As filed with the Securities and Exchange Commission
on November 9, 1998
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FILENE'S BASEMENT CORP.
(Exact name of registrant as specified in its charter)
Massachusetts 04-3016733
(State or other jurisdiction (I.R.S. Employer
of Identification Number)
incorporation or
organization)
40 Walnut Street, Wellesley, 02481
Massachusetts (Zip Code)
(Address of Principal
Executive Offices)
1998 STOCK INCENTIVE PLAN
(Full title of the plan)
Steven R. Siegel
Filene's Basement Corp.
40 Walnut Street
Wellesley, Massachusetts 02481
(Name and address of agent for service)
(617) 348-7000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount to Proposed Proposed Amount of
securities be maximum maximum registration
to be registered offering aggregate fee
registered price per offering
share price
Common 750,000 $1.83 $1,372,500 $382.00
Stock $.01 shares (1) (1) _
par value
(1) Estimated solely for purposes of calculating the
registration fee, and based upon the average of the high and
low prices of the Registrant's Common Stock as reported by
the Nasdaq National Market on November 3, 1998 in
accordance with Rules 457(c) and 457(h) of the Securities
Act of 1933.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is
included in documents sent or given to participants in the 1998
Stock Incentive Plan of Filene's Basement Corp., a Massachusetts
corporation (the "Registrant"), pursuant to Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant is subject to the informational and
reporting requirements of Sections 13(a), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
and in accordance therewith files reports, proxy statements and
other information with the Securities and Exchange Commission
(the "Commission"). The following documents, which are filed
with the Commission, are incorporated in this Registration
Statement by reference:
(1) The Registrant's latest annual report filed
pursuant to Sections 13(a) or 15(d) of the Exchange Act, or
the latest prospectus filed pursuant to Rule 424(b) under
the Securities Act that contains audited financial
statements for the Registrant's latest fiscal year for which
such statements have been filed.
(2) All other reports filed pursuant to Sections 13(a)
or 15(d) of the Exchange Act since the end of the fiscal
year covered by the annual reports or the prospectus
referred to in (1) above.
(3) The description of the common stock of the
Registrant, $.01 par value per share (the "Common Stock"),
contained in a registration statement filed under Section 12
of the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment which
indicates that all shares of Common Stock offered hereby have
been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference
herein and to be part hereof from the date of the filing of such
documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification
Section 67 of Chapter 156B of the Massachusetts General
Laws ("Section 67") provides that a corporation may indemnify its
directors and officers to the extent specified in or authorized
by (i) the articles of organization, (ii) a by-law adopted by the
stockholders, or (iii) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election
of directors. In all instances, the extent to which a
corporation provides indemnification to its directors and
officers under Section 67 is optional.
Section 6.18 of the Registrant's Restated Articles of
Organization provides that the Registrant shall indemnify its
directors and officers, including the heirs, executors and
administrators of such directors or officers, against liabilities
and expenses arising out of legal proceedings brought against
them by reason of their being or having been directors or
officers or by reason of their agreeing to serve, at the request
of the Registrant, as directors or officers of, or in a similar
capacity with, another organization or in any capacity with
respect to any employee benefit plan of the Registrant. Under
this provision, a director or officer of the Registrant shall be
indemnified by the Registrant against all liabilities and
expenses, including amounts paid in satisfaction of judgments,
fines and settlements of proceedings, and counsel fees, even if
he or she is not successful on the merits, unless he or she is
adjudicated not to have acted in good faith in the reasonable
belief that his or her actions were in the best interest of the
Registrant or, in the case of any employee benefit plan, in the
best interest of the participants in or beneficiaries of such
plan.
As to any matter disposed of by a compromise payment by
a director or officer, Section 6.18 of the Registrant's Restated
Articles of Organization permits indemnification only if such
compromise is approved as in the best interest of the Registrant
by (a) a disinterested majority of the directors then in office,
(b) a majority of the disinterested directors then in office, if
independent legal counsel has opined in writing that such
director or officer appears to have acted in good faith in the
reasonable belief that his or her actions were in the best
interest of the Registrant, or (c) the holders of a majority of
the outstanding stock then entitled to vote for directors, voting
as a single class, exclusive of any stock owned by any interested
director or officer (an "interested director or officer" being
one against whom the proceedings in question or another
proceeding on the same or similar grounds is then pending).
The Registrant may authorize advancing litigation
expenses to a director or officer upon receipt of an undertaking
by such director or officer to repay such expenses if it is
ultimately determined that he or she is not entitled to
indemnification for such expenses.
The right of indemnification provided under Section
6.18 of the Registrant's Restated Articles of Organization does
not affect any other rights to which an director or officer is
otherwise entitled under contract or law.
Section 16.10 of the Registrant's Restated Articles of
Organization eliminates the personal liability of the
Registrant's directors to the Registrant or its stockholders for
monetary damages for breach of a director's fiduciary duty,
except to the extent such exculpation is prohibited under the
Massachusetts Business Corporation Law at the time liability for
such breach is determined.
The Registrant has purchased a general liability
insurance policy which covers certain liabilities of directors
and officers of the Registrant arising out of claims based on
acts or omissions in their capacity as directors or officers.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
Item 9. Undertakings
1. The 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;
(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 the Registration Statement.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table herein; and
(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 (i) and (ii) do not apply
if this 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 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, 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.
2. The Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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 in the initial bona fide
offering thereof.
3. Insofar as indemnification for liabilities arising
under the Securities 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 whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Wellesley, Massachusetts on the 5th day of November, 1998.
FILENE'S BASEMENT CORP.
By: /s/ Steven R. Siegel
Steven R. Siegel
Executive Vice President,
Chief Financial Officer,
Treasurer, General Counsel
and Clerk
POWER OF ATTORNEY
We, the undersigned officers and directors of Filene's
Basement Corp., hereby severally constitute W. Jay Carothers,
Steven R. Siegel and Philip P. Rossetti, and each of them singly,
our true and lawful attorneys with full power to them, and each
of them singly, to sign for us and in our names in the capacities
indicated below, the Registration Statement on Form S-8 filed
herewith and any and all subsequent amendments to said
Registration Statement, and generally to do all such things in
our names and behalf in our capacities as officers and directors
to enable Filene's Basement Corp. to comply with all requirements
of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by said
attorneys, or any of them, to said Registration Statement and any
and all amendments thereto.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ W. Jay Carothers President, Chief Operating November 5, 1998
W. Jay Carothers Officer and Director
/s/ Samuel J. Gerson Chairman, Chief Executive November 5, 1998
Samuel J. Gerson Officer and Director
/s/ Steven R. Siegel Executive Vice President, November 5, 1998
Steven R. Siegel Chief Financial Officer,
Treasurer, General Counsel and Clerk
/s/ Mone Anathan, III Director November 5, 1998
Mone Anathan, III
/s/ John Eyler Director November 5, 1998
John Eyler
/s/ Dorsey R. Gardner Director November 5, 1998
Dorsey R. Gardner
/s/ Robert P. Henderson Director November 5, 1998
Robert P. Henderson
/s/ Harold Leppo Director November 5, 1998
Harold Leppo
/s/ Paul D. Paganucci Director November 5, 1998
Paul D. Paganucci
Exhibit Index
Exhibit
Number Description
4.1(1) Restated Articles of Organization of the
Registrant
4.2(1) Amended and Restated By-Laws of the
Registrant
4.3(1) Specimen Certificate for shares of Common
Stock, $.01 par value per share, of the
Registrant
5 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in
Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included on the
signature page of this Registration
Statement)
____________________________
1 Incorporated herein by reference to the Registrant's
Registration Statement on Form S-1 (Commission File
No. 33-39901).
EXHIBIT 5
HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
November 5, 1998
Filene's Basement Corp.
40 Walnut Street
Wellesley, Massachusetts 02181
Re: 1998 Stock Incentive Plan
Ladies and Gentlemen:
We have assisted in the preparation of a Registration
Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission (the "Commission")
relating to 750,000 shares of common stock, $.01 par value per
share (the "Shares"), of Filene's Basement Corp., a Massachusetts
corporation (the "Company"), issuable under the Company's 1998
Stock Incentive Plan (the "Plan").
We have examined the Restated Articles of Organization and
the Amended and Restated By-Laws of the Company, and originals, or
copies certified to our satisfaction, of all pertinent records of
the meetings of the directors and stockholders of the Company, the
Registration Statement and such other documents relating to the
Company as we have deemed material for the purposes of this
opinion.
In examination of the foregoing documents, we have assumed
the genuineness of all signatures and the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified,
photostatic or facsimile copies, the authenticity of the originals
of such latter documents and the legal competence of all
signatories to such documents.
We assume that the appropriate action will be taken, prior to
the offer and sale of the shares in accordance with the Plan, to
register and qualify the shares for sale under all applicable
state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state
or jurisdiction other than the state laws of the Commonwealth
of Massachusetts and the federal laws of the United States of
America.
Based upon and subject to the foregoing, we are of the
opinion that the Company has duly authorized for issuance the
Shares covered by the Registration Statement to be issued
under the Plan, as described in the Registration Statement,
and such Shares, when issued in accordance with the terms of
the Plan, will be legally issued, fully paid and
nonassessable.
It is understood that this opinion is to be used only in
connection with the offer and sale of the Shares while the
Registration Statement is in effect.
Please note that we are opining only as to the matters
expressly set forth herein, and no opinion should be inferred
as to any other matters.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement in
accordance with the requirements of Item 601(b)(5) of
Regulation S-K under the Securities Act of 1933, as amended
(the "Securities Act"). In giving such consent, we do not
hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or
the rules and regulations of the Commission.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
EXHIBIT 23.1
Washington, DC Boston, MA London,UK*
HALE AND DORR LLP INCLUDES PROFESSIONAL CORPORATIONS
*BROBECK HALE AND DORR INTERNATIONAL (AN INDEPENDENT JOINT VENTURE
LAW FIRM)
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 fax 617-526-5000
Christian M. Ehrbar
617-526-6605
[email protected]
November 6, 1998
BY ELECTRONIC SUBMISSION
Securities and Exchange Commission
Division of Corporation Finance
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549-1004
Re: Filene's Basement Corp.
1998 Stock Incentive Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
Submitted herewith for filing on behalf of Filene's Basement
Corp. (the "Company"), and for the purpose of registering 750,000
shares of the Company's Common Stock, $.01 par value per share,
is a Registration Statement on Form S-8 for the Company's 1998
Stock Incentive Plan (the "Plan"). This filing is being effected
by direct transmission to the Commission's EDGAR System.
On November 6, 1998, in anticipation of this filing, the
Company caused the filing fee of $382.00 to be transferred by
wire to the Commission's account at the Mellon Bank in
Pittsburgh, Pennsylvania.
If you have any questions about this filing, please contact
the undersigned at (617) 526-6605. Thank you very much for your
assistance.
Very truly yours,
/s/ Christian M. Ehrbar
Enclosures
cc: Steven R. Siegel, Esq.
Philip P. Rossetti, Esq.
Peter L. Gray, Esq.
EXHIBIT 23.2
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of
our report dated March 16, 1998 included in Filene's Basement
Corporation's Form 10-K for the year ended January 31, 1998
and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
November 6, 1998
