<PAGE>
As filed with the Securities and Exchange Commission on July 22, 1997
Registration No. 333-
-------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
DAMARK INTERNATIONAL, INC.
(Exact name of Registrant as specified in its charter)
Minnesota 41-1551116
(State of other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
7101 Winnetka Avenue North
Minneapolis, Minnesota 55428
(Address, including zip code, of Registrant's principal executive offices)
DAMARK INTERNATIONAL, INC.
1997 NONQUALIFIED STOCK OPTION PLAN
(Full Title of the Plan)
--------------------
Arlyn J. Lomen
Senior Vice President - Finance and Administration Group
Chief Financial Officer and Secretary
Damark International, Inc.
7101 Winnetka Avenue North
Minneapolis, Minnesota 55428
(612) 531-0066
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
(Cover page continued on next page)
- --------------------------------------------------------------------------------
<PAGE>
(Cover page continued from preceding page)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered offering price per share aggregate offering price registration fee
<S> <C> <C> <C> <C>
Class A Common Stock,
par value $.01 per share 40,000 shares (1) $16.25(2) $650,000 $224.14
</TABLE>
(1) Consists of 40,000 shares issuable pursuant to options issued under a
non-qualified stock option agreement in June 1997 (the "1997 Option"). The
number of shares of Class A Common Stock stated above may be adjusted in
accordance with the provisions of the 1997 Options, in the event that,
prior to the exercise of the 1997 Option there is effected any increase or
decrease in the number of issued shares of Class A Common Stock resulting
from a subdivision or consolidation of shares or the payment of a stock
dividend or any other increase or decrease in the number of shares effected
without receipt of consideration by the Company. Accordingly, this
Registration Statement covers, in addition to the number of shares of
Common Stock stated above, an indeterminate number of shares which by
reason of any such events may be issued in accordance with the provisions
of the 1997 Option.
(2) Pursuant to Rule 457(h)(1), the aggregate offering price and the amount of
the registration fee is computed based on the price of $16.25 per share,
the average of the high and low prices of the Registrant's Class A Common
Stock on The Nasdaq Stock Market on July 16, 1997, and assuming that 40,000
shares is the maximum number of the Registrant's securities issuable under
the Plan that are covered by the Registration Statement.
<PAGE>
EXPLANATORY NOTE
As permitted by the rules of the Securities and Exchange
Commission (the "Commission"), this Registration Statement
omits the information specified in Part I of Form S-8.
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3: INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Damark International,
Inc. (the "Company") (File No. 0-19902) are incorporated in this Registration
Statement on Form S-8 (the "Registration Statement") by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 29, 1997;
3. The description of the Company's Common Stock set forth in the
Company's Registration Statement on Form S-1, No. 33-45056.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all of the securities offered then remaining unsold, shall be deemed
to be incorporated herein by reference and to be a part hereof from the date of
filing of such documents.
ITEM 4: DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5: INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6: INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article V, Section 5.01 of the Bylaws of the Company provides that the
Company shall indemnify persons to the extent required by Minnesota Statutes,
Section 302A.521. Section 302A.521 provides that a corporation shall indemnify
any person who was or is made or is threatened to be made a party to any
proceeding by reason of the former or present official capacity of such person
against judgments, penalties and fines, including, without limitation, excise
taxes assessed against such person with respect to an employee benefit plan,
settlements and reasonable expenses, including attorneys' fees and
disbursements, incurred by such person in connection with the proceeding, if,
with respect to the acts or omissions of such person
II-1
<PAGE>
complained of in the proceeding, such person has not been indemnified by another
organization or employee benefit plan for the same penalties, fines, taxes and
expenses with respect to the same acts or omissions; acted in good faith;
received no improper personal benefit and Section 302A.255 (regarding conflicts
of interest), if applicable, has been satisfied; in the case of a criminal
proceeding, had no reasonable cause to believe the conduct was unlawful; and in
the case of acts or omissions by persons who are or were serving other
organizations at the request of the corporation or whose duties involve or
involved service for other organizations, reasonably believed that the conduct
was not opposed to the best interests of the corporation.
ITEM 7: EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8: EXHIBITS
4.1 Restated Articles of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 filed as part of the Company's Registration
Statement on Form S-1 (No. 33-45056))
4.2 By-laws of the Company (incorporated by reference to Exhibit 3.2 filed
as part of the Company's Registration Statement on Form S-1 (No.
33-45056))
4.3 Damark International, Inc. 1997 Stock Option Agreement with Stephen J.
Hemsley (1997 Nonqualified Stock Option Plan)
5.1 Opinion of Kaplan, Strangis and Kaplan, P.A.
23.1 Consent of Kaplan, Strangis and Kaplan, P.A. (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Powers of Attorney
ITEM 9: UNDERTAKINGS
RULE 415 OFFERING.
The Company 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-2
<PAGE>
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
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 a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective 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 (i) and (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
Company 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 herein, 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.
INCORPORATION OF SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange 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.
FORM S-8 REGISTRATION STATEMENT.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
II-3
<PAGE>
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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.
II-4
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the Company 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 Minneapolis, State of Minnesota, on July 22,
1997.
DAMARK INTERNATIONAL, INC.
By: /s/ Mark A. Cohn
---------------------------
Mark A. Cohn
Chairman, President and
Chief Executive Officer
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/ Mark A. Cohn Chief Executive Officer,
- --------------------- Chairman of the Board
Mark A. Cohn and President
(Principal Executive Officer) July 22, 1997
Senior Vice President -
/s/ Arlyn J. Lomen Finance and Administration,
- --------------------- Chief Financial Officer
Arlyn J. Lomen (Principal Financial Officer and
Principal Accounting Officer) July 22, 1997
*
- ---------------------
Thomas A. Cusick Director July 22, 1997
*
- ---------------------
Jack W. Eugster Director July 22, 1997
*
- ---------------------
Harold Roitenberg Director July 22, 1997
*
- ---------------------
Ralph Strangis Director July 22, 1997
II-5
<PAGE>
*
- ---------------------
Joel N. Waller Director July 22, 1997
*
- ---------------------
Stephen J. Hemsley Director July 22, 1997
* By /s/ Mark A. Cohn As attorney-in-fact for the
----------------- above officers and directors
Mark A. Cohn marked by an asterisk. July 22, 1997
Attorney-in-Fact
II-6
<PAGE>
EXHIBIT INDEX
Exhibit Sequentially
- ------- ------------
Number Description of Exhibit Numbered Page
- ------ ---------------------- -------------
4.1 Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 filed
as part of the Company's Registration Statement
on Form S-1 (No. 33-45056))
4.2 By-laws of the Company (incorporated by reference
to Exhibit 3.2 filed as part of the Company's
Registration Statement on Form S-1 (No. 33-45056))
4.3 Damark International, Inc. 1997 Stock Option
Agreement with Stephen J. Hemsley (1997 Nonqualified
Stock Option Plan)
5.1 Opinion of Kaplan, Strangis and Kaplan, P.A.
23.1 Consent of Kaplan, Strangis and Kaplan, P.A.
(included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Powers of Attorney
<PAGE>
EXHIBIT A
DAMARK INTERNATIONAL, INC.
STOCK OPTION AGREEMENT
THIS OPTION AGREEMENT made on June 16, 1997, by and between DAMARK
INTERNATIONAL, INC., a Minnesota corporation (the "Company"), and Stephen J.
Hemsley (the "Optionee");
W I T N E S S E T H:
WHEREAS, the Optionee has consented to serving as a director on the
Company's Board of Directors; and
WHEREAS, the Company desires to afford the Optionee an opportunity to
purchase shares of its Class A common stock, par value $.01, (the "Common
Stock"),
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto agree as
follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee the right
and option (hereinafter called the "Option") to purchase all or any part of an
aggregate of forty thousand (40,000) shares of Common Stock (the "Option
Shares") (such number being subject to adjustment as provided in Paragraph 4
hereof) on the terms and conditions herein set forth.
2. PURCHASE PRICE. Subject to the provisions of Paragraph 4 hereof, the
purchase price for the Option Shares shall be $14.25 per share, which has been
determined to be the fair market value of the Option Shares at the date of grant
of the Option.
3. TERM AND VESTING OF OPTION. The Option shall expire (the "Expiration
Date") upon the earlier to occur of: (a) the close of business on the tenth
anniversary of the date hereof or (b) one (1) year after the date on which the
Optionee is no longer a director of the Company. Prior to the Expiration Date,
the Optionee shall be entitled to exercise the Option as to all or any part of
the Option Shares for which the Option may be exercised at any time after (i)
the first anniversary of the date hereof for one-third of the total number of
Option Shares if the Optionee is then a director of the Company, (ii) the second
anniversary of the date hereof for one-third of the total number of Option
Shares if the Optionee is then a director of the Company, and (iii) the third
anniversary of the date hereof for one-third of the total number of Option
Shares if the Optionee is then a director of the Company; provided, however, in
the event of the sale of all or substantially all of the assets of the Company
or a merger, consolidation or other reorganization of the Company in which the
shareholders of the Company immediately prior to such merger, consolidation or
reorganization constitute less than eighty percent (80%) of the voting power of
the surviving corporation, all of the Option Shares shall be exercisable upon
the occurrence of such event. Notwithstanding the foregoing, the Option may in
no event be exercised by anyone
<PAGE>
to any extent in the event of a voluntary dissolution, liquidation or winding up
of the affairs of the Company, after the close of business on the later of (i)
the date of the twentieth day after the mailing of written notice of such
dissolution, liquidation or winding up, and (ii) the record date for
determination of holders of Common Stock entitled to participate therein.
4. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. If all or any portion
of this Option shall be exercised subsequent to any share dividend,
recapitalization, merger, consolidation, exchange of shares or reorganization as
a result of which shares of any class shall be issued in respect to outstanding
Common Stock, or if Common Stock shall be changed into the same or a different
number of shares of the same or another class or classes, the person so
exercising this Option shall receive, for the aggregate price paid upon such
exercise, the aggregate number and class of shares to which they would have been
entitled if Common Stock (as authorized at the date hereof) had been purchased
at the date hereof for the same aggregate price (on the basis of the price per
share set forth in Paragraph 2 hereof) and had not been disposed of. No
fractional share shall be issued upon any such exercise and the aggregate price
paid shall be appropriately reduced on account of any fractional share not
issued.
5. METHOD EXERCISE. Subject to the terms and conditions of this
Agreement, the Option may be exercised by written notice to the Company at its
principal office and place of business in the State of Minnesota. Such notice
shall state the election to exercise the Option and the number of Option Shares
in respect of which it is being exercised, and shall be signed by the person so
exercising the Option. Such notice shall be accompanied by the payment of the
full purchase price of such Option Shares and the delivery of such payment to
the Treasurer of the Company. The certificate for the Option Shares as to which
the Option shall have been so exercised shall be registered in the name of the
person exercising the Option. If the Optionee shall so request in the notice
exercising the Option, the certificate shall be registered in the name of the
Optionee and another person jointly with right of survivorship, and shall be
delivered as provided above to or upon the written order of the person
exercising the Option. In the event the Option shall be exercised by any person
other than Optionee, such notice shall be accompanied by appropriate proof of
the right of such person to exercise the Option.
6. RESERVATION OF SHARES. The Company shall, at all times during the
term of the Option, reserve and keep available such number of shares of its
capital stock as will be sufficient to satisfy the requirements of this
Agreement, and shall pay all original issue and transfer taxes with respect to
the issue and transfer of Option Shares pursuant hereto, and all other fees and
expenses necessarily incurred by the Company in connection therewith.
7. NO RIGHTS AS STOCKHOLDER. The holder of the Option shall not have any
of the rights of a stockholder with respect to the Option Shares covered by the
Option except to the extent that one or more certificates for shares shall be
delivered to him upon the due exercise of the Option.
8. NO REGISTRATION REQUIREMENTS AND INVESTMENT PURPOSE. The Company
shall not be deemed by reason of issuance of any shares under the Option to have
any obligation to register such shares under the Securities Act of 1933, as
amended, or maintain in effect any registration of such Option Shares. In
addition, unless the Option Shares have been so registered, the Option
<PAGE>
is granted on the condition that the acquisition of shares hereunder shall be
for investment purposes only and the person acquiring Option Shares upon
exercise of the Option must bear the economic risk of the investment for an
indefinite period of time since the shares so acquired cannot be sold unless
they are subsequently registered or an exemption from such registration is
available. Optionee agrees that a legend may be placed on the stock
certificates acknowledging the restrictions on subsequent distribution of the
shares issued upon exercise of this Option.
9. MISCELLANEOUS. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their heirs, successors, assigns and
representatives and shall be governed by the laws of the State of Minnesota.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and
year first above written.
DAMARK INTERNATIONAL, INC.
By
------------------------------------
Mark A. Cohn, Chairman and
Chief Executive Officer
--------------------------------------
Stephen J. Hemsley
<PAGE>
[LETTERHEAD]
July 15, 1997
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street NW
Washington, D.C. 20549
RE: Damark International, Inc.
Form S-8 Registration Statement (the "Registration Statement")
for Damark International, Inc. 1997 Nonqualified Stock Option Plan
Ladies and Gentlemen:
This opinion is furnished in connection with the Registration Statement on
Form S-8 (the "Registration Statement") filed with the Securities and Exchange
Commission by Damark International, Inc. (the "Company") covering shares of
Class A Common Stock, par value $.01 (the "Common Stock"), reserved for issuance
under Damark International, Inc. 1997 Nonqualified Stock Option Plan (the
"Plan").
We have acted as counsel to the Company and, as such, have examined the
Company's Articles of Incorporation, Bylaws and such other corporate records and
documents as we have considered relevant and necessary for the purpose of this
opinion. We have participated in the preparation and filing of the Registration
Statement. We are familiar with the proceedings taken by the Company with
respect to the authorization and proposed issuance of shares of Common Stock
pursuant to the Plan as contemplated by the Registration Statement.
Based on the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing and in
good standing under the laws of the State of Minnesota.
2. The Company has corporate authority to issue the shares of Common
Stock covered by the Registration Statement.
<PAGE>
Page II-16
3. The 40,000 shares of Common Stock proposed to be issued under the Plan
described in the Registration Statement will, when sold and paid for, be duly
and validly issued, fully paid and non-assessable.
We hereby consent to the reference to our firm in the Registration
Statement.
Sincerely,
KAPLAN, STRANGIS AND KAPLAN, P.A.
By: /s/ Catherine A. Bartlett
------------------------------
Catherine A. Bartlett
CAB:kmh
<PAGE>
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 January 20, 1997
included or incorporated by reference in Damark International, Inc.'s Form 10-K
for the year ended December 31, 1996 and to all references to our Firm included
in this registration statement.
/s/ Arthur Andersen LLP
Minneapolis, Minnesota
July 14, 1997
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
I, the undersigned Director of Damark International, Inc. do hereby name,
constitute and appoint Mark A. Cohn and Arlyn J. Lomen, and each of them, my
agent and attorney-in-fact, for me and in my behalf as a Director of Damark
International, Inc. to sign and execute a Registration Statement on Form S-8 and
any amendments thereto, relating to the registration with the Securities and
Exchange Commission of 40,000 shares of Class A Common Stock, par value $.01 per
share, of Damark International, Inc. under a director non-qualified option
shares under director non-qualified option plan.
Executed as of July 17, 1997.
/s/ Mark A. Cohn /s/ Harold Roitenberg
- ----------------------------------- -----------------------------------
Mark A. Cohn Harold Roitenberg
/s/ Thomas A. Cusick /s/ Ralph Strangis
- ----------------------------------- -----------------------------------
Thomas A. Cusick Ralph Strangis
/s/ Jack W. Eugster /s/ Joel N. Waller
- ----------------------------------- -----------------------------------
Jack W. Eugster Joel N. Waller
/s/ Stephen J. Hemsley
- -----------------------------------
Stephen H. Hemsley
