration
Securities to be Registered Registered Share(1) Price(1) Fee
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.10 par value............. 352,941 $3.6875 $1,301,470 $449
==============================================================================================
<FN>
(1) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(c)
under the Securities Act and based upon the average of the high and low prices on the New
York Stock Exchange on March 6, 1996.
</TABLE>
THE COMPANY HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE COMPANY SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
SHALL DETERMINE.
================================================================================
<PAGE> 3
PROSPECTUS
352,941 Shares
CML GROUP, INC.
Common Stock
--------------------
The 352,941 shares of common stock, $.10 par value (the "Common Stock"),
of CML Group, Inc. (the "Company") covered by this Prospectus are issued and
outstanding shares which may be offered and sold, from time to time, by William
Wilkinson, a stockholder of the Company (the "Selling Stockholder"). The shares
of Common Stock covered by this Prospectus (the "Shares") were issued to the
Selling Stockholder on March __, 1996 in connection with the settlement of a
claim by the Selling Stockholder (the "Settlement") against NordicTrack, Inc., a
wholly-owned subsidiary of the Company ("NordicTrack"). The Settlement provides
that of the 352,941 shares of Common Stock issued to the Selling Stockholder,
88,000 of such shares will not be sold by the Selling Stockholder pursuant to
this Prospectus until after June __, 1996 and 175,941 of such shares shall be
non- transferable until after January 1, 1997. The Selling Stockholder has
advised the Company that he proposes to sell, from time to time subject to the
restrictions set forth in the preceding sentence, all or part of the shares
covered by this Prospectus on the New York Stock Exchange in ordinary brokerage
transactions, in negotiated transactions, or otherwise, at market prices
prevailing at the time of sale or negotiated prices. See "PLAN OF
DISTRIBUTION."
The Company will not receive any of the proceeds from the sale of shares
covered by this Prospectus but will bear all expenses incurred in effecting the
registration of such shares, including all registration and filing fees, "blue
sky" fees, printing expenses, and the legal fees of counsel to the Company. The
Selling Stockholder will bear all brokerage or underwriting expenses or
commissions, if any, applicable to the shares.
On March 7, 1996, the closing sale price of the Common Stock on the New
York Stock Exchange was $3.75 per share.
-----------------------
THE SHARES OFFERED HEREBY INVOLVE A HIGH DEGREE
OF RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 6.
-----------------------
<PAGE> 4
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES 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 March __, 1996.
-2-
<PAGE> 5
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 and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy statements and other
information filed by the Company with the Commission pursuant to the
informational requirements of the Exchange Act may be inspected and copied at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 and at the Commission's regional offices
located at Seven World Trade Center, Suite 1300, New York, New York 10048, and
at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such materials also may be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Common Stock of the Company is traded on the New York
Stock Exchange. Reports and other information concerning the Company may be
inspected at the New York Stock Exchange.
The Company has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the shares of Common Stock offered hereby. This Prospectus does
not contain all the information set forth in the Registration Statement and the
exhibits and schedules thereto, as certain items are omitted in accordance with
the rules and regulations of the Commission. For further information pertaining
to the Company and the Shares, reference is made to such Registration Statement
and the exhibits and schedules thereto. Statements contained in this Prospectus
regarding the contents of any agreement or other document are not necessarily
complete, and in each instance reference is made to the copy of such agreement
or document filed as an exhibit to the Registration Statement, each such
statement being qualified in all respects by such reference. The Registration
Statement, including all exhibits and schedules thereto, may be inspected
without charge at the office of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and copies of all or any part thereof may be obtained
from the Commission at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(i) The Company's Annual Report on Form 10-K for the fiscal year
ended July 31, 1995;
(ii) The Company's Quarterly Report on Form 10-Q for the quarter
ended October 28, 1995;
(iii) The proxy statement for the Company's Annual Meeting of
Stockholders held on December 1, 1995; and
(iv) The Company's Current Report on Form 8-K, dated February
22, 1996.
-3-
<PAGE> 6
(v) The description of the Common Stock contained in a registration
statement filed under the Exchange Act, including the portions of
all amendments or reports filed for the purpose of updating such
description heretofore filed by the Company with the Commission.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the termination of the offering of the Common Stock
registered hereby shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the date of filing such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein 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 by
reference herein 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.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any or all of the foregoing documents incorporated by reference into this
Prospectus (without exhibits to such documents other than exhibits specifically
incorporated by reference into such documents). All such requests shall be
directed to: CML Group, Inc., 524 Main Street, Acton, Massachusetts 01720,
Attention: Vice-President, Investor Relations, Telephone: (508) 264-4155.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION AND
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS 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 ITS DATE.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH IT
RELATES. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL.
-4-
<PAGE> 7
THE COMPANY
CML Group, Inc. (the "Company" or "CML") was incorporated under the laws
of the State of Delaware in 1969. The Company's principal executive offices are
located at 524 Main Street, Acton, Massachusetts 01720, and its telephone number
is (508) 264-4155.
CML is a specialty marketing company offering: (i) physical fitness and
exercise equipment and other health-related products and (ii) nature-,
gardening-, music- and science-related gifts and accessories. The Company
markets its products primarily through direct response advertising in print and
on television, through its mail order catalogs and through its own specialty
retail stores and kiosks. At January 31, 1996, the Company operated 286 retail
stores (excluding 116 stores operated by Britches of Georgetowne) and 265 mall
kiosks and had proprietary mail order customer lists containing approximately 3
million names. The Company's principal specialty retailing operations are
conducted under the trade names NordicTrack[registered trademark],
NordicAdvantage[trademark], The Nature Company[trademark],
Smith & Hawken[registered trademark] and Hear Music.
As part of its strategy to focus its resources on businesses which have
the greatest growth prospects and offer the greatest potential return on
investment, the Company decided during fiscal 1995 to sell its men's apparel
subsidiary, Britches of Georgetowne ("Britches"). Britches conducts its
operations under the trade names Britches of Georgetowne[registered trademark]
and Britches Great Outdoors[trademark]. Although the Company has recently
signed a letter of intent for the sale of substantially all of the assets of
Britches, no assurance can be given that a sale will occur. See "Recent
Events".
CML's continuing operations consist of two industry segments: (i)
NordicTrack designs, manufactures and markets high quality aerobic and anaerobic
exercise equipment to consumers primarily through direct response advertising in
print and on television, its own mail order catalogs and retail stores and
kiosks operated by its wholly-owned subsidiary, NordicAdvantage and (ii) the
Nature Company segment includes The Nature Company which markets a wide range of
products that enhance observation, understanding and appreciation of nature
through its own retail stores and catalogs; Smith & Hawken, a leading marketer
of gardening tools, plants and accessories; and Hear Music, an early stage
retail concept that sells music-related merchandise through its own retail
stores.
The Nature Company's merchandise categories include books, gifts,
children's educational toys, music, clothing, accessories, backyard and garden
items, minerals, sculpture, posters, optics, paper products, instruments, nature
video and audio tapes and CD-ROM's, and limited edition prints. Smith &
Hawken's merchandise categories include garden furniture, gardening tools,
plants, garden-related accessories, books, housewares and gifts and clothing.
Hear Music sells a limited selection of compact discs and tapes targeted
primarily at customers older than those targeted by most music stores.
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<PAGE> 8
RISK FACTORS
In addition to the other information contained elsewhere in this
Prospectus, the following factors should be considered carefully by potential
investors in evaluating an investment in the Shares offered hereby.
CONSUMER SPENDING. The success of the Company is influenced by a number
of economic conditions affecting disposable consumer income, such as employment
levels, business conditions, interest rates and taxation rates. Adverse changes
in these economic conditions may restrict consumer spending, thereby negatively
affecting the Company's results of operations.
COMPETITION. The markets in which the Company is engaged are highly
competitive.
NordicTrack competes with several companies which design, manufacture
and distribute physical fitness and exercise equipment, including ICON Health
and Fitness, Inc., Road Master Industries, Inc., Diversified Products Corp.,
Health Rider, Inc., Soloflex, Inc. and Consumer Direct, Inc. During the past
five years, NordicTrack's competitors have introduced several new and
competitive products at competitive prices. The future success of NordicTrack
depends in part upon its ability to introduce new and competitive products
successfully and on a timely basis.
Many of the competitors of The Nature Company, Smith & Hawken and Hear
Music are larger companies with greater financial resources, a greater selection
of merchandise and nationwide distribution, including a large number and wide
variety of specialty retail stores, discount stores and department stores. The
Nature Company primarily competes with Natural Wonders, Inc., a large specialty
retailer located in the San Francisco Bay Area with retail stores throughout the
United States and with smaller specialty retailers in local markets. In
addition, The Nature Company competes with other companies with mail order
catalogs and retail stores that sell items similar to those sold by The Nature
Company. These competitors include department stores, book stores, jewelry
stores, clothing stores and outdoor stores.
Smith & Hawken competes with mail order catalogs which sell gardening-
related merchandise such as Gardener's Eden, David Kay, Calyx & Corolla and
Gardener's Supply. Smith & Hawken also competes with independent garden stores
and plant nurseries in towns and cities throughout the United States.
Hear Music competes with larger companies selling pre-recorded music on
compact discs and tapes which have greater financial resources, a greater
selection of merchandise and nationwide distribution. Hear Music also competes
with smaller local and regional music stores.
SEASONALITY. The Company's businesses are seasonal with significant
amounts of retail sales in the second and third fiscal quarters. The Company
expects this seasonality to continue in the future. Because of this
seasonality, the Company's revenues and earnings have fluctuated and may
continue to fluctuate from quarter to quarter.
-6-
<PAGE> 9
ADVERTISING AND MARKETING PROGRAMS. The Company's success in the
markets in which it competes depends in part upon the effectiveness of
advertising and marketing programs of the Company. The inability of the Company
to periodically design and successfully execute new and effective advertising
and marketing programs could adversely affect the Company's operating results.
COSTS OF POSTAGE AND SHIPPING. Postage expenses associated with mailing
catalogs and shipping charges associated with distributing merchandise to
customers are significant factors in the operation of the Company's businesses.
Increases in postage or shipping costs could adversely affect the Company's
operating results.
ANTI-TAKEOVER EFFECT OF CERTAIN CHARTER AND BY-LAW PROVISIONS AND
SHAREHOLDER RIGHTS AGREEMENT. Certain provisions of Delaware law and of the
Company's Certificate of Incorporation could have the effect of making it more
difficult for a third party to acquire, or of discouraging a third party from
attempting to acquire, control of the Company. Such provisions could limit the
price that certain investors might be willing to pay in the future for shares of
Common Stock. Certain of these provisions could make it more difficult for
stockholders to effect certain corporate actions or could also have the effect
of delaying or preventing a change in control of the Company. The Company's
By-laws impose various procedural and other requirements which could make it
more difficult for stockholders to effect certain corporate actions. The rights
of the holders of Common Stock will be subject to, and may be adversely affected
by, the rights of the holders of any preferred stock that may be issued in the
future. The issuance of preferred stock, while providing desirable flexibility
in connection with possible acquisitions and other corporate purposes, could
have the effect of making it more difficult for a third party to acquire, or of
discouraging a third party from acquiring, a significant portion of the
outstanding Shares of voting stock of the Company. The Company has no present
plans to issue any shares of preferred stock. The Board of Directors adopted a
Shareholder Rights Agreement in 1988. While the primary purpose of the
Shareholder Rights Agreement is to enable stockholders to receive fair and equal
treatment in the event of any proposed acquisition of the Company, the
Shareholder Rights Agreement could make it more difficult for a third party to
acquire, and could discourage a third party from acquiring, the Company or a
large block of its capital stock.
INTELLECTUAL PROPERTY RIGHTS. The Company is subject to the risk of
adverse claims and litigation alleging infringement of intellectual property
rights. There can be no assurance that third parties will not assert
infringement claims in the future with respect to the Company's current or
future products or that any such claims will not require the Company to enter
into royalty arrangements or result in costly litigation. While the Company
believes that it currently has all licenses necessary to conduct its business,
no assurance can be given that additional licenses will not be required in the
future. Furthermore, no assurance can be given that, if any additional licenses
are required, such licenses could be obtained on commercially reasonable terms.
-7-
<PAGE> 10
RECENT EVENTS
In February 1996, NordicTrack agreed to a proposed consent agreement
with the Federal Trade Commission ("FTC") to settle allegations that it made
false and unsubstantiated weight loss and weight maintenance claims in
advertising its cross-county ski exercise machines. The FTC alleged that
NordicTrack based these claims on studies with various methodological flaws.
The proposed consent agreement would prohibit NordicTrack from misrepresenting
the existence or results of any study or survey relating to weight loss and
making certain claims with respect to its exercise equipment without reliable
supporting evidence. The proposed consent agreement will be published in the
Federal Register and will be subject to public comment for 60 days, after which
the FTC will decide whether to make it final. No civil penalties are expected
to be imposed or corrective advertisements required by the FTC as a result of
the proposed consent agreement.
On or about February 23, 1996, an alleged purchaser of a NordicTrack
cross-country ski exercise machine filed a Class Action Complaint, entitled
ELISSA CRESPI, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED V.
NORDICTRACK, INC., against NordicTrack in the Supreme Court of the State of New
York, County of New York (the "Crespi Complaint"). On or about February 26,
1996, another alleged purchaser of a cross-country ski exercise machine filed a
Class Action Complaint in the same court, entitled WENDY PENEL, ON BEHALF OF
HERSELF AND ALL OTHERS SIMILARLY SITUATED, V. NORDICTRACK, INC. (the "Penel
Complaint"). The Crespi Complaint alleges that NordicTrack made false and
misleading claims concerning the weight-loss of persons using its ski-exerciser
and thereby defrauded its customers, breached warranties and violated Section
349 of the New York General Business Law. The Penel Complaint alleges that
NordicTrack misrepresented the results of a weight-loss study and made
unsubstantiated claims regarding weight loss and/or weight maintenance benefits
from the use of NordicTrack's cross-country ski exercise machines. The Penel
Complaint asserts claims of negligent misrepresentation, breach of an express
warranty, and common law fraud. Each plaintiff seeks to represent a class
consisting of all persons in the United States who purchased NordicTrack ski
exercisers. The plaintiff in the Crespi Complaint seeks for herself and the
alleged class unspecified actual and punitive damages, rescission, attorneys'
fees, costs and an order requiring NordicTrack to make corrective disclosures.
The plaintiff in the Penel Complaint seeks restitution of all amounts paid by
her and the alleged class members for NordicTrack cross-country ski exercise
machines, together with interest, attorneys' fees, costs, and any additional
and consequential damages for injuries suffered by the plaintiff and alleged
class members. NordicTrack believes it has meritorious defenses to these
complaints and intends to vigorously contest these lawsuits. These lawsuits
are in the earliest stages and the Company is unable to determine the
likelihood and possible impact on the Company of unfavorable outcomes.
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<PAGE> 11
Although the Company has no outstanding bank borrowings, the Company is
in violation of certain covenants under its existing $55 million credit facility
and is restricted from making future borrowings under such facility. The
Company's lenders, however, continue to issue letters of credit on behalf of the
Company and the Company had letters of credit outstanding in an aggregate amount
of $20,484,000 as of January 27, 1996. The Company has signed a commitment
letter with two banks for a new three-year $100 million revolving credit
facility which will be secured by the assets of the Company. The closing of the
new facility is subject to completion of due diligence and final documentation.
The Company has signed a letter of intent for the sale of substantially
all of the assets of Britches at a purchase price of $13,500,000 in cash plus
the assumption of liabilities, subject to certain adjustments. In connection
with the planned sale of Britches, the Company recorded an additional provision
for loss on disposal, in the second quarter of fiscal 1996, of $15,615,000, net
of an income tax benefit of $8,408,000. The sale is subject to the negotiation
and execution of a definitive purchase agreement and there can be no assurance
that such sale will be completed.
In January 1995, William Wilkinson, filed a demand for arbitration and
statement of claim alleging that NordicTrack breached the terms of a licensing
and product development agreement by failing to compensate him with royalties
for certain design features of its WalkFit treadmill and certain similar
products. Included in the Company's loss from continuing operations for the
second quarter of fiscal 1996 is a $4,000,000 pre-tax charge for settlement of
this claim in January 1996.
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<PAGE> 12
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Common Stock
by the Selling Stockholder.
<TABLE>
THE SELLING STOCKHOLDER
The following table sets forth the name and the number of shares of
Common Stock beneficially owned by the Selling Stockholder as of the date of
this Prospectus, the number of the shares to be offered by the Selling
Stockholder and the number and percentage of shares to be owned beneficially by
the Selling Stockholder if all of the shares offered hereby by the Selling
Stockholder are sold as described herein.
<CAPTION>
PERCENTAGE
NUMBER OF NUMBER OF NUMBER OF OF SHARES
SHARES OF SHARES OF SHARES OF OF COMMON
COMMON COMMON COMMON STOCK STOCK
NAME OF STOCK STOCK BENEFICIALLY BENEFICIALLY
SELLING BENEFICIALLY OFFERED OWNED AFTER OWNED AFTER
STOCKHOLDER OWNED HEREBY OFFERING OFFERING
- ----------- ----- --------- ------------ ------------
<S> <C> <C> <C> <C>
William Wilkinson 352,941 352,941 0 0%
</TABLE>
-10-
<PAGE> 13
PLAN OF DISTRIBUTION
Shares of Common Stock covered hereby may be offered and sold in private
transactions involving principals, in transactions involving brokers, or by both
methods. Sales through brokers may be made by any method of trading authorized
by any stock exchange on which the shares of Common Stock covered hereby may be
listed, including block trading in negotiated transactions. Without limiting
the foregoing, such brokers may act as dealers by purchasing any or all of the
shares covered by this Prospectus, either as agents for others or as principals
for their own accounts, and reselling such shares pursuant to this Prospectus.
Sales of shares are, in general, expected to be made at the market price
prevailing at the time of each such sale; however, prices in negotiated
transactions may differ considerably. The Selling Stockholder has advised the
Company that it does not anticipate paying any consideration, other than usual
and customary broker's commissions, in connection with sales of the shares. The
Selling Stockholder is acting independently of the Company in making decisions
with respect to the timing, manner and size of each sale.
In offering the shares of Common Stock covered by this Prospectus, the
Selling Stockholder and any broker-dealers who execute sales for such Selling
Stockholder, may be considered to be "underwriters" within the meaning of the
Securities Act, and any profits realized by the Selling Stockholder and the
compensation of such broker-dealers may be deemed to be underwriting discounts
and commissions.
The Selling Stockholder has advised the Company that during such time as
the Selling Stockholder may be engaged in a distribution of Common Stock
included herein the Selling Stockholder will comply with 10b-6 and 10b-7 under
the Exchange Act and, in connection therewith, the Selling Stockholder has
agreed not to engage in any stabilization activity in connection with the
Company's securities, to furnish to each broker through which Common Stock
included herein may be offered copies of this Prospectus, and not to bid for or
purchase any securities of the Company or attempt to induce any person to
purchase any of the Company's securities except as permitted under the Exchange
Act. The Selling Stockholder has also agreed to inform broker-dealers through
whom sales may be made hereunder and to inform the Company when the distribution
of the shares held by the Selling Stockholder is completed.
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<PAGE> 14
LEGAL MATTERS
The validity of the shares offered hereby will be passed upon for the
Company by Hale and Dorr, a partnership including professional corporations, 60
State Street, Boston, Massachusetts 02109. Paul P. Brountas, a partner in the
firm of Hale and Dorr, is the Secretary of the Company.
EXPERTS
The consolidated financial statements and the related supplemental
schedules incorporated in this Prospectus by reference from the Company's Annual
Report on Form 10-K for the fiscal year ended July 31, 1995, have been audited
by Deloitte & Touche LLP, independent public accountants, as stated in their
report, which is incorporated herein by reference, and have been so incorporated
in reliance upon such report given upon their authority as experts in accounting
and auditing.
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<PAGE> 15
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
<TABLE>
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses to be borne by the
registrant in connection with the sale and distribution of the securities being
registered. All amounts shown are estimates except the Securities and Exchange
Commission registration fee.
<CAPTION>
<S> <C>
Filing fee - Securities and
Exchange Commission............... $ 449
New York Stock Exchange
Listing Fee....................... 14,750
Legal fees and expenses............. 4,000
Accounting fees and expenses........ 2,000
Blue Sky fees and expenses.......... --
Printing expenses................... --
Miscellaneous expenses.............. 301
-------
Total Expenses...................... $21,500
=======
</TABLE>
II-1
<PAGE> 16
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, as amended,
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, as amended,
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 Company's by-laws, as amended, requires the Company to
indemnify each person who is or was a director or officer of the Company 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 Company's certificate of incorporation requires
the Company 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 Company.
Article TENTH of the Company's certificate of incorporation provides
that no director of the Company shall be liable for monetary damages for any
breach of fiduciary duty, except to the extent that the Delaware General
Corporation Law prohibits the elimination or limitation of liability of
directors for breach of fiduciary duty.
<TABLE>
ITEM 16. LIST OF EXHIBITS.
<CAPTION>
<S> <C>
4.1 Specimen Certificate for shares of Common
Stock of the Company filed as Exhibit 4 to the
</TABLE>
II-2
<PAGE> 17
<TABLE>
<S> <C>
Company's Registration Statement on Form S-1,
File No. 2-86828 and incorporated herein by
reference.
4.2 Form of Rights Certificate (filed as Exhibit B
to Exhibit 1 to the Company's Form 8-A filed
July 12, 1988 and incorporated herein by
reference).
4.3 Rights Agreement dated as of June 28, 1988
between the Company and The First National
Bank of Boston (filed as Exhibit 1 to the
Company's Form 8-A filed July 12, 1988 and
incorporated herein by reference).
4.4 Form of Certificate of Designation of Series A
Junior Participating Preferred Stock (filed as
Exhibit A to Exhibit 1 to the Company's
Form 8-A filed July 12, 1988 and incorporated
herein by reference).
5 Opinion of Hale and Dorr.
23.1 Consent of Hale and Dorr, included in
Exhibit 5 filed herewith.
23.2 Consent of Deloitte & Touche LLP.
24 Power of Attorney (See page II-5 of this
Registration Statement).
- -------------------
</TABLE>
ITEM 17. UNDERTAKINGS.
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, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any derivation from the low or high and of the estimated
maximum offering range
II-3
<PAGE> 18
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(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 Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are incorporated by reference in this Registration
Statement.
(2) That, for the purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at the 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.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Corporation pursuant to the indemnification provisions described herein, or
otherwise, the Company 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 Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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.
II-4
<PAGE> 19
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-3 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 11th
day of March, 1996.
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, Glenn E. Davis 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-3 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.
II-5
<PAGE> 20
<TABLE>
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.
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <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 )
)
)
Vice President, Finance )
/s/ Glenn E. Davis Chief Financial Officer and )
- ----------------------------- Treasurer (Principal )
Glenn E. Davis Financial Officer) )
)
)
)
/s/ Nancy S. Wang Vice President and Controller ) March 11, 1996
- ----------------------------- (Principal Accounting Officer))
Nancy S. Wang )
)
)
/s/ Howard H. Callaway Director )
- ----------------------------- )
Howard H. Callaway )
)
)
/s/ Thomas H. Lenagh Director )
- ----------------------------- )
Thomas H. Lenagh )
)
)
/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>
II-6
<PAGE> 1
EXHIBIT 5
HALE AND DORR
60 State Street
Boston, MA 02109
March 11, 1996
CML Group, Inc.
524 Main Street
Acton, MA 01720
Ladies and Gentlemen:
We have assisted in the preparation of the Registration Statement on
Form S-3 (the "Registration Statement") filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
registration for resale by William Williamson of 352,941 shares of common
stock, $0.10 par value per share (the "Shares"), of CML Group, Inc., a Delaware
corporation (the "Company").
We have examined the Certificate of Incorporation and By-Laws of the
Company and all amendments thereto and have examined and relied on the
originals, or copies certified to our satisfaction, of such records of
meetings, written actions in lieu of meetings, or resolutions adopted at
meetings, of the directors of the Company and such other documents and
instruments as in our judgment are necessary or appropriate to enable us to
render the opinions expressed below.
In our examination of the foregoing documents, we have assumed (i) the
genuineness of all signatures and the authenticity of all documents submitted
to us as originals, (ii) the conformity to the originals of all documents
submitted to us as certified or photostatic copies, and (iii) the authenticity
of the originals of the latter documents.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly and validly authorized and when issued to William
Williamson will be validly issued and outstanding, fully paid and non-
assessable.
Paul P. Brountas, Esq., a partner of this Firm, is the Secretary of the
Company.
We hereby consent to the use of our name in the Registration Statement
and in the related Prospectus under the caption "Legal Matters" and to the
filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
HALE AND DORR
<PAGE> 1
Exhibit 23.2
------- ----
INDEPENDENT AUDITORS' CONSENT
- -----------------------------
We consent to the incorporation by reference in this Registration Statement of
CML Group, Inc. on Form S-3 of our report dated September 27, 1995 appearing in
the Annual Report on Form 10-K of CML Group, Inc. for the year ended July 31,
1995 and to the reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
Deloitte & Touche LLP
Boston, Massachusetts
March 11, 1996
