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Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DM Management Company
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(Exact name of issuer as specified in its charter)
Delaware 04-2973769
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
25 Recreation Park Drive, Hingham, Massachusetts 02043
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(Address of principal executive offices) (Zip Code)
DM MANAGEMENT COMPANY
1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Gordon R. Cooke
President, Chief Executive Officer and Chairman of the Board of Directors
DM Management Company
25 Recreation Park Drive
Hingham, Massachusetts 02043
(781) 740-2718
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(Name and address, including zip code, and
telephone number, including area code, of agent for service)
WITH A COPY TO:
Peter M. Rosenblum, Esquire
David R. Pierson, Esquire
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
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CALCULATION OF REGISTRATION FEE
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Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Per Share Price Fee
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Common Stock 100,000 $28.625(1) $2,862,500(1) $844.44(1)
(par value $0.01) shares
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(1) Estimated pursuant to Rule 457 (c) and (h) based on the average of
the high and low prices of the Common Stock as reported on the National
Association of Securities Dealers Automated Quotation National Market System on
May 27, 1998.
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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 Securities and Exchange
Commission (the "Commission") are incorporated in this Registration Statement by
reference:
(a) the Company's Annual Report on Form 10-K for the year ended
December 27, 1997; and
(b) the description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on September 27,
1993 under Section 12 of the Securities Exchange Act of 1934, including any
amendment or report filed for the purpose of updating such description.
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 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 in this Registration Statement and to
be 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.
The validity of the securities registered hereby is being passed upon
for the Company by Foley, Hoag & Eliot LLP, Boston, Massachusetts. David R.
Pierson, a partner at Foley, Hoag & Eliot LLP, is Secretary of the Company.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article SIXTH of the Company's Certificate of Incorporation provides
that the Company shall indemnify each person who at any time is, or shall have
been, a director or officer of the Company, and is threatened to be or is made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is, or was, a director or officer of the Company, or served at the
request of the Company as a director, officer, employee, trustee, or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement incurred in connection with any such action, suit or proceeding to
the maximum extent permitted by the Delaware General Corporation Law. Article
SIXTH further provides that the foregoing right of indemnification is not
exclusive of any other rights of indemnification. Section 10 of the Company's
By-Laws provides that the Company shall indemnify its officers and directors to
the full extent the Company is permitted to do so by the Delaware General
Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law gives a
Delaware corporation the power to adopt a charter provision eliminating or
limiting the personal liability of directors to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as directors,
provided that such provision may not eliminate or limit the liability of
directors for (i) any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) any
payment of a dividend or approval of a stock purchase or redemption that is
unlawful under Section 174 of the Delaware Corporation Law or (iv) any
transaction from which the director derived an improper personal benefit.
Article EIGHTH of the Company's Certificate of Incorporation provides that to
the maximum extent permitted by the Delaware General Corporation Law, no
director of the Company shall be personally liable to the Company or to any of
its stockholders for monetary damages arising out of such director's breach of
fiduciary duty as a director of the Company. No amendment to or repeal of the
provisions of Article EIGHTH shall apply to or have any effect on the liability
or the alleged liability of any director of the Company with respect to any act
or failure to act of such director occurring prior to such amendment or repeal.
A principal effect of such Article EIGHTH is to limit or eliminate the potential
liability of the Company's directors for monetary damages arising from breaches
of their duty of care, unless the breach involves one of the four exceptions
described in (i) through (iv) above. Article EIGHTH does not prevent
stockholders from obtaining injunctive or other
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equitable relief against directors, nor does it shield directors from liability
under federal or state securities laws.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have 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 any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Section 145 of the Delaware General Corporation Law also affords a
Delaware corporation the power to obtain insurance on behalf of its directors
and officers against liabilities incurred by them in such capacities. The
Company has procured a directors' and officers' liability and company
reimbursement liability insurance policy that (a) insures directors and officers
of the Company against losses (above a deductible amount) arising from certain
claims made against them by reason of certain acts done or attempted by such
directors or officers and (b) insures the Company against losses (above a
deductible amount) arising from any such claims, but only if the Company is
required or permitted to indemnify such directors or officers for such losses
under statutory or common law or under provisions of the Company's Certificate
of Incorporation or By-Laws.
Under the Underwriting Agreement among the Company and certain
underwriters (the "Underwriters") represented by Wessels, Arnold & Henderson,
L.L.C. and Montgomery Securities, filed as Exhibit 1.1 to the Company's
Registration Statement on Form S-2, Registration No. 333-35267, the Underwriters
are obligated, under certain circumstances, to indemnify directors and officers
of the Company against certain liabilities, including liabilities under the
Securities Act. In addition, Section 10(b) of the Ninth Amended and Restated
Registration Rights Agreement among the Company and certain of its stockholders,
filed as Exhibit 10.4 to the Company's Registration Statement on Form S-1,
Registration No. 33-67512, requires such stockholders under certain
circumstances to indemnify the directors and officers of the Company against
certain liabilities, including liabilities under the Securities Act.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation of the Company (included as
Exhibit 4.2 to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 25, 1993, File No. 0-22480, and incorporated
herein by reference).
4.2 By-Laws of the Company, as amended (included as Exhibit 3.2 to the
Company's Current Report on Form 8-K dated January 14, 1997, File No.
0-22480, and incorporated herein by reference).
4.3 1998 Employee Stock Purchase Plan.
5.1 Opinion of Counsel.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (contained on the signature page).
ITEM 9. UNDERTAKINGS.
1. 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
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 herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
2. The undersigned Registrant hereby undertakes:
(a) 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
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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 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 2(a)(1)(i) and 2(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 herein.
(b) 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.
(c) 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.
3. 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 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
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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.
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 Town of Hingham, Massachusetts, on this 28th of May, 1998.
DM MANAGEMENT COMPANY
By: /s/ Gordon R. Cooke
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Gordon R. Cooke
President, Chief Executive
Officer and Chairman of
the Board of Directors
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Gordon R. Cooke and Olga L. Conley, and
each of them, his true and lawful attorneys-in-fact and agents with full power
of substitution, for him and in his 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, with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing which
they, or either of them, may deem necessary or advisable to be done in
connection with this Registration Statement, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or any substitute or
substitutes for either or both of them, may lawfully do or cause to be done by
virtue hereof.
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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
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/s/ Gordon R. Cooke President, Chief May 28, 1998
- ---------------------- Executive Officer
Gordon R. Cooke and Chairman of the
Board of Directors
(Principal Executive
Officer)
/s/ Olga L. Conley Vice President of May 28, 1998
- ---------------------- Finance, Chief
Olga L. Conley Financial Officer
and Treasurer
(Principal Financial
and Accounting
Officer)
/s/ William E. Engbers Director May 28, 1998
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William E. Engbers
/s/ Walter J. Levison Director May 28, 1998
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Walter J. Levison
/s/ Thomas J. Litle Director May 28, 1998
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Thomas J. Litle
/s/ Ruth M. Owades Director May 28, 1998
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Ruth M. Owades
/s/ Samuel L. Shanaman Director May 28, 1998
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Samuel L. Shanaman
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EXHIBIT INDEX
Exhibit
No. Description
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4.1 Restated Certificate of Incorporation of the Company (included
as Exhibit 4.2 to the Company's Quarterly Report on Form 10-Q
for the quarter ended September 25, 1993, File No. 0-22480,
and incorporated herein by reference).
4.2 By-Laws of the Company, as amended (included as Exhibit 3.2 to
the Company's Current Report on Form 8-K dated January 14,
1997, File No. 0-22480, and incorporated herein by reference).
4.3 1998 Employee Stock Purchase Plan.
5.1 Opinion of Counsel
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page)
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DM MANAGEMENT COMPANY Exhibit 4.3
1998 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE.
The DM Management Company Employee Stock Purchase Plan (the
"Plan") is intended to provide a method whereby employees of DM Management
Company (the "Company") will have an opportunity to acquire an ownership
interest (or increase an existing ownership interest) in the Company through the
purchase of shares of the Common Stock of the Company. It is the intention of
the Company that the Plan qualify as an "employee stock purchase plan" under
Section 423 of the Internal Revenue Code of 1986, as amended (the "Code"). The
provisions of the Plan shall, accordingly, be construed so as to extend and
limit participation in a manner consistent with the requirements of that section
of the Code.
2. DEFINITIONS.
(a) "Compensation" means, for the purpose of any Offering
pursuant to this Plan, base pay in effect as of the Offering Commencement Date
(as hereinafter defined). Compensation shall not include any deferred
compensation other than contributions by an individual through a salary
reduction agreement to a cash or deferred plan pursuant to Section 401(k) of the
Code or to a cafeteria plan pursuant to Section 125 of the Code.
(b) "Board" means the Board of Directors of the Company.
(c) "Committee" means the Compensation Committee of the Board.
(d) "Common Stock" means the common stock, $.01 par value per
share, of the Company.
(e) "Company" shall also include any Parent or Subsidiary of
DM Management Company designated by the Board, unless the context otherwise
requires.
(f) "Employee" means any person who is customarily employed at
least 20 hours per week and more than five months in a calendar year by the
Company.
(g) "Parent" shall mean any present or future corporation
which is or would constitute a "parent corporation" as that term is defined in
Section 424 of the Code.
(h) "Subsidiary" shall mean any present or future corporation
which is or would constitute a "subsidiary corporation" as that term is defined
in Section 424 of the Code.
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3. ELIGIBILITY.
(a) Participation in the Plan is completely voluntary.
Participation in any one or more of the offerings under the Plan shall neither
limit, nor require, participation in any other offering.
(b) Each employee shall be eligible to participate in the
Plan on the first Offering Commencement Date, as hereafter defined, following
the commencement of employment with the Company. Notwithstanding the foregoing,
no employee shall be granted an option under the Plan:
(i) if, immediately after the grant, such
employee would own stock, and/or hold outstanding options to purchase stock,
possessing 5% or more of the total combined voting power or value of all classes
of stock of the Company or any Parent or Subsidiary; for purposes of this
Paragraph the rules of Section 424(d) of the Code shall apply in determining
stock ownership of any employee; or
(ii) which permits his rights to purchase stock
under all Section 423 employee stock purchase plans of the Company and any
Parent or Subsidiary to exceed $25,000 of the fair market value of the stock
(determined at the time such option is granted) for each calendar year in which
such option is outstanding; for purposes of this Paragraph, the rules of Section
423(b)(8) of the Code shall apply.
4. OFFERING DATES.
The right to purchase stock hereunder shall be made available
by a series of one-year offerings (the "Offering" or "Offerings") to employees
eligible in accordance with Paragraph 3 hereof. The applicable date of
commencement ("Offering Commencement Date") and date of termination ("Offering
Termination Date") for each Offering shall be the first and the last business
day of each calendar year, respectively, unless the Committee, in its
discretion, determines otherwise. Participation in any one or more of the
Offerings under the Plan shall neither limit, nor require, participation in any
other Offering.
5. PARTICIPATION.
Any eligible employee may become a participant by completing a
payroll deduction authorization form provided by the Company and filing it with
the office of the Company's Treasurer 20 days prior to each applicable Offering
Commencement Date, as determined by the Committee pursuant to Paragraph 4, or
such other period as may be permitted by the Company in its sole discretion and
which shall be applicable in a uniform and nondiscriminatory manner.
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6. PAYROLL DEDUCTIONS.
(a) At the time a participant files his authorization for
a payroll deduction, he shall elect to have deductions made from his pay on each
payday during any Offering in which he is a participant at a specified
percentage of his Compensation as determined on the applicable Offering
Commencement Date; said percentage shall be in increments of one percent up to a
maximum percentage of ten percent.
(b) Payroll deductions for a participant shall commence
on the applicable Offering Commencement Date when his authorization for a
payroll deduction becomes effective and shall end on the Offering Termination
Date of the Offering to which such authorization is applicable unless sooner
terminated by the participant as provided in Paragraph 10.
(c) All payroll deductions made for a participant shall
be credited to his account under the Plan. A participant may not make any
separate cash payment into such account.
(d) A participant may withdraw from the Plan at any time
during the applicable Offering period.
7. GRANTING OF OPTION.
(a) On the Offering Commencement Date of each Offering, a
participating employee shall be deemed to have been granted an option to
purchase a maximum number of shares of the Common Stock equal to an amount
determined as follows: 85% of the market value per share of the Common Stock on
the applicable Offering Commencement Date shall be divided into an amount equal
to the percentage of the employee's Compensation which he has elected to have
withheld (but no more than 10%) multiplied by the employee's Compensation over
the Offering period. Such market value per share of the Common Stock shall be
determined as provided in clause (i) of Paragraph 7(b).
(b) The option price of the Common Stock purchased with
payroll deductions made during each such Offering for a participant therein
shall be the lower of:
(i) 85% of the closing price per share on the
Offering Commencement Date as reported by a nationally recognized stock
exchange, or, if the Common Stock is not listed on such an exchange, as reported
by the National Association of Securities Dealers Automated Quotation System
("Nasdaq") National Market System or, if the Common Stock is not listed on the
Nasdaq National Market System, 85% of the mean of the bid and asked prices per
share on the Offering Commencement Date or, if the Common Stock is not traded
over the counter, 85% of the fair market value on the Offering Commencement Date
as determined by the Committee; and
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(ii) 85% of the closing price per share on the
Offering Termination Date as reported by a nationally recognized stock exchange,
or, if the Common Stock is not listed on such an exchange, as reported by the
Nasdaq National Market System or, if the Common Stock is not listed on the
Nasdaq National Market System, 85% of the mean of the bid and asked prices per
share on the Offering Termination Date or, if the Common Stock is not traded
over the counter, 85% of the fair market value on the Offering Termination Date
as determined by the Committee.
8. EXERCISE OF OPTION.
(a) Unless a participant gives written notice to the
Treasurer of the Company as hereinafter provided, his option for the purchase of
Common Stock with payroll deductions made during any Offering will be deemed to
have been exercised automatically on the Offering Termination Date applicable to
such Offering for the purchase of the number of full shares of Common Stock
which the accumulated payroll deductions in his account at that time will
purchase at the applicable option price (but not in excess of the number of
shares for which options have been granted the employee pursuant to Paragraph
7(a)), and any excess in his account at that time, other than as described in
Paragraph 8(b), will be automatically returned to the participant.
(b) Fractional shares will not be issued under the Plan
and any accumulated payroll deductions which would have been used to purchase
fractional shares shall be automatically carried forward to the next Offering
unless the participant elects, by written notice to the Treasurer of the
Company, to have the excess cash returned to him.
9. DELIVERY.
The Company will deliver to each participant (as promptly as
possible after the appropriate Offering Termination Date), a certificate
representing the Common Stock purchased upon exercise of his option.
10. WITHDRAWAL AND TERMINATION.
(a) Prior to the Offering Termination Date for an
Offering, any participant may withdraw the payroll deductions credited to his
account under the Plan for such Offering by giving written notice to the
Treasurer of the Company. All of the participant's payroll deductions credited
to such account will be paid to him promptly after receipt of notice of
withdrawal, without interest, and no future payroll deductions will be made from
his pay during such Offering. The Company will treat any attempt to borrow by a
participant on the security of accumulated payroll deductions as an election to
withdraw such deductions.
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(b) A participant's election not to participate in, or
withdrawal from, any Offering will not have any effect upon his eligibility to
participate in any succeeding Offering or in any similar plan which may
hereafter be adopted by the Company.
(c) Upon termination of the participant's employment for
any reason, including retirement but excluding death, the payroll deductions
credited to his account will be returned to him, or, in the case of his death,
to the person or persons entitled thereto under Paragraph 14.
(d) Upon termination of the participant's employment
because of death, his beneficiary (as defined in Paragraph 14) shall have the
right to elect, by written notice given to the Company's Treasurer prior to the
expiration of a period of 90 days commencing with the date of the death of the
participant, either:
(i) to withdraw all of the payroll deductions
credited to the participant's account under the Plan; or
(ii) to exercise the participant's option for the
purchase of stock on the Offering Termination Date next following the date of
the participant's death for the purchase of the number of full shares which the
accumulated payroll deductions in the participant's account at the date of the
participant's death will purchase at the applicable option price (subject to the
limitation contained in Paragraph 7(a)), and any excess in such account will be
returned to said beneficiary. In the event that no such written notice of
election shall be duly received by the office of the Company's Treasurer, the
beneficiary shall automatically be deemed to have elected to withdraw the
payroll deductions credited to the participant's account at the date of the
participant's death and the same will be paid promptly to said beneficiary.
11. INTEREST.
No interest will be paid or allowed on any money paid into the
Plan or credited to the account of any participating employee.
12. STOCK.
(a) The maximum number of shares of Common Stock
available for issuance and purchase by employees under the Plan, subject to
adjustment upon changes in capitalization of the Company as provided in
Paragraph 17, shall be 100,000 shares of Common Stock, par value $.01 per share,
of the Company. If the total number of shares for which options are exercised on
any Offering Termination Date in accordance with Paragraph 8 exceeds the maximum
number of shares for the applicable Offering, the Company shall make a pro rata
allocation of the shares available for delivery and distribution in an equitable
manner, and the
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balances of payroll deductions credited to the account of each participant under
the Plan shall be automatically returned to the participant.
(b) The participant will have no interest in stock
covered by his option until such option has been exercised.
13. ADMINISTRATION.
The Plan shall be administered by the Committee. The
interpretation and construction of any provision of the Plan and adoption of
rules and regulations for administering the Plan shall be made by the Committee.
Determinations made by the Committee with respect to any matter or provision
contained in the Plan shall be final, conclusive and binding upon the Company
and upon all participants, their heirs or legal representatives. Any rule or
regulation adopted by the Committee shall remain in full force and effect unless
and until altered, amended, or repealed by the Committee.
14. DESIGNATION OF BENEFICIARY.
A participant shall file with the Treasurer of the Company a
written designation of a beneficiary who is to receive any Common Stock and/or
cash under the Plan. Such designation of beneficiary may be changed by the
participant at any time by written notice. Upon the death of a participant and
upon receipt by the Company of proof of the identity and existence at the
participant's death of a beneficiary validly designated by him under the Plan,
the Company shall deliver such Common Stock and/or cash to such beneficiary. In
the event of the death of a participant and in the absence of a beneficiary
validly designated under the Plan who is living at the time of such
participant's death, the Company shall deliver such Common Stock and/or cash to
the executor or administrator of the estate of the participant. No beneficiary
shall prior to the death of the participant by whom he has been designated,
acquire any interest in the Common Stock and/or cash credited to the participant
under the Plan.
15. TRANSFERABILITY.
Neither payroll deductions credited to a participant's account
nor any rights with regard to the exercise of an option or to receive Common
Stock under the Plan may be assigned, transferred, pledged, or otherwise
disposed of in any way by the participant other than by will or the laws of
descent and distribution. Any such attempted assignment, transfer, pledge, or
other disposition shall be without effect, except that the Company may treat
such act as an election to withdraw funds in accordance with Paragraph 8(b).
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16. USE OF FUNDS.
All payroll deductions received or held by the Company under
this Plan may be used by the Company for any corporate purpose, and the Company
shall not be obligated to segregate such payroll deductions.
17. EFFECT OF CHANGES OF COMMON STOCK.
If the Company shall subdivide or reclassify the Common Stock
which has been or may be optioned under this Plan, or shall declare thereon any
dividend payable in shares of such Common Stock, or shall take any other action
of a similar nature affecting such Common Stock, then the number and class of
shares of Common Stock which may thereafter be optioned (in the aggregate and to
any participant) shall be adjusted accordingly and in the case of each option
outstanding at the time of any such action, the number and class of shares which
may thereafter be purchased pursuant to such option and the option price per
share shall be adjusted to such extent as may be determined by the Committee,
with the approval of independent public accountants and counsel, to be necessary
to preserve the rights of the holder of such option.
18. AMENDMENT OR TERMINATION.
The Board may at any time terminate or amend the Plan. No such
termination shall affect options previously granted, nor may an amendment make
any change in any option theretofore granted which would adversely affect the
rights of any participant holding options under the Plan.
19. NOTICES.
All notices or other communications by a participant to the
Company under or in connection with the Plan shall be deemed to have been duly
given when received by the Treasurer of the Company.
20. MERGER OR CONSOLIDATION.
If the Company shall at any time merge into or consolidate
with another corporation, the holder of each option then outstanding will
thereafter be entitled to receive at the next Offering Termination Date upon the
exercise of such option, in lieu of the number of shares of Common Stock as to
which such option shall be exercisable, the number and class of shares of stock
or other securities to which such holder would have been entitled pursuant to
the terms of the agreement of merger or consolidation if, immediately prior to
such merger or consolidation, such holder had been the holder of record of a
number of shares of Common Stock equal to the number of shares for which such
option was exercisable. In accordance with this Paragraph and Paragraph 17, the
Committee shall determine the
7
<PAGE> 8
kind and amount of such securities or property which such holder of an option
shall be entitled to receive. A sale of all or substantially all of the assets
of the Company shall be deemed a merger or consolidation for the foregoing
purposes.
21. APPROVAL OF STOCKHOLDERS.
The Plan is subject to the approval of the stockholders of the
Company at their next annual meeting or at any special meeting of the
stockholders for which one of the purposes shall be to act upon the Plan. If the
Plan is not approved by the stockholders of the Company, all payroll deductions
credited to a participant's account under the Plan shall be automatically
returned to the participant.
22. GOVERNMENTAL AND OTHER REGULATIONS.
The Plan, and the grant and exercise of the rights to purchase
shares hereunder, and the Company's obligation to sell and deliver shares upon
the exercise of rights to purchase shares, shall be subject to all applicable
federal, state and foreign laws, rules and regulations, and to such approvals by
any regulatory or governmental agency as may, in the opinion of counsel for the
Company, be required. The Plan shall be governed by, and construed and enforced
in accordance with, the provisions of Sections 421, 423 and 424 of the Code and
the substantive laws of the Commonwealth of Massachusetts. In the event of any
inconsistency between such provisions of the Code and any such laws, said
provisions of the Code shall govern to the extent necessary to preserve
favorable federal income tax treatment afforded employee stock purchase plans
under Section 423 of the Code.
* * *
<PAGE> 1
FOLEY, HOAG & ELIOT LLP Exhibit 5.1
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109-2170
<TABLE>
<S> <C>
TELEPHONE 617-832-1000 1615 L STREET, N.W., SUITE 850
FACSIMILE 617-832-7000 WASHINGTON, D.C. 20036
http://www.fhe.com TEL: 202-775-0600
FAX: 202-857-0140
</TABLE>
May 28, 1998
DM Management Company
25 Recreation Park Drive
Hingham, Massachusetts 02043
Ladies and Gentlemen:
We are familiar with the Registration Statement on Form S-8 (the "S-8
Registration Statement") filed today by DM Management Company, a Delaware
corporation (the "Company"), with the Securities and Exchange Commission under
the Securities Act of 1933, as amended. The S-8 Registration Statement relates
to the proposed offering by the Company of 100,000 shares (the "Shares") of its
Common Stock, $0.01 par value per share ("Common Stock"), issuable pursuant to
the Company's 1998 Employee Stock Purchase Plan, as amended (the "1998 Stock
Purchase Plan").
In arriving at the opinion expressed below, we have examined and relied
on the following documents:
(1) the Restated Certificate of Incorporation and By-Laws of
the Company, each as amended as of the date hereof;
(2) the records of all meetings and consents of the Board of
Directors and stockholders of the Company relating to the 1998 Stock
Purchase Plan and the Shares; and
(3) the 1998 Stock Purchase Plan.
In addition, we have examined and relied on the originals or copies certified or
otherwise identified to our satisfaction of all such corporate records of the
Company and such other instruments and other certificates of public officials,
officers and representatives of the Company and such other persons, and we have
made such investigations of law, as we have deemed appropriate as a basis for
the opinion expressed below.
<PAGE> 2
DM Management Company
May 28, 1998
Page 2
Based upon the foregoing, it is our opinion that:
1. The Company has corporate power adequate for the issuance of the
Shares in accordance with the S-8 Registration Statement. The Company has taken
all necessary corporate action required to authorize the issuance and sale of
the Shares. When certificates for the Shares have been duly executed and
countersigned, and delivered against due receipt of the exercise price for the
Shares as described in the options relating thereto and the 1998 Stock Purchase
Plan, the Shares will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
S-8 Registration Statement.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By /s/ David R. Pierson
-------------------------------
A Partner
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement of DM Management Company and subsidiary, on Form S-8 of our report
dated January 30, 1998, on our audits of the consolidated balance sheets of DM
Management Company and subsidiary as of December 27, 1997 and December 28, 1996,
and the related consolidated statements of operations, change in stockholders'
equity and cash flows for the fiscal year ended December 27, 1997, the six
months ended December 28, 1996 and each of the two fiscal years in the period
ended June 29, 1996, which report is included in its Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
---------------------------------
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
May 28, 1998
