<PAGE>
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ADVO, Inc.
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(Exact name of issuer as specified in its charter)
Delaware 06-0885252
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(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
One Univac Lane, P.O. Box 755, Windsor, Connecticut 06095-0755
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(Address of Principal Executive Offices)
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1988 Non-Qualified Stock Option Plan of ADVO, Inc., as amended
and the 1993 Stock Option Subplan
(Full title of the plan)
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David M. Stigler, Esq.
Senior Vice President and General Counsel
One Univac Lane, P.O. Box 755, Windsor, Connecticut 06095-0755
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(Name and address of agent for service)
(203) 285-6120
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(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share (*) price (*) fee
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 550,000 $18.875 $10,381,250 $3,579.74
value $.01 per share shares
</TABLE>
(*) Estimated pursuant to Rule 457(h) solely for the purpose of computing the
registration fee on the basis of the average of the high and low prices of the
Common Stock of ADVO, Inc. on March 15, 1994.
Pursuant to Rule 429, this registration statement constitutes Post-Effective
Amendment No. 4 to the Company's Form S-8 (File No. 33-27371) registering
1,625,000 shares for issue under the 1988 Non-Qualified Stock Option Plan, as
amended and Post-Effective Amendment No. 1 to the Company's Form S-8 (File No.
33-34685) registering 312,500 shares for issue under the 1988 Non-Qualified
Stock Option Plan, as amended and Post-Effective Amendment No. 2 to the
Company's Form S-8 (File No. 33-40401) registering 500,000 shares for issue
under the 1988 Non-Qualified Stock Option Plan, as amended and Post-Effective
Amendment No. 3 to the Company's Form S-8 (File No. 33-60800) registering
312,500 shares for issue under the 1988 Non-Qualified Stock Option Plan, as
amended.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. - INCORPORATION OF DOCUMENTS BY REFERENCE
- -------------------------------------------------
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended September
25, 1993;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (the "1934 Act") since the end of the fiscal year
covered by the Annual Report on Form 10-K referred to in (a) above;
(c) The Company's definitive proxy statement, dated December 17, 1993, filed
pursuant to Section 14 of the 1934 Act in connection with the 1994 Annual
Meeting of Stockholders; and
(d) The description of the Company's Common Stock which is contained in its
registration statement on Form 10 dated September 12, 1986 filed under the
1934 Act, and including any amendment or report filed under the 1934 Act for
the purpose of updating such description.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(c) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this registration statement to be a
part hereof from the date of the filing of such reports and documents.
ITEM 4. - DESCRIPTION OF SECURITIES
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Not applicable
ITEM 5. - INTERESTS OF NAMED EXPERTS AND COUNSEL
- ------------------------------------------------
The consolidated financial statements of ADVO, Inc. incorporated by
reference in ADVO, Inc.'s Annual Report (Form 10-K) for the year ended September
25, 1993, have been audited by Ernst & Young, independent auditors, as set forth
in their report thereon included therein and incorporated herein by reference.
Such financial statements are, and audited financial statements to be included
in subsequently filed documents will be, incorporated herein in reliance upon
the reports of Ernst & Young pertaining to such financial statements (to the
extent covered by consents filed with the Securities and Exchange Commission)
given upon the authority of such firm as experts in accounting and auditing.
The legality of the Common Stock is being passed on for the Company by Day,
Berry & Howard, CityPlace, Hartford, Connecticut 06103-3499.
ITEM 6. - INDEMNIFICATION OF OFFICERS AND DIRECTORS
- ---------------------------------------------------
Under Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL"), directors and officers as well as other employees and individuals
may be indemnified against expenses (including attorneys' fees), judgement,
fines and amounts paid in settlement in connection with specified actions, suits
or proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of a corporation--a "derivative action") if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interest of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard of care is applicable in the case of
derivative actions, except that indemnification only extends to expenses
(including attorneys' fees) incurred in connection with defense or settlement of
such an action and the DGCL requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. Additionally, a corporation is required to indemnify its
directors and officers against expenses to the extent that such directors or
officers have been successful on the merits or otherwise in any action, suit or
proceeding or in defense of any claim, issue or matter therein.
- 2 -
<PAGE>
Unless ordered by a court, an indemnification can be made by a corporation
only upon a determination that indemnification is proper in the circumstances
because the party seeking indemnification has met the applicable standard of
conduct as set forth in Delaware Law. The indemnification provided by Section
145 of the DGCL includes the right to be paid by the corporation the expenses
incurred in defending proceedings in advance of their final disposition. Such
advance payment of expenses, however, may be made only upon delivery to the
corporation by the indemnified party of an undertaking to repay all amounts so
advanced if it shall ultimately be determined that the person receiving such
payments is not entitled to be indemnified.
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred by Section
145 of the DGCL is not exclusive of any other right which any person may have or
acquire under any statute, provision of the certificate of incorporation or
bylaws, or otherwise. In addition, Section 145 of the DGCL authorizes a
corporation to maintain insurance, at its expense, liability or loss, whether or
not the corporation would have the power to indemnify such person against such
expense, liability or loss under the DGCL.
As permitted by Section 145 of the DGCL, the Restated Certificate of
Incorporation and the Restated Bylaws of the Company provide for indemnification
of officers, directors, employees and agents of the Company in certain cases
against expenses and liabilities under judgements of reimbursement of amounts
paid in settlement.
ITEM 7. - EXEMPTION FROM REGISTRATION CLAIMED
- ---------------------------------------------
Not applicable
ITEM 8. - EXHIBITS
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The following exhibits are filed herewith:
<TABLE>
<CAPTION>
Description
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Exhibit No.
- -----------
<S> <C>
4.1 1988 Non-Qualified Stock Option Plan of ADVO, Inc., as amended.
(Incorporated by reference to Exhibit A to the Company's Definitive
Proxy Statement for the annual meeting of Stockholders held on
January 20, 1994 (the "Proxy Statement")).
4.2 1993 Stock Option Subplan of the 1988 Non-Qualified Stock Option
Plan of ADVO, Inc., as amended (Incorporated by reference to Exhibit
B to the Proxy Statement).
4.3 Restated Certificate of Incorporation of ADVO, Inc. (Incorporated by
reference to Exhibit 5 of the Company's Registration Statement on
Form 8-A, filed on February 24, 1993 (the "Form 8-A")).
4.4 Restated Bylaws of ADVO, Inc. (Incorporated by reference to Exhibit
6 of the Form 8-A).
4.5 Option Agreements
4.6 Stockholder Protection Rights Agreement, dated as of February 5,
1993, between the Company and Mellon Securities Trust Company, as
Rights Agent, including Exhibit A and B (Incorporated by reference
to Exhibit 4.1 of the Company's Form 8-K, dated February 5, 1993).
5 Opinion of Day, Berry & Howard as to the legality of the Common
Stock being registered.
23.1 Consent of Independent Auditors.
23.2 Consent of Day, Berry & Howard (See Exhibit 5).
24 Power of Attorney (See Page 5).
</TABLE>
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<PAGE>
Item 9. - UNDERTAKINGS
- ----------------------
A. Undertaking to Update
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;
(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 (a)(1)(i) and (a)(1)(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 Securities 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 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.
B. Undertaking With Respect to Incorporating Certain Exchange Act Documents by
Reference
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 section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 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. Indemnification
Insofar as indemnification for liabilities under the Securities Act of 1933
("the Act") may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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 of 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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<PAGE>
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 Town of Windsor, State of Connecticut, on March 16, 1994.
ADVO, Inc.
By Robert S. Hirst/s/
-----------------------
ROBERT S. HIRST
Vice President and Controller
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Power of Attorney
Each of the undersigned hereby appoints David M. Stigler and Robert S. Hirst,
and each of them severally, his true and lawful attorneys to execute on behalf
of the undersigned any and all 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. Each such attorney will
have the power to act hereunder with or without the other. Each of the
undersigned hereby ratifies and confirms all that attorneys, or any of them, may
lawfully do or cause to be done by virtue hereof.
---------
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<PAGE>
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:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
ROBERT KAMERSCHEN/s/
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Robert Kamerschen Chairman, Chief Executive March 16, 1994
Officer and Director
(Principal Executive Officer)
JOSEPH P. DURRETT/s/
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Joseph P. Durrett President, Chief Operating March 16, 1994
Officer and Director
LARRY G. MORRIS/s/
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Larry G. Morris Executive Vice President, March 16, 1994
Chief Financial and Administrative
Officer and Director (Principal
Financial Officer)
ROBERT S. HIRST/s/
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Robert S. Hirst Vice President and Controller March 16, 1994
(Principal Accounting Officer)
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Jack W. Fritz Director March 16, 1994
LAWRENCE LACHMAN/s/
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Lawrence Lachman Director March 16, 1994
HOWARD H. NEWMAN/s/
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Howard H. Newman Director March 16, 1994
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John R. Rockwell Director March 16, 1994
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Richard H. Stowe Director March 16, 1994
JOHN L. VOGELSTEIN/s/
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John L. Vogelstein Director March 16, 1994
</TABLE>
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<PAGE>
EXHIBIT INDEX
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<TABLE>
<CAPTION>
Sequential
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C> <C>
4.5 Option Agreements.......................................
5 Opinion of Day, Berry & Howard as to the legality of
the Common Stock being registered.......................
23.1 Consent of Independent Auditors.........................
23.2 Consent of Day, Berry & Howard (See Exhibit 5)..........
24 Power of Attorney (See Page 5)..........................
</TABLE>
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<PAGE>
EXHIBIT 4.5
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Page 1 of 2
STOCK OPTION CERTIFICATE
(Non-Assignable)
To Purchase Common Stock of
ADVO, Inc.
Issued Pursuant to the 1988 Stock
Option Plan of ADVO, Inc., as amended
THIS CERTIFIES that on _________________, (the "Holder") was granted an
option ("Option") to purchase at the Option Price of $________ per share all
or any part of _____________________________ paid and non-assessable shares
("Shares") of the Common Stock (par value of $.01 per share) of ADVO, Inc.
("Company"), a Delaware corporation, upon and subject to the following terms
and conditions:
This Option shall expire on _________________.
This Option may be exercised or surrendered during the Holder's lifetime
only by the Holder. This Option shall not be transferable by the Holder
otherwise than by will or by the laws of descent and distribution.
This Option may not be exercised until the first anniversary of this
Option's date of grant; 25% of the Shares subject to this Option may be
purchased on or after the first anniversary of the Option's date of grant,
and an additional 25% of the Shares subject to this Option may be purchased
on or after each of the second, third and fourth anniversaries,
respectively, of this Option's date of grant, but prior to the Option's
expiration date.
The Option and this Option certificate are issued pursuant to and are
subject to all of the terms and conditions of the Company's 1988 Stock
Option Plan, as amended (the "Plan"), the terms and conditions of which are
hereby incorporated as though set forth at length, and the receipt of a copy
of which the Holder hereby acknowledges by his receipt of this certificate.
A determination of the Board of Directors or the Committee under the Plan as
to any questions which may arise with respect to the interpretation of the
provisions of the Option and of the Plan shall be final. The Board of
Directors or the Committee may authorize and establish such rules,
regulations and revisions thereof not inconsistent with the provisions of
the Plan, as it may deem advisable.
WITNESS the seal of the Corporation and the signatures of its duly
authorized officers.
Date:
----------------------
(SEAL) ADVO, Inc.
By
-------------------------
Chairman
ATTEST:
By:
----------------------
Secretary
RECEIPT ACKNOWLEDGED:
By:
----------------------
<PAGE>
EXHIBIT 4.5
-----------
Page 2 of 2
PERFORMANCE
STOCK OPTION CERTIFICATE
(Non-Assignable)
To Purchase Common Stock of
ADVO, Inc.
Issued Pursuant to the 1988 Stock
Option Plan of ADVO, Inc., as amended
THIS CERTIFIES that on __________________, (the "Holder") was granted an
option ("Option") to purchase at the Option Price of $___________ per share
all or any part of __________________________ paid and non-assessable shares
("Shares") of the Common Stock (par value of $.01 per share) of ADVO, Inc.
("Company"), a Delaware corporation, upon and subject to the following terms
and conditions:
This Option shall expire on ________________.
This Option may be exercised or surrendered during the Holder's lifetime
only by the Holder. This Option shall not be transferable by the Holder
otherwise than by will or by the laws of descent and distribution.
This Option may not be exercised until the first anniversary of this
Option's date of grant; 25% of the Shares subject to this Option may be
purchased on or after the first anniversary of the Option's date of grant,
and an additional 25% of the Shares subject to this Option may be purchased
on or after each of the second, third and fourth anniversaries,
respectively, of this Option's date of grant, but prior to the Option's
expiration date.
The Option and this Option certificate are issued pursuant to and are
subject to all of the terms and conditions of the Company's 1988 Stock
Option Plan, as amended (the "Plan"), the terms and conditions of which are
hereby incorporated as though set forth at length, and the receipt of a copy
of which the Holder hereby acknowledges by his receipt of this certificate.
A determination of the Board of Directors or the Committee under the Plan as
to any questions which may arise with respect to the interpretation of the
provisions of the Option and of the Plan shall be final. The Board of
Directors or the Committee may authorize and establish such rules,
regulations and revisions thereof not inconsistent with the provisions of
the Plan, as it may deem advisable.
This Option will not be exercisable unless and until the closing price of
the Company's shares on the New York Stock Exchange (or any successor) has
been at or above twenty-five dollars ($25) per share, adjusted as provided
in the Plan, for at least ninety (90) of the prior one hundred eighty (180)
business days.
If this has not occurred within six (6) years of the date of this grant,
and the other conditions of the Plan have been met, these options shall vest
at that time, and the Holder shall have ninety (90) days in which to
exercise this Option. After that ninety day period, this option shall be
null and void.
WITNESS the seal of the Corporation and the signatures of its duly
authorized officers.
Date:
----------------------
(SEAL) ADVO, Inc.
By
-------------------------
Chairman
ATTEST:
By:
----------------------
Secretary
RECEIPT ACKNOWLEDGED:
By:
----------------------
<PAGE>
EXHIBIT 5
March 16, 1994
ADVO, Inc.
One Univac Lane
Windsor, CT 06095-2668
Gentlemen:
We have acted as your special counsel with respect to the Registration
Statement on Form S-8 under the Securities Act of 1993, as amended, as filed
by ADVO, Inc. (the "Company") with the Securities and Exchange Commission,
relating to an additional 550,000 shares of common stock, $.01 par value, of
the Company (the "Shares"), to be issued upon exercise of options granted
under the Company's 1988 Non-qualified Stock Option Plan, as amended (the
"1988 Plan") and the 1993 Stock Option Subplan (the "Subplan").
We have examined the 1988 Plan and Subplan, the minutes of the corporate
proceedings of the Board of Directors of the Company and such other
documents as we have deemed necessary or advisable for the purposes of our
opinion below.
Based upon the foregoing, we are of the opinion that the Shares to be
issued under the 1988 Plan and Subplan will, when so issued upon receipt of
the consideration specified in the 1988 Plan and Subplan, be validly issued,
fully paid and non-assessable (assuming that, at the time of such issuance,
the Company has a sufficient number of authorized and unissued shares
available for such issuance).
We consent to the use of this opinion as Exhibit 5 to the aforesaid
Registration Statement. In giving such consent, we do not thereby admit
that we are in the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
DAY, BERRY & HOWARD
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Interests of
Named Experts and Counsel" in the Registration Statements constituting Post-
Effective Amendment No. 4 to Form S-8 (No. 33-27371), Post-Effective
Amendment No. 1 to Form S-8 (No. 33-34685), Post-Effective Amendment No. 2
to Form S-8 (No. 33-40401) and Post-Effective Amendment No. 3 to Form S-8
(No. 33-60800), all pertaining to the 1988 Non-Qualified Stock Option Plan
of ADVO, Inc., as amended, and to the incorporation by reference therein of
our report dated October 19, 1993, with respect to the consolidated
financial statements of ADVO, Inc. incorporated by reference in its Annual
Report (Form 10-K) for the year ended September 25, 1993 and the related
financial statement schedules included therein, filed with the Securities
and Exchange Commission.
Ernst & Young
Hartford, Connecticut
March 16, 1994
