<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY , 1995
REGISTRATION NO. * 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FORSTMANN & COMPANY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
GEORGIA 58-1651326
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1185 AVENUE OF THE AMERICAS 10036
NEW YORK, NEW YORK (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
FORSTMANN & COMPANY, INC.
COMMON STOCK INCENTIVE PLAN
CHRISTOPHER L. SCHALLER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
FORSTMANN & COMPANY, INC.
1185 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 642-6900
(NAME, ADDRESS AND TELEPHONE NUMBER OF
AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE OFFERING PRICE AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE(2) OFFERING PRICE(2) FEE(2)
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<S> <C> <C> <C> <C>
Common Stock, $.001 par
value.................. 250,000 shares(1) $5.69 $1,422,500 $490.52
</TABLE>
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(1) Plus an indeterminate number of additional shares which may be offered and
issued to prevent dilution resulting from stock splits, stock dividends or
similar transactions as provided in the Forstmann & Company, Inc. Common
Stock Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 on the basis of the average of the high ($6.00) and
low ($5.375) prices paid for a share of the Company's Common Stock as
reported on the NASDAQ National Market System on February 3, 1995.
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* As permitted by Rule 429 under the Securities Act of 1933, the prospectus
related to this Registration Statement also covers securities registered under
Registration Statement No. 33-38520 on Form S-8.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Forstmann & Company, Inc. (the "Company") incorporates herein by reference
the following documents:
(i) its Annual Report on Form 10-K for the fiscal year ended October 30,
1994;
(ii) the description of the Company's Common Stock contained in its
registration statement on Form 8-A dated February 12, 1992, and any
amendments or reports filed for the purpose of updating such
description; and
(iii) the Company's Registration Statement on Form S-8 filed on December
16, 1992 (Registration No. 33-38520).
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment indicating that all securities offered hereunder
have been sold or deregistering all such securities then remaining unsold, are
deemed to be incorporated by reference in this Registration Statement, and to
be a part hereof from the date of filing of such documents. Any 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
Registration Statement to the extent that a statement contained herein, or in
any other subsequently filed document that also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
statement contained in this Registration Statement shall be deemed to be
modified or superseded to the extent that a statement contained in a
subsequently filed document which 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 Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated under the laws of the State of Georgia. The
Company's Articles of Incorporation provide that, to the fullest extent
permitted by Georgia law (as it exists or may be amended), a director of the
Company will not be liable to the Company or any of its shareholders for
damages caused by the director's action or inaction in his capacity as a
director, provided the director acted in good faith and in a manner which he
believed to be in the best interests of the Company.
Section 14-2-851 of the Georgia Business Corporation Code (the "GBCC")
provides that a corporation may indemnify or obligate itself to indemnify an
individual made a party to a proceeding because he is or was a director against
liability incurred in the proceeding if he acted in a manner he believed in
good faith to be in or not opposed to the best interests of the corporation
and, in the case of any criminal proceeding, he had no reasonable cause to
believe his conduct was unlawful. Under the GBCC, a director's conduct with
respect to an employee benefit plan for a purpose he believed in good faith to
be in the interests of the participants in and beneficiaries of the plan is
conduct that satisfies the requirements of the GBCC. The GBCC further provides
that the termination of a proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not
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meet the standard of conduct required under the GBCC. Under the GBCC, a
corporation may not indemnify a director in connection with a proceeding by or
in the right of the corporation in which the director was adjudged liable to
the corporation or in connection with any other proceeding in which he was
adjudged liable on the basis that personal benefit was improperly received by
him. Indemnification permitted under the GBCC in connection with a proceeding
by or in the right of a corporation is limited to reasonable expenses incurred
in connection with the proceeding.
In addition, under the GBCC, unless limited by its articles of incorporation,
to the extent that a director of a corporation has been successful, on the
merits or otherwise, in the defense of any proceeding to which he was a party,
or in defense of any claim, issue, or matter therein, because he is or was a
director of the corporation, the corporation shall indemnify the director
against reasonable expenses incurred by him in connection therewith. The
Company's Articles of Incorporation have no such limitation.
Section 14-2-857 of the GBCC provides that, unless a corporation's articles
of incorporation provide otherwise, an officer of a corporation who is not a
director is entitled to mandatory indemnification to the extent that such
officer has been successful, on the merits or otherwise, in the defense of any
proceeding to which he is a party, or in defense of any claim, issue or matter
therein, because he is or was an officer of the corporation. In addition, a
corporation may indemnify and advance expenses to an officer, employee or agent
who is not a director to the extent it is consistent with public policy,
provided by its articles of incorporation, by-laws, general or specific action
of its board of directors or contract. The Company's Articles of Incorporation
have no such limitation.
Article X of the Amended and Restated By-Laws of the Company (the "By-Laws")
provides that each director or officer of the Company, and each person who at
its request has served as an officer or director of another corporation,
partnership, joint venture, trust or other enterprise will be indemnified by
the Company against those expenses which are allowed by the laws of the State
of Georgia and which are reasonably incurred in connection with any action,
suit or proceeding, pending or threatened, in which such person may be involved
by reason of his being or having been a director or officer of the Company or
of such other enterprises. Such indemnification is required to be made only in
accordance with the laws of the State of Georgia and subject to the conditions
prescribed above.
The By-Laws further provide that the Company may purchase and maintain
insurance on behalf of any such directors and officers against any liabilities
asserted against such persons whether or not the Company would have the power
to indemnify such directors and officers against such liability under the laws
of the State of Georgia. If any expenses or other amounts are paid by way of
indemnification, other than by court order, action by shareholders or by an
insurance carrier, the Company is required to provide notice of such payment to
its shareholders in accordance with the provisions of the laws of the State of
Georgia.
On February 7, 1994, the Company approved indemnity agreements with each of
its directors and certain of its executive officers, which provides that the
indemnitee will be entitled to receive indemnification to the full extent
permitted by law for all expenses, judgements, fines, penalties and settlement
payments incurred by the indemnitee in actions brought against the indemnitee
in connection with any act taken in the indemnitee's capacity, and within the
indemnitee's scope of authority, as a director or executive officer of the
Company. Such indemnity agreements also require the Company to maintain its
current level of directors' and officers' liability insurance for so long as
the indemnitee may be subject to any possible, threatened or pending action,
except to the extent that the cost of such insurance is more than 150% of the
annualized cost thereof in fiscal year 1994.
The Company's Articles of Incorporation include a provision eliminating
liability for monetary damages for any breach of fiduciary or other duty as a
director, except for (1) any appropriation, in violation of his duties, of any
business opportunity of the Company, (2) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3) any
transaction for which the director received an improper personal benefit, and
(4) certain unlawful distributions. The Company's By-Laws provide that the
II-2
<PAGE>
directors and the officers of the Company will be indemnified against all
expenses which are allowed by the laws of the State of Georgia and which are
reasonably incurred in connection with any action, suit or proceeding, pending
or threatened, in which such person may be involved by reason of his being or
having been a director or officer of the Company. The foregoing provisions of
the Articles of Incorporation may reduce the likelihood of derivative
litigation against the Company's directors and may discourage or deter
shareholders or management from instituting a lawsuit against the Company's
directors for breaches of their fiduciary duties, even though such an action,
if successful, might otherwise have benefitted the Company and its
shareholders.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following Exhibits are filed as part of this Registration Statement,
including those incorporated by reference to previous filings as indicated:
<TABLE>
<C> <S>
* 3(i).1 --Articles of Restatement setting forth the Amended and Restated
Articles of Incorporation of the Company, as filed with the
Secretary of State of the State of Georgia on November 19, 1990
(filed as Exhibit 3(i).1 to the Company's Quarterly Report on Form
10-Q for the quarter ended July 31, 1994 (the "Third Quarter Form
10-Q")).
* 3(i).2 --Articles of Correction, as filed with the Secretary of State of
the State of Georgia on December 18, 1990 (filed as Exhibit 3(i).2
to the Third Quarter Form 10-Q).
* 3(i).3 --Articles of Merger of Forstmann Georgia Corp. and the Company, as
filed with the Secretary of State of the State of Georgia on March
3, 1992 (filed as Exhibit 3(i).3 to the Third Quarter Form 10-Q).
* 3(i).4 --Articles of Amendment, as filed with the Secretary of State of
the State of Georgia on April 8, 1994 (filed as Exhibit 3(i).4 to
the Third Quarter Form 10-Q).
* 3(ii) --Amended and Restated By-Laws of the Company (March 30, 1994)
(filed as Exhibit 3(ii) to the Third Quarter Form 10-Q).
5 --Opinion of Troutman Sanders.
23.1 --Consent of Deloitte & Touche LLP to the use of their report as
incorporated by reference in this Registration Statement.
23.2 --Consent of Troutman Sanders (contained in Exhibit 5).
</TABLE>
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* Incorporated by reference to the previous filings as indicated.
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;
(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 the registrant need not file a post-effective
amendment to include the information required to be included by
subsection (i) or (ii) if such information is contained in
II-3
<PAGE>
periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 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 of 1933 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
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 Act and
will be governed by the final adjudication of such issue.
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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 New York, State of New York, on February 8, 1995.
FORSTMANN & COMPANY, INC.
/s/ Christopher L. Schaller
By:__________________________________
CHRISTOPHER L. SCHALLER
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
KNOW ALL MEN BY THESE PRESENTS, THAT EACH PERSON WHOSE SIGNATURE APPEARS
BELOW HEREBY CONSTITUTES AND APPOINTS CHRISTOPHER L. SCHALLER, WILLIAM B. TOWNE
AND JANE S. POLLACK, AND EACH OF THEM ACTING INDIVIDUALLY, AS 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 AMENDMENTS (INCLUDING 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 ACTING INDIVIDUALLY, FULL POWER AND AUTHORITY TO DO
AND TO PERFORM EACH AND EVERY ACT AND THING REQUISITE AND NECESSARY TO BE DONE
IN AND ABOUT THE PREMISES, AS FULLY AND 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 ACTING INDIVIDUALLY, OR THEIR OR HIS
SUBSTITUTE OR SUBSTITUTES, MAY LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE
HEREOF.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
SIGNATURE TITLE DATE
/s/ Christopher L. Schaller President and Chief Executive February 8, 1995
___________________________ Officer and Director
CHRISTOPHER L. SCHALLER (Principal Executive Officer)
/s/ William B. Towne Executive President and Chief February 8, 1995
___________________________ Financial Officer (Principal
WILLIAM B. TOWNE Financial and Accounting
Officer)
/s/ Stephen Berger Director February 8, 1995
___________________________
STEPHEN BERGER
/s/ Cameron Clark, Jr. Director February 8, 1995
___________________________
CAMERON CLARK, JR.
/s/ Steven M. Friedman Director February 8, 1995
___________________________
STEVEN M. FRIEDMAN
/s/ F. Peter Libassi Director February 8, 1995
___________________________
F. PETER LIBASSI
/s/ Alain M. Oberrotman
___________________________ Director February 8, 1995
ALAIN M. OBERROTMAN
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EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NUMBER
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* 3(i).1 --Articles of Restatement setting forth the Amended
and Restated Articles of Incorporation of the
Company, as filed with the Secretary of State of
the State of Georgia on November 19, 1990 (filed as
Exhibit 3(i).1 to the Company's Quarterly Report on
Form 10-Q for the quarter ended July 31, 1994 (the
"Third Quarter Form 10-Q")).
* 3(i).2 --Articles of Correction, as filed with the
Secretary of State of the State of Georgia on
December 18, 1990 (filed as Exhibit 3(i).2 to the
Third Quarter Form 10-Q).
* 3(i).3 --Articles of Merger of Forstmann Georgia Corp. and
the Company, as filed with the Secretary of State
of the State of Georgia on March 3, 1992 (filed as
Exhibit 3(i).3 to the Third Quarter Form 10-Q).
* 3(i).4 --Articles of Amendment, as filed with the Secretary
of State of the State of Georgia on April 8, 1994
(filed as Exhibit 3(i).4 to the Third Quarter Form
10-Q).
* 3(ii) --Amended and Restated By-Laws of the Company (March
30, 1994) (filed as Exhibit 3(ii) to the Third
Quarter Form 10-Q).
5 --Opinion of Troutman Sanders.
23.1 --Consent of Deloitte & Touche LLP to the use of
their report as incorporated by reference in this
Registration Statement.
23.2 --Consent of Troutman Sanders (contained in Exhibit
5).
</TABLE>
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* Incorporated by reference to the previous filings as indicated.
<PAGE>
EXHIBIT 5
[LETTERHEAD]
February 7, 1995
Forstmann & Company, Inc.
1185 Avenue of the Americas
New York, New York 10036
Gentlemen:
We have examined a copy of the registration statement on Form S-8 proposed to
be filed by Forstmann & Company, Inc., a Georgia corporation (the "Company"),
with the Securities and Exchange Commission (the "Commission"), relating to the
registration pursuant to the provisions of the Securities Act of 1933, as
amended (the "Act"), of an additional 250,000 shares (the "Shares") of the
Company's Common Stock, par value $.001 per share (the "Common Stock"),
reserved for issuance in connection with options granted or to be granted under
the Forstmann & Company, Inc. Common Stock Incentive Plan (the "Plan"). In
rendering this opinion, we have reviewed such documents and made such
investigations as we deemed appropriate.
We are of the opinion that, subject to compliance with the pertinent
provisions of the Act and to compliance with such securities or "Blue Sky" laws
of any jurisdiction as may be applicable, when certificates evidencing the
Shares have been duly executed, countersigned, registered, issued and delivered
in accordance with the terms of the Plan and the respective stock option
agreements entered into under and in accordance with the Plan, the Shares will
be duly and validly issued and outstanding, fully paid and non-assessable
shares of the Common Stock of the Company.
We are members of the Bar of the State of Georgia. In expressing the opinions
set forth above, we are not passing on the laws of any jurisdiction other than
the laws of the State of Georgia and the Federal law of the United States of
America.
We hereby consent to the filing of this opinion or copies thereof as an
exhibit to the registration statement referred to above.
Very truly yours,
Troutman Sanders
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Forstmann & Company, Inc. on Form S-8 of our reports dated December 8, 1994
(January 23, 1995 as to Paragraph 2 of Note 7) appearing in the Annual Report
on Form 10-K of Forstmann & Company, Inc. for the year ended October 30, 1994.
Deloitte & Touche LLP
Atlanta, Georgia
February 7, 1995
