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As filed with the Securities and Exchange Commission on June 12, 1996
Registration Statement No. 33-____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
______________________
D.I.Y. HOME WAREHOUSE, INC.
(Exact name of registrant as specified in its charter)
OHIO 38-2560752
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5811 CANAL ROAD
VALLEY VIEW, OHIO 44125
(216) 328-5100
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
______________________
D.I.Y. HOME WAREHOUSE, INC. 1996 RETAINER
STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the plan)
______________________
DAVID D. WARNER, ESQUIRE
Jaffe, Raitt, Heuer & Weiss
Professional Corporation
One Woodward Avenue, Suite 2400
Detroit, Michigan 48226
(313) 961-8380
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Share(1) Aggregate Offering Price Registration Fee
- ------------------- -------------- ------------------------ ------------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock 25,000 $5.50 $137,500 $100
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(1) The offering price and the registration fee have been calculated pursuant
to Rule 457(h) as of June 10, 1996.
There are also registered hereunder any additional indeterminate number of
shares as may be issued as a result of the antidilution provisions of the 1996
Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated
herein by reference:
(a) The Company's latest annual report filed pursuant to Section 13(a)
of the Exchange Act.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report
referred to in (a) above.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and 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 herein
by reference and to be a part hereof from the date of filing of such documents.
Any statement contained in the Prospectus or in a document
incorporated, or deemed to be incorporated, by reference herein shall be deemed
to be modified or superseded for purposes of the Prospectus to the extent that
a statement contained herein or in any subsequently filed document which also
is, or is deemed to be, incorporated by reference herein modifies or supersedes
such statement. Except as so modified or superseded, such statement shall not
be deemed to constitute a part of the Prospectus or registration statement.
ITEM 4. DESCRIPTION OF COMMON STOCK
The Company's Common Stock, no par value, is registered under Section
12 of the Exchange Act.
ITEM 5. EXPERTS
The financial statements of the Company contained in the Company's
annual report for the fiscal year ended December 30, 1995, which are
incorporated by reference herein, have been audited by Coopers & Lybrand,
certified public accountants, as stated in their report therein, and have been
so incorporated in reliance upon such report and upon the authority of said
firm as experts in auditing and accounting.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Ohio General Corporation Law ("OGCL"), the registrant's
Amended and Restated Articles of Incorporation provide that a director,
officer, or incorporator of the Registrant shall be indemnified by the
Registrant to the fullest extent permitted by the OGCL.
Indemnification of directors, officers, employees and agents is required
under Section 1701.13 of the OGCL in those cases where the person to be
indemnified has been successful on the merits or otherwise in defense of a
lawsuit. Indemnification is permitted in third party actions where the
indemnified person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation and in
criminal actions where he had no reasonable cause to believe his conduct was
unlawful. Indemnification is also permitted in lawsuits brought by or on
behalf of the corporation if the standards of conduct described above are met,
except that no indemnification is permitted in respect to any matter in which
the person is adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless a court shall determine that
indemnification is fair and reasonable in view of all the circumstances of the
case. In cases where indemnification is permissive, a determination as to
whether the person met the applicable standard of conduct must be made either
by the court, disinterested directors, by independent legal counsel, or by the
shareholders. Such indemnification rights are specifically not deemed to be
exclusive of other rights of indemnification by agreement or otherwise and the
corporation is authorized to advance expenses incurred prior to the final
disposition of a matter upon receipt of an undertaking to repay such amounts on
a determination that indemnification was not permitted in the circumstances of
the case.
The registrant has entered into indemnification contracts with its
directors and executive officers, which (i) confirm the indemnity provided to
them by the Articles of Incorporation and give them assurances that this
indemnity will continue to be provided despite future changes in the Articles
of Incorporation, and (ii) provide that, in addition, the directors and
officers shall be indemnified to the fullest possible extent permitted by law
against all expenses (including attorneys' fees), judgments, fines and
settlement amounts, paid or incurred by them in any action or proceeding,
including any action by or in the right of the registrant, on account of their
service as a director or officer of the registrant or as a director or officer
of any subsidiary of the registrant or as director or officer of any other
company or enterprise when they are serving in such capacities at the request
of the registrant.
No indemnity will be provided under the indemnification contract to any
director or officer for any act or omission which is finally adjudged to have
been undertaken with deliberate intent to cause injury to the registrant or
undertaken with reckless disregard for the best interests of the registrant.
In addition, the indemnification contracts provide that no indemnification will
be permitted if a final court adjudication shall determine that such
indemnification is not lawful, or in respect of any suit in which judgment is
rendered against a director or officer for an accounting of profits made from a
purchase or sale of securities of the registrant in violation of Section 16(b)
of the Securities Exchange Act of 1934 or of any similar statutory law, or on
account of any remuneration paid to a director or officer which is adjudicated
to have been paid in violation of law. Except as so limited, indemnification
of
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directors and officers will be permitted under the indemnification contract to
the fullest extent permitted by Ohio and federal law.
Under OGCL Section 1701.13, a corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation or who, while serving in such capacity, is or was
at the request of the corporation, a director, officer, employee or agent of
another corporation or legal entity or of an employee benefit plan, against
liability asserted against or incurred by such person in any such capacity
whether or not the corporation would have the power to provide indemnity under
OGCL Section 1701.13.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The exhibits filed herewith are set forth on the exhibit index filed as
part of this registration statement.
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, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(e) or 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.
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(c) 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
Securities 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.
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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 Valley View, State of Ohio, on the 22nd day of May,
1996.
D.I.Y. HOME WAREHOUSE, INC.
By: /s/ Fred A. Erb
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Fred A. Erb,
Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
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Dated: May 22 , 1996 /s/ Fred A. Erb
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Fred A. Erb, Chairman of the Board of
Directors
Dated: May 22 , 1996 /s/ Clifford L. Reynolds
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Clifford L. Reynolds, Director, President
and Chief Executive Officer
Dated: May 22 , 1996 /s/ R. Scott Eynon
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R. Scott Eynon, Director and Vice
President-Operations
Dated: May 22 , 1996 /s/ Dennis C. Hoff
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Dennis C. Hoff, Director and Vice
President-General Merchandising Manager
Dated: May 22 , 1996 /s/ John M. Erb
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John M. Erb, Director and Secretary
Dated: May 22 , 1996 /s/ Marilyn A. Eisele
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Marilyn A. Eisele, Vice President-
Administration and Finance and Chief
Financial Officer (also principal accounting
officer)
Dated: May 22 , 1996 /s/ Gregory K. Jones
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Gregory K. Jones, Director
Dated: May 22 , 1996 /s/ John Augustus Shields
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John Augustus Shields, Director
Dated: May 22 , 1996 /s/ Mark A. Timmerman
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Mark A. Timmerman, Director
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D.I.Y. HOME WAREHOUSE, INC.
EXHIBIT INDEX
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Incorporated Herein Page Number
Exhibit by Reference to: Filed Herein
No. Description Herewith
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<S> <C> <C> <C>
5.0 Opinion of Jaffe, Raitt, Heuer & Weiss, X
Professional Corporation, regarding
legality of the Common Stock
24.1 Consent of Jaffe, Raitt, Heuer & Weiss, X See Exhibit
Professional Corporation 5.0
24.2 Consent of Coopers & Lybrand X
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EXHIBIT 5.0
[JAFFE, RAITT, HEUER & WEISS LETTERHEAD]
DAVID D. WARNER
May 22, 1996
D.I.Y. Home Warehouse, Inc.
5811 Canal Road
Valley View, Ohio 44125
Dear Sirs/Mesdames:
We have acted as special counsel to D.I.Y. Home Warehouse, Inc., an Ohio
corporation (the "Company"), in connection with the registration by the Company
under the Securities Act of 1933 on the Form S-8 Registration Statement to
which this opinion is an exhibit (the "Registration Statement") of 25,000
shares of the Company's Common Stock, offered pursuant to the D.I.Y. Home
Warehouse, Inc. 1996 Retainer Stock Plan for Non-Employee Directors (the
"Plan") and such additional number of shares as may be offered pursuant to the
antidilution provisions of the Plan (the "Common Stock").
In rendering the opinion contained in this letter, we have assumed without
investigation that the information supplied to us by the Company is accurate
and complete. Based upon and subject to the foregoing, it is our opinion that,
when the Common Stock is sold, issued and delivered in accordance with the
terms and conditions of the Plan, it will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
JAFFE, RAITT, HEUER & WEISS
Professional Corporation
David D. Warner
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EXHIBIT 24.2
[COOPERS & LYBRAND LETTERHEAD]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-8 of
our report dated February 21, 1996 on our audits of the financial statements
of D.I.Y. Home Warehouse, Inc. as of December 30, 1995 and December 31,
1994 and for each of the three years in the period ended December 30,
1995. We also consent to the reference to our firm under the caption
"Experts."
Coopers & Lybrand L.L.P.
Cleveland, Ohio
May 21, 1996
