<PAGE> 1
Registration No. 333-
----------------
Securities and Exchange Commission
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THE DEWOLFE COMPANIES, INC.
(Exact name of issuer as specified
in its charter)
MASSACHUSETTS 04-2895334
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
80 Hayden Avenue, Lexington, Massachusetts 02173
(Address of principal executive offices)
THE DEWOLFE COMPANIES, INC.
1992 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
Richard B. DeWolfe
The DeWolfe Companies, Inc.
80 Hayden Avenue
Lexington, Massachusetts 02173
(617) 863-5858
Copies to:
Patrick J. Kinney, Jr., Esq.
Lynch, Brewer, Hoffman & Sands, LLP
101 Federal Street
Boston, Massachusetts 02110
(617) 951-0800
(Name, address and telephone number of agent for service)
Approximate date of Commencement of Sale pursuant to the plan: Upon
issuance and exercise of options.
<TABLE>
CALCULATION OF REGISTRATION FEE
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<CAPTION>
Title of Proposed Proposed
securities Amount maximum maximum Amount of
of to be to be offering price aggregate offer- registra-
registered registered(1) per share(2) ing price tion fee
---------- ------------- ------------ --------- --------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par
value 100,000 $5.31 $531,000 $161.91
<FN>
(1) The registration statement also includes an indeterminable number of
additional shares that may become issuable as a result of terminated,
expired or surrendered options or pursuant to the antidilution
provisions of the Plan.
(2) Computed on the basis of the closing sales price of securities of the
same class, as reported on the American Stock Exchange on December 23,
1996.
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Certain important information is set forth in certain reports or statements
filed by The DeWolfe Companies, Inc. (the "Company") with the Securities and
Exchange Commission. The reports or documents listed below are incorporated
herein by reference:
(a) The DeWolfe Companies, Inc.'s (the "Company") latest Annual Report
on Form 10-K for the fiscal year ended December 31, 1995 (which incorporates by
reference certain portions of the Company's Proxy Statement for the Company's
1996 Annual Meeting of Stockholders held on May 14, 1996);
(b) The Company's latest Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1996;
(c) The Company's latest Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1996;
(d) The Company's latest Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1996;
(e) All other reports filed by the Company pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 for periods since September 30,
1996;
(f) The information set forth under "Description of Registrant's
Securities to be Registered" in the Company's Registration Statement on Form 8-A
filed on April 15, 1995 (File No. 1-11278) (which incorporates by reference the
description of the Company's securities contained in the Company's Registration
Statement on Form S-18 (File No. 33-48113-B); and
(g) The Company's Registration Statements on Form S-8 (Registration
Nos. 33-56504 and 33-84136).
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, 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 and to be a part hereof from the date of filing
such reports and documents.
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Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. EXPERTS
The consolidated financial statements of The DeWolfe Companies, Inc.
appearing in The DeWolfe Companies, Inc. Annual Report (Form 10-K) for the year
ended December 31, 1995, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 67 of the Massachusetts Business Corporation Law and Section 9
of the By-Laws of the Company provide for indemnification of directors and
officers under certain circumstances. In addition, Article 6 of the Company's
Restated Articles of Organization provides for the limitation of liability of
directors under certain circumstances.
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.
A. 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) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement which,
individually or in the
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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 information required to be in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the Company pursuant to Section 13 or Section 15(d) of the
Securities Exchange 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 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
Plan.
B. 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 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. Insofar as indemnification for liabilities 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, 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
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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 of 1933 and will be governed by the final
adjudication of such issue.
SIGNATURES
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 City of Lexington, Massachusetts, on this 26th day of December,
1996.
THE DEWOLFE COMPANIES, INC.
By/s/ Richard B. DeWolfe
------------------------------------
Richard B. DeWolfe, President
(Principal Executive Officer)
By/s/ James A. Marcotte
------------------------------------
James A. Marcotte
Senior Vice President
(Principal Financial Officer)
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POWER OF ATTORNEY
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. By so signing, each of the undersigned in
his capacity as a director or officer, or both, as the case may be, does hereby
appoint Richard B. DeWolfe, Edward S. Brewer, Jr. and Patrick J. Kinney, Jr., or
any one of them acting singly, his lawful attorney to execute in his name, place
and stead, any and all amendments to said Registration Statement and all
instruments necessary or incidental in connection therewith, and to file the
same with the Securities and Exchange Commission. Said attorney shall have the
full powers and authority to do and perform in the name and on behalf of each of
the undersigned, in any and all capacities, every act whatsoever requisite or
necessary to be done in the premises as fully, and to all intents and purposes,
as each of the undersigned might do in person, hereby ratifying, and approving
the acts of such attorney.
<TABLE>
<CAPTION>
Title Date
----- ----
<S> <C> <C>
/s/ Richard B. DeWolfe Chairman of the December 26, 1996
- ------------------------------------- Board, President,
Richard B. DeWolfe Chief Executive
Officer, and
Treasurer
/s/ James A. Marcotte Senior Vice December 26, 1996
- ------------------------------------- President, Chief
James A. Marcotte Financial Officer,
and Chief Accounting
Officer
/s/ A. Clinton Allen Director December 26, 1996
- -------------------------------------
A. Clinton Allen
/s/ R. Robert Popeo Director December 26, 1996
- -------------------------------------
R. Robert Popeo
/s/ Paul R. Del Rossi Director December 23, 1996
- -------------------------------------
Paul R. Del Rossi
</TABLE>
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<TABLE>
EXHIBIT INDEX
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<CAPTION>
Exhibit Sequentially
Number Description Numbered Page
- ------ ----------- -------------
<S> <C> <C>
4.1 Restated Articles of Organization of the Company
[incorporated herein by reference to the Company's
Registration Statement on Form S-18 (File No.
33-48113-B)] N/A
4.2 By-laws of the Company [incorporated by reference
to the Company's Registration Statement on
Form S-18 (File No. 33-48113-B)] N/A
4.3 Specimen Stock Certificate [incorporated by reference
to the Company's Registration Statement on
Form S-18 (File No. 33-48113-B)] N/A
4.4 The Company's 1992 Non-Employee Director Stock
Option Plan, as amended 8
5 Opinion of Lynch, Brewer, Hoffman & Sands, LLP 13
23.1 Consent of Lynch, Brewer, Hoffman & Sands, LLP N/A
(included in Exhibit 5)
23.2 Consent of Ernst & Young LLP 14
24 Power of Attorney 6
99 Copy of Section 67 of the Massachusetts Business
Corporation Law with respect to indemnification of
officers and directors (incorporated by reference to the
Company's Registration Statement on Form S-18
(File No. 33-48113-B)) N/A
</TABLE>
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THE DEWOLFE COMPANIES, INC.
1992 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. STATEMENT OF PURPOSE. This 1992 Non-employee Director Stock Option Plan
(the "Plan") intended to promote the interests of The DeWolfe Companies, Inc., a
Massachusetts corporation (the "Company") by offering non-employee members of
the Board of Directors of the Company (individually a "Non-employee Director"
and collectively "Non-employee Directors") the opportunity to participate in a
special stock option program designed to provide them with significant
incentives to remain in the service of the Company.
2. ELIGIBILITY. Each Non-employee Director shall be eligible to receive
automatic grants of non-statutory options under this Plan (individually an
"Option" and collectively "Options") pursuant to the provisions of Section 4
hereof.
Except for the automatic grants of Options to be made pursuant to the
provisions of Section 4 hereof, Non-employee Directors shall not be eligible to
receive any additional option grants or stock issuance under this Plan or
another stock plan of the Company or any of its affiliates.
3. STOCK SUBJECT TO PLAN. The stock issuable under this Plan shall be
shares of the Company's Common Stock, par value $.01 per share (the Common
Stock). Such shares may be made available from authorized but unissued shares of
Common Stock or shares of Common Stock reacquired by the Company. The aggregate
number of shares of Common Stock issuable upon exercise of Options under this
Plan shall not exceed 200,000 shares, subject to adjustment from time to time in
accordance with Section 9 hereof.
4. Automatic Granting of Options.
-----------------------------
(a) INITIAL GRANT OF OPTIONS. Each individual who was serving as a Non-
employee Director on May 21, 1992 shall be automatically granted, on such date,
an Option to purchase 12,000 shares of Common Stock. Each individual who is
initially elected or appointed as a Non-employee Director subsequent to May 21,
1992 shall receive, as the date of his or her initial election or appointment,
an automatic grant of an Option to purchase 12,000 shares of Common Stock.
Subject to the provisions of Section 9 hereof, each option granted pursuant
to this Section 4(a)(herein referred to individually as an "Initial Option" and
collectively as "Initial Options") shall be for a term of ten (10) years. Each
Initial Option shall become exercisable cumulatively in twenty-four (24) equal
monthly increments of 500 shares, each commencing on the same numerical day of
the
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month following the date of automatic grant pursuant to this Section 4(a).
Subject to the foregoing, all or any part of the shares to which the right to
purchase has accrued may be purchased at the time of such accrual or at any time
or times thereafter during the option period.
(b) ANNUAL GRANT OF OPTIONS. Commencing with the first business day of
calendar year 1993, and continuing in effect for the first business day of each
subsequent calendar year, each individual who is at the time serving as a Non-
employee Director shall receive an additional automatic grant of an Option to
purchase 5,000 shares of Common Stock. Each Option granted pursuant to this
Section 4(b)(herein referred to individually as an "Annual Option" or
collectively as "Annual Options") shall be for a term of ten (10) years. Each
Annual Option shall become exercisable for any or all of the shares covered by
such Option immediately upon the date of automatic grant pursuant to this
Section 4(b). The Annual Option shall thereafter remain so exercisable until the
expiration or sooner termination of the Option term.
The foregoing automatic grant dates under Sections 4(a) and 4(b) are herein
referred to individually as an "Automatic Grant Date" and collectively as
"Automatic Grant Dates" and the Non-employee Directors receiving Options are
herein referred to individually as an "Optionee" and collectively as
"Optionees." Options granted under this Plan are not intended to be treated as
incentive stock options as defined in Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code").
In the event that an Option expires or is terminated or canceled
unexercised as to any shares of Common Stock, the shares subject to the Option,
or portion thereof not so exercised, shall be available for subsequent automatic
Option grants under this Plan.
Should the total number of shares of Common Stock at the time available
under this Plan not be sufficient for the automatic grants to be made at that
particular time, the available shares shall be allocated proportionately among
all automatic Option grants to be made at that time.
5. EXERCISE PRICE. The price per share payable upon exercise of an Option
("Exercise Price") shall be the fair market value per share of Common Stock as
of the applicable Automatic Grant Date.
For purposes of establishing the Exercise Price, the "fair market value"
per share of the Common Stock on any relevant date shall be deemed to be the
mean of the bid and asked prices of the Common Stock at the close of the trading
day next preceding the applicable Automatic Grant Date, except that if the
Common Stock is then listed on any national exchange, fair market value shall be
the mean
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between the high and low sales prices on the date nest preceding the applicable
Automatic Grant Date. Until the earlier of: (a) the date on which the shares of
the Company's Common Stock are first listed on an interdealer quotation system;
and (b) July 1, 1992, the fair market value of shares of Common Stock for
purposes of calculation of the Exercise Price shall be deemed to be $6.00 per
share, provided, however, that with respect to each option granted with an
exercise price of $6.00 per share as provided in this sentence, each option
agreement evidencing such option shall provide that if the Company's accountant
should, at any time subsequently determine that the fair market value of a share
of the Common Stock on the date of grant of such option was in excess of $6.00
per share so as to require the Company to accrue as an expense in its income
statement for the period during which such option was granted an amount equal to
the difference between the fair market value of a share of the Common Stock on
the date of grant, as subsequently determined, and the exercise price of $6.00
per share, then instead of accruing such expense, such option agreement shall be
canceled and replaced retroactively as of the date of such grant with an option
agreement, the exercise price of which is such higher amount as would enable the
Company to account for such grant of option without requiring the Company to
accrue any such additional expense in its income statement for such period. In
no event shall the Exercise Price be less than the par value of a share of
Common Stock.
6. EXERCISE OF OPTION. An Option may be exercised by giving written notice
to the Company, attention of the Clerk, specifying the number of shares to be
purchased, accompanied by the full purchase price for the shares to be purchased
either in cash, by check, or by shares of the Common Stock of the Company, or by
a combination of these methods.
At any time of any exercise of any Option, the Company may, if it shall
determine it necessary or desirable for any reason, require the Optionee (or his
heirs, legatees or legal representative, as the case may be) as a condition upon
the exercise thereof, to deliver to the Company a written representation of
present intention to purchase the shares for investment and not for
distribution. In the event such representation is required to be delivered, an
appropriate legend may be placed upon each certificate delivered to the Optionee
(or his or her heirs, legatees or legal representative, as the case may be) upon
his or her exercise of part or all of the Option and a stop transfer order may
be placed with the transfer agent. Each Option shall also be subject to the
requirement that, if at any time the Company determines, in its discretion, that
the listing, registration or qualification of the shares subject to the Option
upon any securities exchange or under any state or federal law or the consent or
approval of any governmental regulatory body is necessary or desirable as a
condition of or in connection with the issue or purchase of shares thereunder,
the Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Company.
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At the time of the exercise of any Option the Company may require, as a
condition of the exercise of such Option, the Optionee to pay the Company an
amount equal to the amount of tax the Company may be required to withhold to
obtain a deduction for federal income tax purposes as a result of the exercise
of such Option by the Optionee.
7. TERMINATION OF BOARD MEMBERSHIP - EXERCISE THEREAFTER. Should an
Optionee cease to be a member of the Board of Directors of the Company for any
reason other than death or permanent disability, such Optionee's Options shall
cease to vest and shall expire, and all rights to purchase shares pursuant
thereto shall terminate immediately.
Should an Optionee cease to be a member of the Board of Directors of the
Company because of death or permanent disability (as that term is defined in
Section 22(e)(3) of the Code, as now in effect or as subsequently amended), such
Options may be exercised in full, without regard to any installments established
under Section 4 hereof, by the Optionee or, if he or she is not living, by his
or her heirs, legatees or legal representatives, as the case may be, during
their specified term prior to three years after the date of death or permanent
disability.
8. NON-TRANSFERABILITY. Options shall not be assignable or transferable by
the Optionee otherwise than by will or by the laws of descent and distribution,
or pursuant to a qualified domestic relations order as defined by the Code, or
Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the rules thereunder. Subject to the foregoing, during the
lifetime of the Optionee, Options shall be exercisable only by the Optionee.
9. ADJUSTMENTS. The number of shares subject to this Plan and to Options
granted under this Plan shall be adjusted as follows: (a) in the event that the
number of outstanding shares of Common Stock is changed by any stock dividend,
stock split or combination of shares, the number of shares subject to this Plan
and to Options granted hereunder shall be proportionately adjusted; (b) in the
event of any merger, consolidation or reorganization of the Company with any
other corporation or corporations, there shall be substituted, on an equitable
basis for each share of Common Stock then subject to this Plan, whether or not
at the time subject to outstanding Options, the number and kind of shares of
stock or other securities to which the holders of shares of Common Stock will be
entitled pursuant to the transaction; and (c) in the event of any other relevant
change in the capitalization of the Company, an equitable adjustment shall be
made in the number of shares of Common Stock then subject to this Plan, whether
or not then subject to outstanding Options. In the event of any such adjustment
the Exercise Price per share shall be proportionately adjusted.
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10. AMENDMENT OR DISCONTINUANCE OF PLAN. This Plan may from time to time be
amended or discontinued by action of the Board of Directors or by the
stockholders of the Company; provided that (i) no such amendment or
discontinuance shall change or impair any Options previously granted without the
consent of the Optionee; (ii) the provisions of this Plan relating to the amount
of shares which may be subject to Options, the Automatic Grant Dates and/or the
Exercise Price shall not be amended more than once every six months, other than
to comport with changes in the Code and/or ERISA, and/or the rules thereunder,
unless such amendments are ratified by the stockholders; and (iii) any amendment
which would (A) materially increase the benefits accruing to participants under
this Plan, (B) materially increase the number of securities which may be issued
under this Plan and/or (C) materially modify the requirements as to eligibility
for participation in this Plan shall require the approval of the stockholders of
the Company.
11. NO IMPAIRMENT OF RIGHTS. Nothing in this Plan or any automatic grant
made pursuant to this Plan shall be construed or interpreted so as to affect
adversely or otherwise impair the Company's right to remove any Optionee from
service on the Board of Directors of the Company at any time in accordance with
the provisions of applicable law.
12. HOLDING PERIOD. Anything contained in the Plan to the contrary
notwithstanding, any disposition of an Option otherwise permitted by the terms
of the Plan, or of the Common Stock acquired upon exercise of an Option, shall
be subject to compliance with the requirements of paragraph (d)(3) of Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended, applicable to
such disposition, and any date, period or procedure specified or referred to in
the Plan with respect to any such disposition shall be adjusted, if necessary,
so as to give effect to this Section 12.
13. EFFECTIVE DATE. This Plan was adopted and authorized by the Board
of Directors and stockholders of the Company on May 21, 1992, and became
effective on May 21, 1992. The amendment of the Plan whereby the number of
shares reserved for issuance under the Plan was increased from 100,000 shares to
200,000 shares was approved by the Board of Directors on February 27, 1996, and
approved by the stockholders effective as of such date. The Plan was amended by
the Board of Directors on November 1, 1996 to comport with recent amendments to
Rule 16(b)-3 promulgated under the Securities Exchange Act of 1934, as amended.
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Exhibit 23.1
December 30, 1996
Securities and Exchange Commission
450 Fifth Street N.W.
Washington, D.C. 20549
RE: Registration of 100,000 shares of Common Stock of The DeWolfe
Companies, Inc. on SEC Form S-8 Registration Statement
-----------------------------------------------------------------
Gentlemen:
Our opinion, as counsel for The DeWolfe Companies, Inc. (the "Company"),
has been solicited in connection with the registration under the Securities Act
of 1933 of an additional 100,000 shares of Common Stock, $.01 par value ("Common
Stock"), to be issued by the Company pursuant to the Company's 1992 Non-Employee
Director Stock Option Plan (the "Option Plan") as more particularly set forth in
the Registration Statement on Form S-8 to be filed with the Securities and
Exchange Commission on or about December 30, 1996.
We have examined the Articles of Organization of the Company, the By-laws
and minute books of the Company, the Option Plan, and the pertinent statutes of
the Commonwealth of Massachusetts.
Based upon the foregoing, we are of the opinion that the shares of Common
Stock being offered by the Company pursuant to said Registration Statement will
be, when issued and paid for in accordance with the terms of the Option Plan,
legally issued, fully paid and non-assessable.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement.
Very truly yours,
LYNCH, BREWER,
HOFFMAN & SANDS, LLP
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
The Board of Directors
THE DEWOLFE COMPANIES, INC.
We consent to the reference to our firm under the caption "Experts" in this
Registration Statement (Form S-8) pertaining to The DeWolfe Companies, Inc. 1992
Non-Employee Director Stock Option Plan and to the incorporation by reference
therein of our report dated February 26, 1996 with respect to the consolidated
financial statements and schedules of The DeWolfe Companies, Inc. included in
its Annual Report (Form 10-K) for the year ended December 31, 1995 filed with
the Securities and Exchange Commission.
Ernst & Young LLP
Boston, Massachusetts
December 24, 1996
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