-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OscwEjpWv8qCoqo7zATWpw37gv/2yWUMU9ZR+zC+dfxJvss8QPlbM+0NK+aB+jSI Q+fR1SE0ndr/YO/gEMeX7w== 0000950124-02-002176.txt : 20020627 0000950124-02-002176.hdr.sgml : 20020627 20020627122816 ACCESSION NUMBER: 0000950124-02-002176 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020627 EFFECTIVENESS DATE: 20020627 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ENESCO GROUP INC CENTRAL INDEX KEY: 0000093542 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-MISCELLANEOUS NONDURABLE GOODS [5190] IRS NUMBER: 041864170 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-91312 FILM NUMBER: 02688627 BUSINESS ADDRESS: STREET 1: 333 WESTERN AVE CITY: WESTFIELD STATE: MA ZIP: 01085 BUSINESS PHONE: 4135623631 FORMER COMPANY: FORMER CONFORMED NAME: STANHOME INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: STANLEY HOME PRODUCTS INC DATE OF NAME CHANGE: 19820513 S-8 1 c70408sv8.txt FORM S-8 Registration No. 333 - _____ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ENESCO GROUP, INC. (Exact name of Registrant as specified in its charter) Massachusetts 04-1864170 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 225 Windsor Drive, Itasca, Illinois 60143 (Address of Principal Executive Offices) (Zip Code) STOCK OPTION AWARD, DATED AS OF MARCH 28, 2001, BETWEEN ENESCO GROUP, INC. AND DANIEL DALLEMOLLE (Full title of the Plan) M. FRANCES DURDEN, GENERAL COUNSEL ENESCO GROUP, INC. 225 WINDSOR DRIVE ITASCA, ILLINOIS 60143 (Name and address, including zip code of agent for service) (630) 875-5300 (Telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Title of Securities to be Amount to be Offering Price per Aggregate Offering Amount of Registered Registered Share (1) Price(1) Registration Fee ---------- ---------- --------- -------- ---------------- Common Stock, Par Value, 300,000 (2)(3) $ 6.20 $1,860,000 $171.12 $.125 Per Share
(1) Pursuant to Rule 457(h)(1) under the Securities Act of 1933, as amended, the proposed maximum offering price and the amount of registration fee have been computed based on $6.20, which is the exercise price for the shares under the option. (2) This Registration Statement shall also cover: (i) any additional shares of common stock which become issuable under any of the plans referred to herein by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of common stock, and (ii) rights to purchase shares of common stock, $0.125 par value, which are attached to and trade with the Common Stock; no additional consideration will be received by the Registrant for the rights registered hereby. (3) Represents the 300,000 shares reserved for issuance pursuant to the Stock Option Award of Daniel DalleMolle dated March 28, 2001. PART I ITEM 1. PLAN INFORMATION Not required to be filed with this Registration Statement ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION Not required to be filed with this Registration Statement PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE Enesco Group, Inc. (the "Registrant") hereby incorporates by reference into this Registration Statement: (a) Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2001, filed pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (b) Registrant's quarterly report on Form 10-Q for the fiscal quarter ended March 31, 2002, filed pursuant to the Exchange Act. (c) The description of the Registrant's Common Stock contained in its: (a) Registration Statement on Form 10, dated May 28, 1965, as amended on Form 8 Amendment No. 1, dated December 9, 1965, and Form 8 Amendment No. 2, dated September 5, 1986; (b) Registration Statements on Form 8-A, dated September 8, 1986 and October 30, 1987, both as amended on Form 8 Amendment No. 1, dated May 6, 1988; (c) Registration Statement on Form 8-A, dated September 9, 1998; and (d) any other registration statement relating to the Registrant's Common Stock under Section 12 of the Exchange Act, including any amendments or reports filed for the purpose of updating the description of such class of securities; and (d) The description of the Registrant's Rights contained in its (a) Registration Statement on Form 8-A, dated September 9, 1998; and (b) any other registration statement relating to the Registrant's Rights under Section 12 of the Exchange Act, including any amendments or reports filed for the purpose of updating the description of such class of securities. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into 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 by reference herein 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 other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. On June 15, 2002, Arthur Andersen LLP ("Arthur Andersen"), the Registrant's independent public accounting firm for the year ended December 31, 2001, was convicted on federal obstruction of justice charges arising from the U.S. Government's investigation of Enron Corp. On June 4, 2002, the Registrant engaged KPMG LLP as its independent public accountants for the fiscal year 2002. The Registrant has not been able to obtain, after reasonable efforts, the written consent of Arthur Andersen to its naming in this Registration Statement as having certified the Registrant's consolidated financial statements for the year ended December 31, 2001, as required by Section 7 of the Securities Act. Accordingly, investors will not be able to assert claims against Arthur Andersen under Section 11 of the Securities Act for any untrue statement of a material fact contained in the Registrant's consolidated financial statements for the year ended December 31, 2001 or any omissions to state a material fact required to be stated therein. ITEM 4. DESCRIPTION OF SECURITIES. See Item 3(c) and (d) above. ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 13 of Chapter 156B of the Massachusetts General Laws permits corporations organized under the laws of the Commonwealth of Massachusetts (the "Commonwealth") to eliminate or limit personal liability of their directors to the corporation or its stockholders for monetary damages resulting from any breach of fiduciary duty as a director, except under certain circumstances. Article 6E of the Registrant's Restated Articles of Organization, as amended, eliminates the personal liability of directors of the Registrant to the Registrant or its stockholders for monetary damages to the full extent permitted under Section 13 of Chapter 156B of the Massachusetts General Laws. Section 67 of Chapter 156B of the Massachusetts General Laws permits corporations organized under the laws of the Commonwealth to indemnify directors, officers, employees and agents under certain circumstances. Article V of the By-Laws of the Registrant provides for the indemnification of any director, officer and specified key employees of the Registrant against all expenses, as defined therein, actually or reasonably incurred by any of them in connection with any claim asserted against him or her, or in connection with any action, suit or proceeding, civil or criminal, in which any of them may be involved as a party, by reason of his or her having been such a director, officer or specified key employee, provided he or she has acted in good faith in the reasonable belief that his or her action was in the best interest of the Registrant. The Registrant has director and officer liability insurance covering certain expenditures which might arise in connection with such indemnification. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The exhibits filed as a part of this Report or incorporated herein by reference are as follows: Exhibit No. Exhibit - -------- ------- 4.1 Stock Option Award dated March 28, 2001 between Registrant and Daniel DalleMolle.* 4.2 Enesco Group, Inc. 1996 Stock Option Plan, as amended and restated through January 20, 1999 (Incorporated by reference to Exhibit 10(d) to Form 10-K filed for the period ended December 31, 1998). 5.1 Opinion of M. Frances Durden, General Counsel, regarding the legality of the securities being registered under this Registration Statement.* 23.1 The Registrant was unable to obtain the consent of Arthur Andersen LLP. See information above in Part II, Item 3 under the heading "Incorporation of Documents by Reference". - ------------------ * Filed Herewith. ITEM 9. UNDERTAKINGS. A. (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 (the "Act"); (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 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (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) above do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, 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 Exchange Act that are incorporated by reference in this post-effective amendment. (2) That, for the purpose of determining any liability under the Act, 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 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 this 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 Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suite or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, 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 policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the 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, on the 27th day of June, 2002. ENESCO GROUP, INC. (Registrant) By: /s/ Daniel DalleMolle --------------------- Daniel DalleMolle President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below on the 27th day of June, 2002 by the following persons on behalf of the Registrant and in the capacities indicated. Signature Title - --------- ----- /s/ Daniel DalleMolle Director, President and - --------------------- Chief Executive Officer Daniel DalleMolle /s/ John F. Cauley Director - --------------------- John F. Cauley /s/ Anne-Lee Verville Chairman of the Board, Director - --------------------- Anne-Lee Verville /s/ Judith R. Haberkorn Director - ----------------------- Judith R. Haberkorn /s/ Donna Brooks Lucas Director - ----------------------- Donna Brooks Lucas /s/ Eugene Freedman Director - ----------------------- Eugene Freedman /s/ George R. Ditomassi Director - ----------------------- George R. Ditomassi /s/ Thane A. Pressman Director - ----------------------- Thane A. Pressman /s/ Donald L. Krause Director - ----------------------- Donald L. Krause INDEX TO EXHIBITS Exhibit No. Exhibit - ------- ------- 4.1 Stock Option Award dated March 28, 2001 between Registrant and Daniel DalleMolle.* 4.2 Enesco Group, Inc. 1996 Stock Option Plan, as amended and restated through January 20, 1999 (Incorporated by reference to Exhibit 10(d) to Form 10-K filed for the period ended December 31, 1998). 5.1 Opinion of M. Frances Durden, General Counsel, regarding the legality of the securities being registered under this Registration Statement.* 23.1 The Registrant was unable to obtain the consent of Arthur Andersen LLP. See information in Part II, Item 3 under the heading "Incorporation of Documents by Reference". - ------------------ * Filed Herewith. EX-4.1 3 c70408exv4w1.txt STOCK OPTION AWARD - DANIEL DALLEMOLLE Exhibit 4.1 ENESCO GROUP, INC. Itasca, Illinois CERTIFICATE OF GRANT OF NON-QUALIFIED STOCK OPTION Date of Grant: March 28, 2001 Total Number of Shares: 300,000 Price per Share: $6.20 To: Daniel DalleMolle Dear Dan: This letter is a certificate formally granting you a Non-qualified Stock Option with respect to the number of shares indicated above. The Stock Option exercise price will be $6.20 per share. Your option will become exercisable only after six months from the date of grant and subject to the Company achieving certain stock fair market value performance criteria or, without conditions, after the eighth anniversary of the date of grant. The Stock Option granted under this certificate is not to be treated as an incentive stock option under the Internal Revenue Code of 1986. The terms of this Stock Option are as if it were granted under the Company's 1996 Stock Option Plan (the "Plan"). The Company agrees to file a Registration Statement on Form S-8 with the Securities and Exchange Commission with respect to shares of common stock underlying the Stock Option. You may exercise your right to purchase all or any of the shares included under this grant on or after the date on which those shares become exercisable but, in any event, not later than March 27, 2011. In order to exercise, you must forward a completed Stock Option Exercise Order together with payment in full to the Treasurer, Enesco Group, Inc., 225 Windsor Drive, Itasca, Illinois 60143, for the shares which you elect to purchase. You can elect to make your purchase in cash, Enesco Group, Inc. stock, or a combination of cash and Enesco Group, Inc. stock. Please be advised that the Company will accept shares acquired under a Stock Option program of the Company in payment for new option shares only if the shares tendered by the optionee have been held by such optionee for a period of at least six months and are free and clear of all liens and encumbrances. No purchase can be made of fewer than ten shares at any one time. Any exercise of the option will be effective on the date when payment is received in the office of the Treasurer, except that no payment will be accepted which is received after March 27, 2011. You will receive a stock certificate representing shares for which you have made payment. Under existing law, the difference between the price paid for any shares purchased under this option and their market value on the date or dates the option is exercised will be subject to any applicable taxes, including the withholding of federal income, social security and medicare taxes. In addition, there may be applicable state or local taxes and withholding requirements. The payment of all such taxes is of course your personal responsibility. However, the Company is also responsible for meeting the withholding requirements and in order to do so will retain the required number of shares purchased under the option unless you elect to deposit with it an amount equal to any required withholding. This option is subject to the termination under certain circumstances. Please review these provisions carefully in connection with any termination of employment. This option is exercisable during your lifetime only by you and is not transferable by you, except in the event of your death and then only under certain circumstances. Any attempted transfer or other disposition of the option by you will be void and will constitute valid grounds for its cancellation by the Company. This stock option grant is made as if it were under the Plan, as it may be amended from time to time. A copy of the Plan, as amended, is enclosed together with a Prospectus dated September 6, 1996. Please read these carefully. This option will be of no force or effect and no rights will exist under it after March 27, 2011. We would appreciate your signing the enclosed acknowledgment confirming your receipt of this Certificate of Grant and returning it to me. ENESCO GROUP, INC. /s/ M. Frances Durden M. Frances Durden Secretary Enclosures EX-5.1 4 c70408exv5w1.txt OPINION OF M. FRANCES DURDEN Exhibit 5.1 June 27, 2002 Enesco Group, Inc. 225 Windsor Drive Itasca, IL 60143 RE: Enesco Group, Inc. Registration Statement on Form S-8 Ladies and Gentlemen: I am the Vice President, Secretary and General Counsel of Enesco Group, Inc., a Massachusetts corporation (the "Company"), and am issuing this opinion in connection with the Registration Statement on Form S-8 being filed by the Company with the Securities and Exchange Commission (the "Commission") on or about June 27, 2002 (the "Registration Statement") for the purpose of registering with the Commission under the Securities Act of 1933, as amended (the "1933 Act"), 300,000 shares (the "Shares") of common stock of the Company, par value $.125 per share, issuable upon the exercise of options granted under the stock option award, dated March 28, 2001, to Daniel DalleMolle by the Company (the "Plan"). In this connection, I have examined and am familiar with originals or copies, certified or otherwise identified to my satisfaction, of (i) the Registration Statement, (ii) the Plan, (iii) the Restated Articles of Organization and the By-laws of the Company, as amended, each as currently in effect, (iv) certain resolutions adopted by the Board of Directors of the Company relating to the Plan and certain other related matters, and (v) a certificate of the Secretary of the Commonwealth of Massachusetts dated May 30, 2002, certifying that the Company has legal existence and is in good standing in the Commonwealth of Massachusetts; and such other documents, certificates and records as I have deemed necessary or appropriate as a basis for the opinions set forth herein. In such examination, I have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified, conformed or photostatic copies and the authenticity of the originals of such copies. As to any facts material to the opinions expressed herein which I have not independently established or verified, I have relied upon statements and representations of other officers and representatives of the Company and others regarding, among other things, the compliance with all provisions of the Plan. I am admitted to the Bar of the State of Illinois and do not purport to be an expert on any law other than the substantive law of the State of Illinois. Page Two Enesco Group, Inc. June 27, 2002 Based upon and subject to the foregoing, I am of the opinion that: (1) the Company is duly incorporated and validly existing under the laws of the Commonwealth of Massachusetts; and (2) the Shares have been duly authorized for issuance and, when the Shares have been paid for and certificates therefor have been issued and delivered upon exercise of options in accordance with the terms of the Plan as contemplated by the Registration Statement, the Shares will be validly issued, fully paid and nonassessable. I do not find it necessary for the purposes of this opinion letter to cover, and accordingly I express no opinion as to the application of, the securities or blue sky laws of the various states to the sale of the Shares. I assume no obligation to update or supplement this opinion letter to reflect any facts or circumstances which may hereafter come to my attention with respect to the opinions expressed above, including any change in applicable law. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the 1933 Act or the rules and regulations of the Commission promulgated thereunder. Very truly yours, /s/ M. Frances Durden M. Frances Durden General Counsel -----END PRIVACY-ENHANCED MESSAGE-----