SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement
Under the
Securities Act of 1933
THE NEIMAN MARCUS GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 95-4119509
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
27 Boylston Street, Chestnut Hill, MA 02167
(Address of Principal Executive Offices)
THE NEIMAN MARCUS GROUP, INC. 1997 INCENTIVE PLAN
(Full Title of the Plan)
ERIC P. GELLER, ESQ.
Senior Vice President and General Counsel
27 Boylston Street
Chestnut Hill, MA 02167
(Name and Address of Agent for Service)
617-232-8200
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Offering Registration
Registered Registered Price Price (2) Fee (3)
Per Share (1)
Common Stock 2,500,000 $ 33.00 $82,500,000.00 $ 25,000.00
shares
1. This estimate is made solely for the purpose of determining the
registration fee pursuant to paragraphs (c) and (h) of Rule 457 under the
Securities Act of 1933, as amended, (the "Securities Act") based upon
$33.00, the average of the high and low prices of the Common Stock
of the Registrant on September, 11, 1997 as reported on the New York
Stock Exchange.
2. Estimate solely for the purpose of calculating the registration
fee.
3. The registration fee has been calculated pursuant to Section 6(b)
of the Securities Act.
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PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated by reference into this Registration
Statement:
(a) The Registrant's Annual Report on Form 10-K for its fiscal year ended
August 3, 1996;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end
of the fiscal year covered by the annual report referred to in paragraph (a)
above; and
(c) The description of Common Stock of the Registrant contained in the
Registrant's registration statement filed under the Exchange Act, including
any amendments or reports filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 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 their respective dates of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares to be offered hereby will be passed upon for
the Registrant by Eric P. Geller, Senior Vice President and General Counsel
for the Registrant. Mr. Geller does not beneficially own any shares of the
Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL") makes
provision for the indemnification of officers and directors of corporations in
terms sufficiently broad to indemnify the officers and directors of the
Registrant under certain circumstances from liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933,
as amended (the "Act").
As permitted by the DGCL, the Registrant's Restated Certificate of
Incorporation (the "Charter") provides that, to the fullest extent permitted
by the DGCL, no director shall be personally liable to the Registrant or to
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its stockholders for monetary damages for breach of his or her fiduciary duty
as a director. Delaware law does not permit the elimination of liability (i)
for any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) in respect of
certain unlawful dividend payments or stock redemptions or repurchases, or
(iv) for any transaction from which the director derives an improper personal
benefit. The effect of this provision in the Charter is to eliminate the
rights of the Registrant and its stockholders (through stockholders'
derivative suits on behalf of the Registrant) to recover monetary damages
against a director for beach of fiduciary duty as a director thereof
(including breaches resulting from negligent or grossly negligent behavior)
except in the situations described in clauses (i) - (iv), inclusive, above.
These provisions will not alter the liability of directors under federal
securities laws.
The Registrant's Bylaws (the "Bylaws") provide that the Registrant 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, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or
in the right of the Registrant) by reason of the fact that he or she is or was
a director, officer, employee or agent of the Registrant or is or was serving
at the request of the Registrant as a director, officer, employee or agent of
another corporation or enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Registrant, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe such
person's conduct was unlawful.
The Bylaws also provide that the Registrant 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 suit by or in the right of the Registrant to
procure a judgement in its favor by reason of the fact that such person acted
in any of the capacities set forth above, against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit if such person acted
under similar standards, except that no indemnification may be made in respect
of any claim, issue or matter as to which such person shall have been adjudged
to be liable to the Registrant unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit
was brought shall determine that despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to be indemnified for such expenses which the Court of Chancery of the
State of Delaware or the court in which such action was brought shall deem
proper.
The Bylaws also provide that to the extent a director or officer of the
Registrant has been successful in the defense of any action, suit or
proceeding referred to in the previous paragraphs or in the defense of any
claim, issue, or matter therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him
or her in connection therewith; that indemnification provided for in the
Bylaws shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; and that the Registrant may purchase and
maintain insurance on behalf of a director or officer of the Registrant
against any liability asserted against him or her or incurred by him or her in
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any such capacity or arising out of his or her status as such whether or not
the Registrant would have the power to indemnify him or her against such
liabilities under such Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See Exhibit Index immediately following the signature page.
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 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;
(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 (a) (1) (i) and (a) (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 with or furnished
to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this 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
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Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 provisions referred to in Item 6 hereof, 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, as amended,
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 Newton, Commonwealth of
Massachusetts, on September 17, 1997.
THE NEIMAN MARCUS GROUP, INC.
By: /s/ Richard A. Smith
Richard A. Smith
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Richard A. Smith, Robert A. Smith, John R. Cook and Eric P. Geller and each of
them his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution in each of them, for him and in his name,
place and stead, and in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement on Form
S-8 of The Neiman Marcus Group, Inc. 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, full power and authority to do and perform each and every act
requisite or necessary to be done in connection therewith, as fully as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them 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, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the date indicated.
SIGNATURES
Name Title Date
Principal Executive Officer:
/s/ Richard A. Smith Chairman of the Board and September 17, 1997
Richard A. Smith Chief Executive Officer
Principal Financial Officer:
/s/ John R. Cook Senior Vice President and September 17, 1997
John R. Cook Chief Financial Officer
Principal Accounting Officer:
/s/ Stephen C. Richards Vice President and September 17, 1997
Stephen C. Richards Controller
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DIRECTORS:
/s/ Matina S. Horner September 12, 1997
Matina S. Horner
/s/ Vincent M. O'Reilly September 12, 1997
Vincent M. O'Reilly
/s/ Walter J. Salmon September 17, 1997
Walter J. Salmon
/s/ Jean Head Sisco September 16, 1997
Jean Head Sisco
/s/ Robert A. Smith September 17, 1997
Robert A. Smith
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EXHIBIT INDEX
Exhibit No. Description
4.1 Restated Certificate of
Incorporation of the Registrant,
incorporated herein by reference
to the Registrant's Annual Report
on Form 10-K for the twenty-six
week period ended August 1, 1987.
4.2 By-laws of the Registrant, as
amended, incorporated herein by
reference to the Registrant's
Annual Report on Form 10-K for the
fiscal year ended August 1, 1992.
5 Opinion of Eric P. Geller, Esq.,
Senior Vice President and General
Counsel of The Neiman Marcus
Group, Inc.
23.1 Consent of Deloitte and Touche
LLP.
23.2 Consent of Eric P. Geller, Esq.
(Contained in Exhibit 5)
99 The Neiman Marcus Group, Inc. 1997
Incentive Plan, incorporated
herein by reference to Exhibit A
to the Registrant's Definitive
Schedule 14A (Definitive Proxy
Statement and Definitive
Additional Materials), dated
December 10, 1996 and filed with
the Securities and Exchange
Commission.
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EXHIBIT 5
[THE NEIMAN MARCUS GROUP, INC. LETTERHEAD]
September 17, 1997
The Neiman Marcus Group, Inc.
27 Boylston Street
Chestnut Hill, Massachusetts 02167
Dear Sirs:
In my capacity as Senior Vice President and General Counsel of The
Neiman Marcus Group, Inc. (the "Company"), I have acted as counsel to the
Company in connection with the preparation of a registration statement on Form
S-8 (the "Registration Statement") which is being filed with the Securities
and Exchange Commission pursuant to the Securities Act of 1933, as amended
(the "Act"), contemporaneously herewith.
The Registration Statement relates to 2,500,000 shares (the "Shares") of
Common Stock, $0.01 par value ("Common Stock"), of the Company issuable upon
the exercise of options, rights and awards which may be granted under the
Company's 1997 Incentive Plan (the "Plan")
I am familiar with the Company's Restated Certificate of Incorporation
and its By-Laws, both as amended to date. In addition, I (or a member of my
legal staff) have examined resolutions of the Board of Directors of the
Company, the Registration Statement and such other documents, certificates and
records as I have deemed necessary to enable me to render this opinion.
I am an attorney admitted to practice in the Commonwealth of
Massachusetts. I express no opinion concerning the laws of any other
jurisdiction other than the laws of the United States of America and the
General Corporation law of the State of Delaware.
I have assumed that the Shares to be issued upon the exercise of
options, rights and awards under the Plan will be issued only upon payment (or
achievement of performance goals) as provided in the Plan. I have also
assumed that all requisite steps will be taken to comply with the requirements
of the Act, applicable state laws regulating the offer and sale of securities
and the requirements of the New York Stock Exchange.
Based upon the foregoing, and having regard for such legal
considerations as I have deemed relevant, I am of the opinion that:
1. The Company is duly organized and existing as a corporation in good
standing under the laws of the State of Delaware.
2. The Shares have been duly authorized by all necessary action on the
part of the Company and, when issued and paid for (if any such payment is so
required) upon the exercise of options, rights and awards pursuant to the
terms and conditions of the Plan, will be legally issued, fully paid and
nonassessable shares of the Company's Common Stock.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
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Very truly yours,
/s/ Eric P. Geller
Eric P. Geller
Senior Vice President and
General Counsel
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Neiman Marcus Group, Inc. on Form S-8 of our reports dated August 29, 1996
(September 10, 1996 as to Note 13) appearing in the Annual Report on Form 10-K
of The Neiman Marcus Group, Inc. for the year ended August 3, 1996.
/s/ Deloitte and Touche, LLP
Deloitte and Touche, LLP
Boston, Massachusetts
September 15, 1997
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