As Filed with the Securities and Exchange Commission on August 25, 1999
Registration Statement No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
CATHERINES STORES CORPORATION
(Exact name of registrant as specified in its charter)
Tennessee 62-1350411
(State of Incorporation) (I.R.S. Employer Identification No.)
3742 Lamar Avenue
Memphis, Tennessee 38118
(Address of principal executive offices)
CATHERINES STORES CORPORATION 1999 DIANE V. MISSEL NON-QUALIFIED INCENTIVE
PLAN
(Full Title of the Plan)
DAVID C. FORELL
Executive Vice President and
Chief Financial Officer
3742 Lamar Avenue
Memphis, Tennessee 38118
(901) 363-3900
(Name, address and telephone number of agent for service)
(with copies to:)
SAMUEL D. CHAFETZ, ESQ.
Waring Cox
50 N. Front Street
Suite 1300
Memphis, Tennessee 38103
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed Maximum
Maximum Aggregate Amount of
Title Of Securities Amount To Be Offering Price Offering Registration
To Be Registered Registered Per Share(1) Price(1) Fee(1)
- ------------------- ------------ -------------- -------- -------------
<S> <C> <C> <C> <C>
Option and Shares,
Common Stock,
$0.01 par value . . . . 40,000 shares $8.00 $320,000 $88.96
=========================== ==================== =================== ===================== ===================
</TABLE>
(1)Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(h) based upon the price at which the option may be exercised,
derived from the price of the Common Stock on the NASDAQ National Market System
on March 4, 1999.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
All information required by Part I to be contained in the Prospectus is
omitted from the Registration Statement in accordance with Rule 428 under the
Securities Act of 1933, as amended (the "1933 Act").
PART II
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
are incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the year ended January
30, 1999.
2. All reports filed by the Registrant 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 ended January 30, 1999.
3. The description of the Registrant's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission on June 24, 1991,
pursuant to Section 12(b) of the 1934 Act.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 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 herein and to be a part thereof from the date of
filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
No response is required to this item.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
No response is required to this item.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 48-18-502 of the Tennessee Business Corporation Act provides that a
Tennessee corporation may indemnify an individual 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,
whether formal or informal (hereinafter, a "proceeding") (other than a
proceeding by or in the right of the corporation in which the director was
adjudged liable or in connection with any other proceeding in which the director
was adjudged liable on the basis that he improperly received personal benefit)
because he is or was a director of the corporation or, while a director of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee or agent of another corporation or
enterprise, against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such proceeding if he
acted in good faith and in a manner he reasonably believed to be in or, in
certain circumstances, 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.
2
<PAGE>
Section 48-15-503 further provides that to the extent a director of a
corporation has been wholly successful in the defense of any proceeding, he
shall be indemnified against expenses actually and reasonably incurred by him in
connection therewith, unless otherwise limited in the corporation's charter. The
Company's Charter does not limit this right to indemnification.
Section 48-15-504 of the Tennessee Business Corporation Act provides that a
corporation may pay for or reimburse the reasonable expenses incurred by a
director who is a party to a proceeding in advance of final disposition of the
proceeding if the director furnishes the corporation a written affirmation of
his good faith belief that he met the standard of conduct described in
ss.48-18-502; he furnishes the corporation a written unlimited obligation to
repay the advance if it is ultimately determined that he is not entitled to
indemnification; and a determination is made that the facts then known to those
making this determination would not preclude indemnification.
Section 48-18-508 provides that a corporation may purchase and maintain
insurance on behalf of a director of the corporation against liability asserted
against him in that capacity or arising out of his status as such, whether or
not the corporation would have the power to indemnify him against the same
liability under ss.48-18-502 or ss.48-18- 503.
Section 48-18-507 extends similar standards for indemnification and
insurance to officers, employees and agents.
Section 48-12-102 of the Tennessee Business Corporation Act provides that a
corporation in its charter may eliminate or limit personal liability of members
of its board of directors or shareholders for breach of a director's fiduciary
duty. However, no such provision may eliminate or limit the liability of a
director or shareholder for breaching his duty of loyalty, failing to act in
good faith, engaging in intentional misconduct or knowingly violating a law,
voting or assenting to a distribution which was illegal. A provision of this
type limits liability for monetary damages only and has no effect on the
availability of equitable remedies, such as injunctions or rescission, for
breach of fiduciary duty. The Company's Charter contains such a provision.
The Company's Bylaws provide that the Company shall indemnify officers and
directors, and to the extent authorized by the Board of Directors, employees and
agents of the Company, to the full extent permitted by and in the manner
permissible under the laws of the State of Tennessee. The Bylaws also permit the
Board of Directors to authorize the Company to purchase and maintain insurance
against any liability asserted against any director, officer, employee or agent
of the Company arising out of his capacity as such, and the Company has
purchased such insurance.
The Company has entered into and intends to execute indemnity agreements
with present and future directors for indemnification of and advance of expenses
to such persons to the full extent permitted by law.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
No response is required to this item.
Item 8. EXHIBITS
Exhibit Number Description
4.1 1999 Diane V. Missel Non-Qualified Incentive Plan
4.2 Catherines Stores Corporation 1994 Omnibus Incentive Plan,
as amended*
5 Opinion and Consent of Waring Cox
23.1 Consent of Waring Cox (contained in Exhibit 5)
3
<PAGE>
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney
*Incorporated by reference to the Registration Statement on Form S-8 filed
on August 25, 1999.
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 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.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933 (the "1933 Act"), 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 the purposes of
determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Act) 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 1933 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 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
4
<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 City of Memphis, State of Tennessee, on the 25th day of
August, 1999.
CATHERINES STORES CORPORATION
By: /s/ David C. Forell
--------------------
David C. Forell
Executive Vice President,
Chief Financial Officer and Secretary
5
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officers and Directors
of Catherines Stores Corporation, a Tennessee corporation, hereby constitute and
appoint Bernard J. Wein and David C. Forell and each of them, the true and
lawful agents and attorneys-in-fact, and in any one or more of them, to sign for
the undersigned, in their respective names as Officers and Directors of the
Corporation, one or more Registration Statements on Form S-8 (or other
appropriate form) to be filed with the Securities and Exchange Commission,
Washington, D.C., under the Securities Act of 1933, as amended, and any
amendment or supplement to such Registration Statement, relating to the
Catherines Stores Corporation 1999 Diane V. Missel Non-Qualified Incentive Plan;
hereby ratifying and confirming all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Bernard J. Wein Chairman of the Board, August 23, 1999
- -------------------------------- President and Chief Executive
Bernard J. Wein Officer and Director
(Principal Executive Officer)
/s/ Stanley H. Grossman Director August 23, 1999
- ---------------------------------
Stanley H. Grossman
/s/ David C. Forell Executive Vice President, August 23, 1999
- -------------------------------- Chief Financial Officer, Secretary
David C. Forell and Director (Principal Financial
and Accounting Officer)
/s/ James H. Lindy Director August 23, 1999
- -----------------------------------
James H. Lindy
/s/ Allen B. Morgan, Jr. Director August 23, 1999
- ---------------------------------
Allen B. Morgan, Jr.
/s/ Wellford L. Sanders, Jr. Director August 23, 1999
- ---------------------------------
Wellford L. Sanders, Jr.
/s/ Elliot J. Stone Director August 23, 1999
- ---------------------------------------
Elliot J. Stone
</TABLE>
6
<PAGE>
EXHIBIT 4.1
CATHERINES STORES CORPORATION
NONQUALIFIED STOCK OPTION
CATHERINES STORES CORPORATION, a Tennessee corporation (the "Company"),
hereby grants to DIANE V. MISSEL (the "Optionee") an option ("Option") to
purchase a total of Forty Thousand (40,000) shares of $.01 par value common
stock of the Company (the "Shares"), at the price and subject to the terms and
conditions hereof.
1. Nature of the Option. This Option is not granted pursuant to any stock
option, stock bonus, stock purchase or similar plan approved by the Company's
stockholders. Nevertheless, the Company and the Optionee hereby agree that this
Option shall be subject to the terms, definitions, procedures and conditions of
the 1994 OMNIBUS INCENTIVE PLAN (together with all amendments thereto,
collectively referred to as the "Plan") adopted by the Company, which is
incorporated herein by reference, even though this Option is not granted
pursuant to the Plan. This Option is not intended to be an "incentive stock
option" within the meaning of section 422 of the Internal Revenue Code of 1986,
as amended.
2. Option Price. The option price is $8.00 for each share.
3. Exercise of Option. This option shall be exercisable only in accordance
with the provisions of the Plan, and only by written notice which shall:
(a) state the election to exercise the Option, the number of Shares in
respect of which it is being exercised, the person in whose name the stock
certificate or certificates for such Shares is to be registered, his or her
address and Social Security Number (or if more than one, the names, addresses
and Social Security Numbers of such persons);
(b) contain such representations and agreements as to the holder's
investment intent with respect to the holder's investment intent with respect to
such Shares as may be required by the Company pursuant to the Plan or this
Agreement;
(c) be signed by the person or persons entitled to exercise the Option, and
if the Option is being exercised by any person or persons other than the
Optionee, be accompanied by proof, satisfactory to the Company, of the right of
such person or persons to exercise the Option;
(d) be in writing and delivered in person or by certified mail to the
Secretary of the Company; and
(e) be accompanied by payment in full (including applicable withholding
taxes, if any, as described in Section 8 of this Agreement.) Payment of the
purchase price shall be in cash, currency, by certified or bank cashier's check
and/or Shares, or a combination thereof pursuant to the provisions of the Plan.
Unless the sale of Shares pursuant to this Option has been registered under the
Securities Act of 1933 on Form S-8 or successor form, or unless otherwise
determined by
7
<PAGE>
the Committee, the certificate or certificates for Shares as to which the Option
shall be exercised shall contain a legend to the following effect:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND HAVE BEEN ACQUIRED FOR INVESTMENT
PURPOSES ONLY AND NOT WITH A VIEW TO THE DISTRIBUTION THEREOF, AND SUCH
SECURITIES MAY NOT BE SOLD OR TRANSFERRED UNLESS SUCH SALE OR TRANSFER
IS REGISTERED UNDER SUCH ACT OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL FOR THE HOLDER OF THESE SECURITIES SATISFACTORY TO THE COMPANY
STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE ACT, AND UNLESS SUCH SALE OR TRANSFER IS AUTHORIZED
UNDER APPLICABLE STATE LAW."
4. Extent of Exercise. This option shall be exercisable at any time in
such amounts and at such times as are set forth below:
(a) Exercisable to the extent of 25% of the Shares covered hereby on or
after the first anniversary of the date of grant set forth below ("Date of
Grant"); exercisable to the extent of an additional 25% of the Shares covered
hereby on or after the second anniversary of the Date of Grant; exercisable to
the extent of an additional 25% of the Shares covered hereby on or after the
third anniversary of the Date of Grant; and exercisable to the extent of the
remaining 25% of the Shares covered hereby on or after the fourth anniversary of
the Date of Grant.
(b) Notwithstanding paragraph 4(a) hereof, the entire unexercised portion
of this Option shall be exercisable on or after the date of the Optionee's
Retirement (as defined in the Plan).
5. Restrictions on Exercise. This Option may not be exercised if the
issuance of such Shares upon such exercise would constitute a violation of any
applicable federal or state securities law or other law or regulation. As a
condition to the exercise of this Option, the Company may require the Optionee
to make any representation and warranty to the Company as may be required by any
applicable law or regulation or may otherwise be appropriate.
6. Nontransferability of Option. This Option may not be sold, assigned,
transferred, exchanged, pledged, hypothecated, or otherwise encumbered, other
than by will or by the laws of descent and distribution. During the lifetime of
the Optionee this option is exercisable only by the Optionee. The terms of this
Option shall be binding upon the executors, administrators, heirs, successors
and assigns of the Optionee.
7. Term of Option. This Option may not be exercised more than ten (10)
years from the Date of Grant of this Option and may be exercised during such
term only in accordance with the Plan and the terms of this Agreement.
8
<PAGE>
8. Withholding. Prior to the issuance of Shares under this Option, the
Optionee shall remit to the Company and amount sufficient to satisfy any
federal, state or local withholding tax requirements. The Optionee may satisfy
the withholding requirement in whole or in part by electing to have the Company
withhold Shares having a value equal to the amount required to be withheld. The
value of the Shares to be withheld shall be the fair market value, as determined
by the Committee, of the stock on the date that the amount of tax to be withheld
is determined (the "Tax Date"). Such elections must be made prior to the Tax
Date, must comply with all applicable securities law and other legal
requirements, as interpreted by the Committee, and may not be made unless
approved in advance by the Committee, in its discretion. The Company reserves
the right to make whatever further arrangements it deems appropriate for the
withholding of any taxes in connection with any transaction contemplated by this
Agreement or the Plan.
9. Termination of Employment. If the Optionee ceases to be an employee of
the Company for any cause other than retirement, death or disability, as defined
in the Plan, the Optionee may exercise this Option during its term within three
months after the termination to the extent that this Option was exercisable at
the time of termination.
10. Merger. This Agreement supersedes any other agreement, written or oral,
between the parties with respect to the subject matter hereof.
11. Optionee Acknowledgment. Optionee acknowledges receipt of a copy of the
Plan, which is attached hereto, and represents that he or she is familiar with
the terms and provisions thereof, and hereby accepts this Option subject to all
the terms and provisions thereof. Optionee hereby agrees to accept as binding,
conclusive and final decisions or interpretations of the Committee upon any
questions arising under the Plan.
DATE OF GRANT: March 4, 1999.
CATHERINES STORES CORPORATION
By:
-------------------------
Name:
--------------------------
Title:
--------------------------
Agreed to and accepted as of the 4th day of March, 1999.
--------------------------
Diane V. Missel
9
<PAGE>
EXHIBIT 5
[Letterhead of Waring Cox, PLC]
August 25, 1999
Catherines Stores Corporation
3742 Lamar Avenue
Memphis, Tennessee 38118
Re: Registration Statement Form S-8
Gentlemen:
We have acted as counsel to Catherines Stores Corporation, a Tennessee
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8 (the "Registration Statement"), pursuant to the Securities
Act of 1933, as amended, relating to the Company's 1999 Diane V. Missel
Non-Qualified Incentive Plan (the "Plan"). This opinion is being furnished in
response to Item 601 of Regulation S-K and the instructions to Form S-8.
We are familiar with the proceedings to date with respect to the proposed
offering and have examined such records, documents and matters of law and
satisfied ourselves as to such matters of fact as we have considered relevant
for purposes of this opinion.
On the basis of the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and existing under the
laws of the State of Tennessee and is duly authorized to carry on the
business in which it is engaged.
2. The Plan has been duly and validly authorized and adopted, and the
40,000 shares of Common Stock of the Company, $0.01 par value (the
"Shares") that may be issued and sold from time to time upon the
exercise of options granted in accordance with the Plan have been duly
authorized for issuance and will, when issued, sold and paid for in
accordance with the Plan, be validly issued, fully paid and
non-assessable.
We do not purport to cover herein the application of the securities laws of
various states to sales of the Shares.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ WARING COX, PLC
-------------------
SDC/hll
1
<PAGE>
EXHIBIT 23.1
[Letterhead of Waring Cox, PLC]
August 25, 1999
Catherines Stores Corporation
3742 Lamar Avenue
Memphis, Tennessee 38118
Re: Registration Statement Form S-8
Gentlemen:
We have acted as counsel to Catherines Stores Corporation, a Tennessee
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8 (the "Registration Statement"), pursuant to the Securities
Act of 1933, as amended, relating to the Company's 1999 Diane V. Missel
Non-Qualified Incentive Plan (the "Plan"). This opinion is being furnished in
response to Item 601 of Regulation S-K and the instructions to Form S-8.
We are familiar with the proceedings to date with respect to the proposed
offering and have examined such records, documents and matters of law and
satisfied ourselves as to such matters of fact as we have considered relevant
for purposes of this opinion.
On the basis of the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and existing under the
laws of the State of Tennessee and is duly authorized to carry on the
business in which it is engaged.
2. The Plan has been duly and validly authorized and adopted, and the
40,000 shares of Common Stock of the Company, $0.01 par value (the
"Shares") that may be issued and sold from time to time upon the
exercise of options granted in accordance with the Plan have been duly
authorized for issuance and will, when issued, sold and paid for in
accordance with the Plan, be validly issued, fully paid and
non-assessable.
We do not purport to cover herein the application of the securities laws of
various states to sales of the Shares.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ WARING COX, PLC
-------------------
SDC/hll
1
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference into the Registration Statement (on Form S-8) pertaining to the
Catherines Stores Corporation 1999 Diane V. Missel Non-Qualified Incentive Plan
of our reports dated March 8, 1999, incorporated by reference in Catherines
Stores Corporation's Form 10-K for the year ended January 30, 1999, and to all
references to our firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Memphis, Tennessee
August 25, 1999
2
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officers and Directors
of Catherines Stores Corporation, a Tennessee corporation, hereby constitute and
appoint Bernard J. Wein and David C. Forell and each of them, the true and
lawful agents and attorneys-in-fact, and in any one or more of them, to sign for
the undersigned, in their respective names as Officers and Directors of the
Corporation, one or more Registration Statements on Form S-8 (or other
appropriate form) to be filed with the Securities and Exchange Commission,
Washington, D.C., under the Securities Act of 1933, as amended, and any
amendment or supplement to such Registration Statement, relating to the
Catherines Stores Corporation 1999 Diane V. Missel Non-Qualified Incentive Plan;
hereby ratifying and confirming all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Bernard J. Wein Chairman of the Board, August 23, 1999
- -------------------------------- President and Chief Executive
Bernard J. Wein Officer and Director
(Principal Executive Officer)
/s/ Stanley H. Grossman Director August 23, 1999
- ---------------------------------
Stanley H. Grossman
/s/ David C. Forell Executive Vice President, August 23, 1999
- -------------------------------- Chief Financial Officer, Secretary
David C. Forell and Director (Principal Financial
and Accounting Officer)
/s/ James H. Lindy Director August 23, 1999
- -----------------------------------
James H. Lindy
/s/ Allen B. Morgan, Jr. Director August 23, 1999
- ---------------------------------
Allen B. Morgan, Jr.
/s/ Wellford L. Sanders, Jr. Director August 23, 1999
- ---------------------------------
Wellford L. Sanders, Jr.
/s/ Elliot J. Stone Director August 23, 1999
- ---------------------------------------
Elliot J. Stone
</TABLE>
1
<PAGE>
