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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 13, 1999
REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DIPLOMAT DIRECT MARKETING CORPORATION
-------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
--------
(State or Other Jurisdiction of Incorporation or Organization)
13-3727399
----------
(I.R.S. Employer Identification No.)
414 Alfred Avenue, Teaneck, New Jersey 07666
--------------------------------------------
(Address, including Zip Code, of Principal Executive Offices)
1992 Stock Option Plan
1996 Stock Option Plan
1998 Stock Option Plan
----------------------
(Full Titles of the Plans)
Warren H. Golden
Chief Executive Officer
Diplomat Direct Marketing Corporation
414 Alfred Avenue
Teaneck, New Jersey 07666
(201) 833-4450
[name, address and telephone number of agent for service]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box [x]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities Amount Being Proposed Proposed Amount of
To Be Registered Registered Maximum Maximum Registration Fee
Offering Price Per Aggregate
Security(1) Offering Price
<S> <C> <C> <C> <C>
Common Stock,
$.0001 par value
per share 2,900,000 $.796875 $2,310,938 $642.44
</TABLE>
(1) The price is estimated in accordance with Rule 457(h)(1) under the
Securities Act of 1933, as amended, solely for the purpose of calculating the
registration fee. The average of the last bid and asked price as reported on
the Nasdaq Stock Market on July 9, 1999 (within 5 business days prior to the
filing of this Registration Statement) was $.796875.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the Note to Part I of the Form S-8, the
information required by Part I is not filed with the Securities and Exchange
Commission.
The Registrant will provide without charge to each person to
whom a copy of a Section 10(a) Prospectus hereunder is delivered, upon the oral
or written request of such person, a copy of any document incorporated in this
Registration Statement by reference, except exhibits to such documents.
Requests for such information should be directed to Diplomat Direct Marketing
Corporation, 414 Alfred Avenue, Teaneck, New Jersey 07666.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Diplomat Direct Marketing
Corpoation (the "Company") with the Commission are incorporated herein by
reference:
(1) The Company's Annual Report on Form 10-K for the Year Ended
September 30, 1998.
(2) The Company's Quarterly Report on Form 10-Q for the Quarter Ended
December 31, 1998.
(3) The Company's Quarterly Report on Form 10-Q for the Quarter Ended
March 31, 1999
In addition to the foregoing, 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, prior to the filing of a post-effective
amendment indicating that all of the securities offered hereunder have been
sold or deregistering all securities then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated by
reference in this Registration Statement shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document that is also
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement. All
information appearing in this Registration Statement is qualified in its
entirety by the information and financial statements (including notes thereto)
appearing in the documents incorporated herein by reference, except to the
extent set forth in the immediately preceding statement.
The Company hereby undertakes to provide without charge to
each person to whom a copy of this Prospectus is delivered, upon the oral or
written request of such person, a copy of any document incorporated in this
Registration Statement by reference, except exhibits to such documents.
Requests for such information should be directed
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to Diplomat Direct Marketing Corporation, 414 Alfred Avenue, Teaneck, New
Jersey 07666, (201)833-4450.
Item 4. DESCRIPTION OF SECURITIES
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS
The validity of the shares being registered will be passed
upon by Gersten, Savage & Kaplowitz, LLP. Certain members of Gersten, Savage &
Kaplowitz, LLP own approximately 1,200,000 shares of common stock and options
to purchase approximately 300,000 shares of common stock.
Item 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The by-laws of the Company provide that the Company shall
indemnify, to the fullest extent permitted by Delaware law, directors and
officers (and former officers and directors) of the Company. Such
indemnification includes all costs and expenses and charges reasonably incurred
in connection with the defense of any civil, criminal or administrative action
or proceeding to which such person is made a party by reason of being or having
been an officer or director of the Company if such person was substantially
successful on the merits in his or her defense of the action and he or she
acted honestly and in good faith with a view to the best interests of the
Company, and if a criminal or administrative action that is enforced by a
monetary penalty, such person had reasonable grounds to believe his or her
conduct was lawful.
Insofar as indemnification for liabilities arising under the
Securities Act 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 Securities Act 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 controlling precedent, submit to a court of appropriate
jurisdiction the question of 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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
5.1 Opinion and Consent of Gersten, Savage & Kaplowitz, LLP
10.1 1992 Stock Option Plan (1)
10.1 1996 Stock Option Plan (2)
10.2 1998 Stock Option Plan (3)
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Feldman, Sherb Horowitz & Co., P.C. (formerly
Feldman Sherb Ehrlich & Co., P.C.)
4
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(1)Incorporated by reference to Diplomat Corporation Registration Statement
No 33-66910-NY.
(2) Incorporated by reference to Diplomat Corporation Annual Report on Form
10-KSB for the year ended September 30, 1996.
(3) Incorporated by reference to Diplomat Corporate Proxy Statement in Schedule
14A filed April 29, 1998.
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:
(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 (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;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change such information in the registration
statement,
provided, however, that paragraphs 9(a)(1)(i) and (a)(1)(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 by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 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 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(a) or section 1J(d) or the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 1J(d) or 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 arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to any charter provision, by-law, contract,
arrangement, statute, 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
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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 Act and will
be governed by the final adjudication of such issue.
6
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Teaneck, State of New
Jersey, the 8th day of July, 1999.
DIPLOMAT DIRECT MARKETING CORPORATION
By: /s/ WARREN H. GOLDEN
---------------------------------------
Warren H. Golden
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and has appointed Warren H. Golden, President and
Chief Executive Officer, his or her true and lawful attorney-in-fact and agent,
with full power of substitution and re-substitution, for him or her and in his
or her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same and all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting
said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent, or her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ WARREN H. GOLDEN President, Chief Executive Officer and Director July 8, 1999
- ----------------------------------
Warren H. Golden
/s/ ROBERT M. RUBIN Chairman of the Board July 8, 1999
- ----------------------------------
Robert M. Rubin
/s/ STEPHANIE SOBEL Executive Vice President and Director July 8, 1999
- ----------------------------------
Stephanie Sobel
/s/ STUART LEIDERMAN Divisional President of Ecology Kids and Director July 8, 1999
- ----------------------------------
Stuart Leiderman
/s/ MARK J. MCSWEENEY Chief Financial Officer July 8, 1999
- ----------------------------------
Mark J. McSweeney
/s/ JULIA ARYEH Chief Strategic Officer, Secretary and Director July 8, 1999
- ----------------------------------
Julia Aryeh
Director
- ----------------------------------
Howard B. Katz
/s/ DAVID ABEL Director July 8, 1999
- ----------------------------------
David Abel
</TABLE>
<PAGE>
EXHIBIT INDEX
5.1 Opinion and Consent of Gersten, Savage & Kaplowitz, LLP
10.1 1992 Stock Option Plan (1)
10.1 1996 Stock Option Plan (2)
10.2 1998 Stock Option Plan (3)
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Feldman, Sherb Horowitz & Co., P.C. (formerly
Feldman, Sherb Ehrlich & Co., P.C.)
(1)Incorporated by reference to Diplomat Corporation Registration Statement
No 33-66910-NY.
(2) Incorporated by reference to Diplomat Corporation Annual Report on Form
10-KSB for the year ended September 30, 1996.
(3) Incorporated by reference to Diplomat Corporate Proxy Statement in Schedule
14A filed April 29, 1998.
<PAGE>
Gersten, Savage & Kaplowitz
101 East 52nd Street
New York, New York 10022
July 8, 1999
Diplomat Direct Marketing Corporation
414 Alfred Avenue
Teaneck, New Jersey 07666
Gentlemen:
You have requested our opinion, as counsel for Diplomat Direct
Marketing Corporation, in 414 Alfred Avenue, Teaneck, New Jersey 07666 (the
"Company"), in connection with the registration statement on Form S-8 (the
"Registration Statement"), under the Securities Act of 1933 (the "Act"), being
filed by the Company with the Securities and Exchange Commission.
The Registration Statement relates to an offering of 2,900,000 shares
of common stock, $0.0001 par value per share ("Common Stock") underlying the
options (the "Selling Stockholder Shares"), issued pursuant to the plans
described in the Registration Statement.
We have examined such records and documents and made such examinations
of law as we have deemed relevant in connection with this opinion. It is our
opinion that the Selling Stockholder Shares, upon receipt by the Company of the
exercise price therefore, are fully paid, validly issued and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In so doing, we do not admit that we are in the
category of persons whose consent is required under Section 7 of the Act of the
rules and regulations of the Securities and Exchange Commission promulgated
thereunder.
Very truly yours,
/s/ Gersten, Savage & Kaplowitz, LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Diplomat Direct Marketing Corporation
Teaneck, New Jersey
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of the Registration Statement on Form S-8 of our report
dated January 30, 1999 relating to the financial statements of Diplomat Direct
Marketing Corporation appearing in the Company's Annual Report on Form 10-K for
the year ended September 30, 1998.
/s/ BDO Seidman, LLP
New York, New York
July 9, 1999
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the use in this registration statement on Form S-8 of our
report dated January 13, 1998, except for Note 3(a), as to which the date is
February 19, 1998, and Note 3(b) which is as of January 30, 1999 relating to the
financial statements of Diplomat Direct Marketing Corporation and Subsidiaries
as of September 30, 1997 and for the year then ended and for the nine months
ended September 30, 1996 and of our report dated January 30, 1999 relating to
the statements of operations and cash flows of Lew Magram Ltd. for the six
months ended June 30, 1997.
/s/ Feldman Sherb Horowitz & Co., P.C.
Feldman Sherb Horowitz & Co., P.C.
Certified Public Accountants
(Formerly Feldman Sherb Ehrlich & Co., P.C.)
New York, New York
July 9, 1999
