Registration No. 333-
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As filed with the Securities and Exchange Commission on November 1, 2001
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HANDLEMAN COMPANY
(Exact name of registrant as specified in its charter)
MICHIGAN 38-1242806
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
500 KIRTS BOULEVARD 48084-4142
TROY, MICHIGAN (Zip Code)
(Address of Principal Executive Offices)
HANDLEMAN COMPANY
2001 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
STEPHEN STROME, CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
HANDLEMAN COMPANY
500 KIRTS BOULEVARD
TROY, MI 48084-4142
(Name and address of agent for service)
(248) 362-4400
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered per share offering price fee
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Common Stock (1) 1,600,000 (2) $11.98 (3) $19,168,000.00 $4,792.00
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(1) $0.01 par value per share.
(2) This Registration Statement shall also cover any additional shares of
Registrant's Common Stock which become subject to outstanding stock options
granted under the plan by reason of any stock dividend, stock split,
recapitalization or similar transaction effected without receipt of
consideration which results in an increase in the number of outstanding
shares of Registrant's Common Stock.
(3) Calculated pursuant to Rule 457(c) and (h)(1) under the Securities Act,
solely for the purpose of computing the registration fee, and based on the
average of the high and low prices of the Registrant's Common Stock as
traded on the New York Stock Exchange on October 30, 2001.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference in this
Registration Statement:
1. Annual Report of Handleman Company ("Registrant" or the "Company")
on Form 10-K for the fiscal year ended April 28, 2001, filed with the
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
2. Quarterly Report of the Registrant on Form 10-Q for the fiscal
quarter ended July 28, 2001, filed with the Commission pursuant to the
Exchange Act.
3. Proxy Statement of Registrant on Schedule 14A dated August 3, 2001,
as filed with the Commission pursuant to Section 14(a) of the Exchange
Act.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein by reference modifies or supersedes such prior 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.
ITEM 4. DESCRIPTION OF SECURITIES.
DESCRIPTION OF CAPITAL STOCK
GENERAL
The Company's authorized capital stock consists of 60,000,000 shares of
common stock, $0.01 par value per share ("Common Stock"), and 1,000,000 shares
of preferred stock, $1.00 par value per share ("Preferred Stock"). The following
description of the Company's capital stock does not purport to be complete or to
give full effect to Michigan statutory or common law and is, in all respects,
qualified by reference to the applicable provisions of the Michigan Business
Corporation Act ("MBCA") and the Company's Restated Articles of Incorporation
and Bylaws. As of September 5, 2001 there were 26,817,966 shares of Common Stock
issued and outstanding.
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COMMON STOCK
Subject to the prior rights of the holders of any Preferred Stock, the
holders of outstanding shares of Common Stock will be entitled to receive
dividends out of assets legally available therefor at such time and in such
amounts as the board of directors may from time to time determine. Upon
liquidation, dissolution or winding up of the Company, the holders of Common
Stock will be entitled to receive pro rata the Company's assets that are legally
available for distribution, after payment of all debts and other liabilities and
subject to the prior rights of any holders of Preferred Stock then outstanding.
Each outstanding share of the Company's Common Stock will be entitled to one
vote on all matters submitted to a vote of shareholders.
PREFERRED STOCK
The Company's board of directors may, without further action by the
shareholders, from time to time, direct the issuance of shares of Preferred
Stock in series and may, at the time of issuance, determine the rights,
preferences and limitations of each series. Satisfaction of any dividend
preferences of outstanding shares of Preferred Stock would reduce the amount of
funds available for the payment of dividends on shares of Common Stock. Holders
of shares of Preferred Stock may be entitled to receive a preference payment in
the event of any liquidation, dissolution or winding-up of the Company before
any payment is made to the holders of shares of Common Stock. Under certain
circumstances, the issuance of, or the ability to issue, shares of Preferred
Stock may render more difficult or tend to discourage a merger, tender offer or
proxy contest, the assumption of control by a holder of a large block of our
securities or the removal of incumbent management. Upon the affirmative vote of
a majority of the total number of directors then in office, the board of
directors, without shareholder approval, may issue shares of Preferred Stock
with voting and conversion rights which could adversely affect the holders of
shares of Common Stock. No shares of Preferred Stock are issued and outstanding.
ANTI-TAKEOVER PROVISION OF THE ARTICLES AND BYLAWS
Certain provisions of our Restated Articles of Incorporation and Bylaws
could have the effect of making it more difficult for a third party to acquire,
or of discouraging a third party from attempting to acquire, control of the
Company through either a tender offer or a proxy contest for the election of
directors. Such provisions could also limit the price that certain investors
might be willing to pay in the future for shares of the Company's Common Stock.
The Restated Articles and the Bylaws contain provisions which (i) classify the
board of directors into three classes as nearly equal in number as possible, and
provide that each director will serve for three years with directors in only one
class being elected each year, (ii) permit the board of directors to issue up to
1,000,000 shares of Preferred Stock in one or more series and to fix the number
of shares, and the voting powers and all other rights and preferences of any
such series, without any further vote or action by the shareholders, (iii)
require the approval by at least 80% of the outstanding shares of our voting
stock of any plan for the merger, consolidation, sale or other transfer of all
or substantially all of the Company's assets, the issuance or transfer of the
Company's voting stock for the assets or securities of another person if, in all
such cases, such person is, or within the preceding twelve months has been, the
beneficial owner of five percent or more of the outstanding shares of the
Company's Common Stock and (iv) provide that directors may be removed only with
cause, by a vote of the holders of a majority of the shares entitled to vote at
an election of directors. The approval by at least 80% of the outstanding shares
of our voting stock is required to amend or repeal the provisions in the
Restated Articles for the classified board of directors and for the super
majority approval for extraordinary transactions. In addition, the Restated
Bylaws provide that special meetings of shareholders may be called by the
chairman of the board of directors, the board of directors or a majority of
shareholders entitled to vote at the meeting. All of the above-described
provisions may have the effect of delaying or preventing a change of control,
which could adversely affect the market price of the Company's Common Stock.
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LISTING
The Company's Common Stock is traded on the New York Stock Exchange
under the trading symbol "HDL."
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Alan E. Schwartz, partner of Honigman Miller Schwartz and Cohn LLP,
which firm is delivering an opinion of counsel regarding the validity of the
securities being offered in this Registration Statement, served as a director of
the Company until September 10, 2001.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The MBCA permits Michigan corporations to limit the personal liability
of directors and officers for breaches of their fiduciary duties. The Restated
Articles of Incorporation of the Registrant so limit the liability of directors.
The Registrant's Bylaws also provide for indemnification of directors and
officers.
The Restated Articles of Incorporation limit director liability for
money damages for breaches of fiduciary duty as a director, except for liability
for (i) the amount of a financial benefit received by a director to which he or
she is not entitled, (ii) intentional infliction of harm on the corporation or
shareholders, (iii) a violation of Section 551(1) of the MBCA, or (iv) an
intentional criminal act. These provisions, however, do not affect liability
under the Securities Act of 1933, as amended.
The MBCA authorizes a corporation under specified circumstances to
indemnify its directors and officers (including reimbursement for expenses
incurred) for any action taken or any failure to take any action as a director
or officer, except for liability for specified acts. The provisions of the
Registrant's Bylaws relating to indemnification of directors and officers limit
director, officer and employee liability to the fullest extent permitted by
Michigan Law. The provisions of the MBCA are broad enough to permit
indemnification with respect to liabilities arising under the Securities Act of
1933, as amended or the Michigan Uniform Securities Act.
In addition, the Registrant has obtained directors' and officers'
liability insurance. The policy provides for $50,000,000 in coverage, including
liabilities under the Securities Act of 1933, as amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
4.1 Restated Articles of Incorporation dated June 30, 1989,
incorporated by reference to Exhibit 3 filed with the
Registrant's Annual Report on Form 10-K, dated May 1, 1993.
4.2 Bylaws adopted March 7, 1990, as amended June 16, 1993 and
December 6, 1995 and further amended January 12, 2001,
incorporated by reference to Exhibit A filed with the
Registrant's Annual Report on Form 10-K dated July 24, 2001.
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5.1 Opinion of Honigman Miller Schwartz and Cohn LLP.
23.1 Consent of Honigman Miller Schwartz and Cohn LLP (included in
the opinion filed as Exhibit 5.1 to this Registration
Statement).
99.1 Handleman Company 2001 Stock Option and Incentive Plan,
incorporated by reference to Appendix A to the Proxy Statement
on Form DEF 14A (file no. 001-07923), filed with the
Commission on August 3, 2001.
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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered
(if the total dollar value of securities offered
would not exceed that which was registered) and any
deviation from the low or high end of the estimated
maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) To include any material information
with respect to the plan of distribution not
previously disclosed in the Registration Statement or
any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the Registration Statement is on
Form S-3 or Form S-8, and 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 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.
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(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 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 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 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 City of Troy, State of Michigan, on October 31, 2001.
HANDLEMAN COMPANY
By: /s/ Stephen Strome
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Stephen Strome, Chairman of the Board
and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and directors of HANDLEMAN COMPANY, a Michigan corporation (the "Company"),
hereby constitutes and appoints Stephen Strome or Thomas C. Braum, Jr., and each
of them, the true and lawful attorneys-in-fact and agents of the undersigned,
each with the power of substitution for him in any and all capacities, with full
power and authority in said attorneys-in-fact and agents and in any one or more
of them, to sign, execute and affix his seal thereto and file the proposed
registration statement on Form S-8 to be filed by the Company under the
Securities Act of 1933, as amended, which registration statement relates to the
registration and issuance of the Company's Common Stock, pursuant to the
Handleman Company 2001 Stock Option and Incentive Plan and any of the documents
relating to such registration statement, any and all amendments to such
registration statement, including any amendment thereto changing the amount of
securities for which registration is being sought, and any post-effective
amendment, with all exhibits and any and all documents required to be filed with
respect thereto with any regulatory authority; granting unto said attorneys, and
each of them, 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 in order to
effectuate the same as fully to all intents and purposes as he might or could do
if personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each 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 date indicated.
Signature Title Date
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/s/ Peter J. Cline President, Chief Operating October 31, 2001
---------------------------------------- Officer and Director
Peter J. Cline
/s/ Thomas C. Braum, Jr. Senior Vice President - Finance October 31, 2001
---------------------------------------- and Chief Financial Officer
Thomas C. Braum, Jr.
/s/ Donald M. Genotti Vice President and October 31, 2001
---------------------------------------- Controller (Chief Accounting Officer)
Donald M. Genotti
/s/ John M. Barth Director October 31, 2001
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John M. Barth
/s/ Elizabeth A. Chappell Director October 31, 2001
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Elizabeth A. Chappell
/s/ Richard H. Cummings Director October 31, 2001
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Richard H. Cummings
/s/ David Handleman Director October 31, 2001
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David Handleman
/s/ Sandra E. Peterson Director October 31, 2001
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Sandra E. Peterson
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
4.1 Restated Articles of Incorporation dated June 30, 1989, incorporated by
reference to Exhibit 3 filed with the Registrant's Annual Report on
Form 10-K, dated May 1, 1993.
4.2 Bylaws adopted March 7, 1990, as amended June 16, 1993 and December 6,
1995 and further amended January 12, 2001, incorporated by reference to
Exhibit A filed with the Registrant's Annual Report on Form 10-K dated
July 24, 2001.
5.1 Opinion of Honigman Miller Schwartz and Cohn LLP.
23.1 Consent of Honigman Miller Schwartz and Cohn LLP (included in the
opinion filed as Exhibit 5.1 to this Registration Statement).
99.1 Handleman Company 2001 Stock Option and Incentive Plan incorporated by
reference to Appendix A of the Proxy Statement on Form DEF 14A (file
no. 001-07923), filed with the Commission on August 3, 2001.
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