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As filed with the Securities and Exchange Commission on January 26, 1998
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ARBOR DRUGS, INC.
(Exact name of registrant as specified in its charter)
MICHIGAN 38-2054345
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3331 WEST BIG BEAVER, TROY, MICHIGAN 48084
(Address of Principal Executive Offices) (Zip Code)
ARBOR DRUGS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
GILBERT C. GERHARD
SENIOR VICE PRESIDENT - FINANCE AND ADMINISTRATION
ARBOR DRUGS, INC.
3331 WEST BIG BEAVER
TROY, MICHIGAN 48084
(Name and address of agent for service)
(248) 643-9420
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered per share offering price fee
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<S> <C> <C> <C> <C>
Common Stock, par 750,000 shares (1) $ 19.1875 (2) $ 14,390,625 (2) $ 4,245.23
value $.01 per share (3)
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(1) The amount being registered reflects additional shares of Common Stock
which became available for purchase under the Registrant's Employee
Stock Purchase Plan (the "Plan") as a result of a 3 for 2 stock dividend
declared subsequent to the amendment to the Plan reflected in this
Registration Statement. This Registration Statement shall also cover any
additional shares of Common Stock which become available for purchase under
the Plan by reason of any stock dividend, stock split, recapitalization or
similar transaction effected without receipt of consideration which results
in an increase in the number of outstanding shares of Common Stock.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), solely for the purpose of computing the
registration fee and based on the average of the high and low prices of the
Common Stock as quoted on The Nasdaq National Market on January 16, 1998.
(3) In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the Plan.
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The contents of the Form S-8 Registration Statement, File No.
33-54141, of Arbor Drugs, Inc. (the "Registrant") are incorporated in this Form
S-8 Registration Statement by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference in this
registration statement:
1. The Annual Report of the Registrant on Form 10-K for the
fiscal year ended July 31, 1997, as filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
2. The Quarterly Report of the Registrant on Form 10-Q for the
quarter ended October 31, 1997.
3. The description of the Common Stock, par value $.01 per share
(the "Common Stock"), of the Registrant, which is contained in the
Registrant's Registration Statement on Form 8-A, filed with the
Commission on April 29, 1986, pursuant to Section 12 of the Exchange
Act (Registration No. 33-04378), 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 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
part hereof from the date of filing of such documents.
ITEM 8. EXHIBITS.
4.1 Restated Articles of Incorporation of the Registrant,
incorporated by reference to Exhibit 3.1 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended July 31,
1988
4.2 Certificate of Amendment to the Articles of Incorporation of
the Registrant
4.3 Bylaws of the Registrant, incorporated by reference to Exhibit
3.2 to the Registrant's Registration Statement on Form S-1,
File No. 33-04378
2
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4.4 Arbor Drugs, Inc. Employee Stock Purchase Plan, incorporated
by reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-8, File No. 33-54141
4.5 First Amendment to Arbor Drugs, Inc. Employee Stock Purchase
Plan
4.6 Second Amendment to Arbor Drugs, Inc. Employee Stock Purchase
Plan
5.1 Opinion of Honigman Miller Schwartz and Cohn
23.1 Consent of Coopers & Lybrand LLP
23.2 Consent of Honigman Miller Schwartz and Cohn (included in
Exhibit 5.1)
24.1 Powers of Attorney (included after the signature of the
Registrant contained on page 4 of this Registration Statement)
3
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Troy, State of Michigan, on January 26, 1998.
ARBOR DRUGS, INC.
By: /s/ Gilbert C. Gerhard
--------------------------------
Gilbert C. Gerhard
Its: Senior Vice President -
Finance and Administration
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and directors of ARBOR DRUGS, INC., a Michigan corporation (the "Company"),
hereby constitutes and appoints Gilbert C. Gerhard, the true and lawful
attorney-in-fact and agent of the undersigned, with the power of substitution
for him in any and all capacities, with full power and authority in said
attorney-in-fact and agent, to sign, execute and affix his seal thereto and
file the proposed registration statement on Form S-8 to be filed by the Company
under the Securities Act of 1933, as amended, which registration statement
relates to the registration and issuance of the Company's Common Stock,
pursuant to the Arbor Drugs, Inc. Employee Stock Purchase Plan, and any of the
documents relating to such registration statement, any and all amendments to
such registration statement, including any amendment thereto changing the
amount of securities for which registration is being sought, and any
post-effective amendment, with all exhibits and any and all documents required
to be filed with respect thereto with any regulatory authority; granting unto
said attorney 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 in order to
effectuate the same as fully to all intents and purposes as he might or could
do if personally present, hereby ratifying and confirming all that said
attorney-in-fact and agent may lawfully do or cause to be done by virtue
hereof.
4
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Eugene Applebaum Chairman of the Board, January 26, 1998
- ------------------------------------ Chief Executive Officer
Eugene Applebaum and President
(Principal Executive Officer)
/s/ Markus M. Ernst Executive Vice President, January 26, 1998
- ------------------------------------ Chief Operating Officer
Markus M. Ernst and Director
/s/ Gilbert C. Gerhard Senior Vice President - January 26, 1998
- ------------------------------------ Finance and Administration,
Gilbert C. Gerhard Chief Financial Officer,
Treasurer, Secretary and Director
(Principal Financial and
Accounting Officer)
/s/ Spencer M. Partrich Director January 26, 1998
- ------------------------------------
Spencer M. Partrich
/s/ Laurie M. Shahon Director January 26, 1998
- ------------------------------------
Laurie M. Shahon
/s/ Samuel Valenti III Director January 26, 1998
- ------------------------------------
Samuel Valenti III
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5
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Arbor
Drugs, Inc. Employee Stock Purchase Plan 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 Troy, State of
Michigan, on January 26, 1998.
ARBOR DRUGS, INC. EMPLOYEE
STOCK PURCHASE PLAN
By: /s/ Leonard Cohen
------------------------------
Leonard Cohen
Its: Plan Administrator
6
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
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4.1 Restated Articles of Incorporation of the Registrant, as amended,
incorporated by reference to Exhibit 3.1 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended July 31, 1988
4.2 Certificate of Amendment to the Articles of Incorporation of the
Registrant
4.3 Bylaws of the Registrant, incorporated by reference to Exhibit 3.2
to the Registrant's Registration Statement on Form S-1, File
No. 33-04378
4.4 Arbor Drugs, Inc. Employee Stock Purchase Plan, incorporated by
reference to Exhibit 4.1 to the Registrant's Registration Statement
on Form S-8, File No. 33-54141
4.5 First Amendment to Arbor Drugs, Inc. Employee Stock Purchase Plan
4.6 Second Amendment to Arbor Drugs, Inc. Employee Stock Purchase Plan
5.1 Opinion of Honigman Miller Schwartz and Cohn
23.1 Consent of Coopers & Lybrand LLP
23.2 Consent of Honigman Miller Schwartz and Cohn (included in Exhibit 5.1)
24.1 Powers of Attorney (included after the signature of the
Registrant contained on page 4 of this Registration Statement)
7
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C&S-515 (REV. 8/96) EXHIBIT 4.2
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MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES
CORPORATION, SECURITIES AND LAND DEVELOPMENT BUREAU
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<S> <C>
(Date Received) (For Bureau Use Only)
Dec 11 1997
FILED
DEC 11 1997
Name Administrator
Gayle Aiken MI DEPT. OF CONSUMER & INDUSTRY SERVICES
Honigman Miller Schwartz and Cohn CORPORATION, SECURITIES & LAND DEVELOPMENT BUREAU
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Address
2290 First National Building
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City State Zip Code
Detroit MI 48226
EFFECTIVE DATE:
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Document will be returned to the name and address you enter above.
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CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
FOR USE BY DOMESTIC PROFIT AND NONPROFIT CORPORATIONS
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit
corporations), or Act 162, Public Acts of 1982 (nonprofit corporations), the
undersigned corporation executes the following certificate:
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1. The name of the corporation or limited liability company is: Arbor Drugs, Inc.
2. The identification number assigned by the Bureau is: / 1 / 0 / 2 / - / 4 / 2 / 4 /
--- --- --- --- --- ---
3. The location of the registered office is: 3331 West Big Beaver Road, Troy, Michigan 48084
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4. Article III of the Articles of Incorporation is hereby amended to read in its entirety as
follows:
ARTICLE III
The total authorized capital stock is:
1. Common Shares 100,000,000 Par Value Per Share $.01
Preferred Shares 2,000,000 Par Value Per Share $.01
2. A statement of all or any of the relative rights, preferences and limitations of the shares of each
class is as follows: The Board of Directors may cause the corporation to issue preferred stock in
one or more series, each series to bear a designation and to have such relative rights and
preferences as shall be prescribed by resolution of the Board. Such resolution, when filed, shall
constitute amendments to these Restated Articles of Incorporation.
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5. (For amendments adopted by unanimous consent of incorporators before the
first meeting of the board of directors of trustees.)
The foregoing amendment to the Articles of Incorporation was duly adopted on
the _____ day of _________, ____, in accordance with the provisions of the
Act by the unanimous consent of incorporator(s) before the first meeting of
the Board of Directors or Trustees.
Signed this _____ day of ____________ , ____
_____________________________________ ____________________________________
(Signature) (Signature)
_____________________________________ ____________________________________
(Type or Print Name and Title) (Type or Print Name and Title)
6. (For profit corporations, and for nonprofit corporations whose articles
state the corporation is organized on a stock or on a membership basis.)
The foregoing amendment to the Articles of Incorporation was duly adopted on
the 2nd day of December, 1997 by the shareholders if a profit corporation,
or by the shareholders or members if a nonprofit corporation (check one of
the following)
[X] at a meeting. The necessary votes were cast in favor of the amendment.
[ ] by written consent of the shareholders or members having not less than
the minimum number of votes required by statute in accordance with
Section 407(l) of and (2) of the Act if a nonprofit corporation, or
Section 407(l) of the Act if a profit corporation. Written notice to
shareholders or members who have not consented in writing has been
given. (Note: Written consent by less than all of the shareholders or
members is permitted only if such provision appears in the Articles of
Incorporation.)
[ ] by written consent of all the shareholders or members entitled to vote
in accordance with Section 407(3) of the Act if a nonprofit
corporation, or Section 407(2) of the Act if a profit corporation.
Signed this 9th day of December, 1997
By /s/ Gilbert C. Gerhard
----------------------------------------------------
Gilbert C. Gerhard,
Senior Vice President-Finance and Administration
7. (For a nonprofit corporation whose articles state the corporation is
organized on a directorship basis.)
The foregoing amendment to the Articles of Incorporation was duly adopted on
the _____ day of ___________, ____ by the directors of a nonprofit
corporation whose Articles of Incorporation state it is organized on a
directorship basis (check one of the following)
[ ] at a meeting. The necessary votes were cast in favor of the amendment.
[ ] by written consent of all the directors pursuant to Section 525 of the
Act.
Signed this _____ day of ___________ , ____
By
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(Signature of President,
Vice-President, Chairperson or
Vice-Chairperson)
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(Type or Print Name and Title)
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EXHIBIT 4.5
FIRST AMENDMENT
TO
ARBOR DRUGS, INC.
EMPLOYEE STOCK PURCHASE PLAN
WHEREAS, Arbor Drugs, Inc. (the "Company") has established and maintains
the Arbor Drugs, Inc. Employee Stock Purchase Plan, originally effective as
of May 25, 1994 (the "Plan");
WHEREAS, pursuant to Section 16 of the Plan, the Compensation Committee of
the Company's Board of Directors (the "Committee") has the right to amend the
Plan at any time;
WHEREAS, the Committee desires to amend the Plan to allow employees to
specify contribution amounts in either percentage amounts or dollar amounts.
NOW, THEREFORE, by resolution of the Committee, the Plan is hereby amended
in the following respect:
Section 6(a) of the Plan is hereby amended in its entirety to read as
follows:
(a) In order to purchase Common Stock, an employee must
indicate on the Participation Form the contribution amount (in
either a percentage amount or dollar amount) he or she wishes to
authorize the Company to deduct at regular payroll intervals during
each Purchase Period, in either integral percentage amounts ranging
from 1% to 25% of such Participant's Base Pay for the applicable
payroll period (but such percentage amount shall not equal less than
$10.00 per payroll period) or in dollar amounts equal to multiples
of 10, ranging from a minimum of $10.00 per payroll period up to a
maximum of 25% of such Participant's Base Pay for the applicable
payroll period. The Participation Form will include authorization
for the Company to make payroll deductions from the Participant's
Base Pay.
Dated: June 21, 1995
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EXHIBIT 4.6
SECOND AMENDMENT
TO
ARBOR DRUGS, INC.
EMPLOYEE STOCK PURCHASE PLAN
WHEREAS, Arbor Drugs, Inc. (the "Company") has established and maintains
the Arbor Drugs, Inc. Employee Stock Purchase Plan, originally effective as of
May 25, 1994 (the "Plan");
WHEREAS, pursuant to Section 16 of the Plan, the Compensation Committee of
the Company's Board of Directors (the "Committee") has the right to amend the
Plan at any time;
WHEREAS, the shareholders of the Company have approved increasing by
500,000 the number of shares of the Company's common stock available for
purchase under the Plan; and
WHEREAS, the Committee desires to amend the Plan to increase the number of
shares available for purchase.
NOW, THEREFORE, by resolution of the Committee, as approved by the
Company's shareholders, the Plan is hereby amended in the following respect:
Section 4(a) of the Plan is hereby amended in its entirety to read as
follows:
(a) The Plan covers an aggregate of 1,175,000 shares of Common
Stock (subject to adjustment as provided in Section 15 hereof), which
may be authorized but unissued shares, reacquired shares or shares
bought on the open market. If any Purchase Right that shall have been
granted shall expire or terminate for any reason without having been
exercised in full, the unpurchased shares of Common Stock shall again
become available for purposes of the Plan, unless the Plan shall have
been terminated.
Dated as of December 2, 1997
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EXHIBIT 5.1
JANUARY 26, 1998
Arbor Drugs, lnc.
3331 West Big Beaver
Troy, Michigan 48084
Ladies and Gentlemen:
We have represented Arbor Drugs, Inc., a Michigan corporation (the
"Company"), in connection with the preparation and filing with the Securities
and Exchange Commission (the "Commission") of a Registration Statement on Form
S-8 (the "Registration Statement"), for registration under the Securities Act
of 1933, as amended (the "Securities Act"), of (i) a maximum of 750,000 shares
of the Company's common stock, par value $.01 per share (the "Common Stock"),
issued or to be issued pursuant to the Arbor Drugs , Inc. Employee Stock
Purchase Plan (the "Plan") and (ii) an indeterminate amount of interests in the
Plan.
Based upon our examination of such documents and other matters as we deem
relevant, it is our opinion that the Common Stock to be offered by the Company
under the Plan and the interests in the Plan to be offered by the Company
pursuant to the Registration Statement have been duly authorized and, when
issued and sold by the Company in accordance with the Plan, will be legally
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit hereby that we
come within the category of persons whose consent is required under Section 7
of the Securities Act or the Rules and Regulations of the Commission
thereunder.
Very truly yours,
/S/ Honigman Miller Schwartz and Cohn
HONIGMAN MILLER SCHWARTZ AND COHN
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Arbor Drugs, Inc. on Form S-8, relating to the Arbor Drugs, Inc. Employee Stock
Purchase Plan, of our report dated September 26, 1997, on our audits of the
consolidated financial statements of Arbor Drugs, Inc. and Subsidiaries, as of
July 31, 1997 and 1996, and for the years ended July 31, 1997, 1996 and 1995,
which report is included in the Annual Report on Form 10-K for the year ended
July 31, 1997, filed by Arbor Drugs, Inc. with the Securities and Exchange
Commission.
/S/ Coopers & Lybrand L.L.P.
Detroit, Michigan
January 26, 1998
