AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 30, 2001
REGISTRATION NO. 333-42027
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
POST-EFFECTIVE AMENDMENT NO. 1
___________________
CLAIRE'S STORES, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 59-0940416
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(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NO.)
3 S.W. 129TH AVENUE
PEMBROKE PINES, FLORIDA 33027
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
CLAIRE'S STORES, INC. 1996 STOCK OPTION PLAN
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(FULL TITLE OF THE PLAN)
IRA D. KAPLAN
SENIOR VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND TREASURER
3 S.W. 129TH AVENUE
PEMBROKE PINES, FLORIDA 33027
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(NAME AND ADDRESS OF AGENT FOR SERVICE)
(954) 433-3900
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(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES OF ALL COMMUNICATIONS TO:
Andrew E. Balog, Esq.
Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
(305) 579-0500
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED (1) REGISTERED (1)(2)(3) PRICE PER SHARE (4) OFFERING PRICE(4) REGISTRATION FEE(4)
-------------------- -------------------- ------------------------- -------------------------- -------------------
COMMON STOCK, $.05 6,261,639 SHARES $17.82 $17,820,000 $4,455
PAR VALUE PER SHARE
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(1) The Registrant is the successor issuer to Claire's Stores, Inc. pursuant to
Rule 12g-3(a) of the Securities Exchange Act of 1934 by virtue of its
filing with the Commission of a Current Report on Form 8-K dated June 30,
2000 in connection with Claire's Stores, Inc.'s reincorporation from the
State of Delaware to the State of Florida. Pursuant to Rule 12g-3(a), the
Registrant's shares of common stock, like those of its predecessor, are
deemed to be registered under Section 12(b) of the Securities Exchange Act
of 1934.
(2) Includes 5,261,639 shares previously registered by this Registration
Statement as filed with the Securities and Exchange Commission on December
11, 1997 by the Registrant's predecessor as described above in Note 1. Also
includes an additional 1,000,000 shares reserved for issuance under the
Claire's Stores, Inc. 1996 Stock Option Plan (the 'Plan"), pursuant to an
amendment to the Plan that increased the number of shares available for
grant under the Plan by 1,000,000.
(3) This Registration Statement also covers any additional shares that may
hereafter become issuable as a result of the adjustment provisions of the
Plan.
(4) Estimated solely for the purpose of calculating the registration fee as to
the additional 1,000,000 shares being registered hereunder in accordance
with Rule 457 under the Securities Act of 1933. The Proposed Maximum
Offering Price for such shares is based on the average of the high and low
prices reported on The New York Stock Exchange on April 24, 2001.
1
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in the Claire's Stores, Inc. 1996 Stock
Option Plan, as amended (the "Plan"), as specified by Rule 428(b)(1) promulgated
by the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Claire's Stores, Inc. (the
"Registrant") with the Commission are hereby incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended February 3, 2001; and
(b) The description of the Registrant's Common Stock contained in its
Registration Statement on Form 8-A, including any amendment or
report filed for the purpose of updating such description.
In addition, 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
termination of this offering shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such documents with
the Commission.
Any statements contained in this Registration Statement, or 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 is also 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant, a Florida corporation, is empowered by Section
607.0850 of the Florida Business Corporation Act, subject to the procedures and
limitations stated therein, to indemnify any person who was or is a party to any
proceeding other than any action by, or in the right of, the corporation, by
reason of the fact that he is or was a director, officer, employee, or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise against liability incurred in connection with
such proceeding, including any appeal thereof, if he acted in good faith and in
a manner he reasonably believed to be in, or not opposed to, in the best
interest of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 607.0850 also empowers a Florida corporation to indemnify any
person who was or is a party to any proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, or other
enterprise, against expenses and amounts paid in settlement not exceeding, in
the judgment of the board of directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in connection with
the defense or settlement of such proceeding, including any appeal thereof, if
he acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable unless, and only to the extent
that, the court in which such proceeding was brought, or any other court of
competent jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper. To the extent that a director, officer, employee
or agent of a corporation has been successful on the merits or otherwise in
defense of any proceeding referred to above, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses actually and
reasonably incurred by him in connection therewith.
3
The indemnification and advancement of expenses provided pursuant to
Section 607.0850 are not exclusive, and a corporation may make any other or
further indemnification or advancement of expenses to any of its directors,
officers, employees or agents, under any bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
However, a director, officer, employee or agent is not entitled to
indemnification or advancement of expenses if a judgment or other final
adjudication establish that his actions, or omissions to act, were material to
the cause of action so adjudicated and constitute: (i) a violation of the
criminal law, unless the director, officer, employee or agent had reasonable
cause to believe his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful; (ii) a transaction from which the director, officer,
employee or agent derived an improper personal benefit; (iii) in the case of a
director, a circumstance under which the liability provisions of Section
607.0834 of the Florida Business Corporation Act, relating to a director's
liability for voting in favor of or asserting to an unlawful distribution, are
applicable; or (iv) willful misconduct or a conscious disregard for the best
interests of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder.
The Registrant's By-Laws and Amended and Restated Articles of
Incorporation provide that the Registrant shall indemnify each person who was or
is made a part or is threatened to be made a party to or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that he or she is or was a director, officer
or employee of the Registrant or is or was serving at the request of the
Registrant as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans (an "indemnitee"), whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held harmless by the
Registrant to the fullest extent authorized by the Florida Business Corporation
Act, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Registrant to
provide broader indemnification rights that such law permitted the Registrant to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to an
indemnitee who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the indemnitee's heirs, executors and administrators;
provided, however, that, except as provided otherwise therein with respect to
proceedings to enforce rights to indemnification, the Registrant shall indemnify
any such indemnitee in connection with a proceeding (or part thereof) initiated
by such indemnitee only if such proceeding (or part thereof) was authorized by
the Registrant's board of directors. The right to indemnification conferred
therein shall be a contract right and shall include the right to be paid by the
Registrant the expenses incurred in defending any such proceeding in advance of
its final disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Florida Business Corporation Act requires, an advancement
of expenses incurred by an indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Registrant of an undertaking, by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that such indemnitee is not entitled to be indemnified
for such expenses thereunder or otherwise (hereinafter an "undertaking").
If a claim under the preceding paragraph is not paid in full by the
Registrant within sixty days after a written claim has been received by the
Registrant, except in the case of a claim for an advancement of expenses in
which case the applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Registrant to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit or in a suit
brought by the Registrant to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) any suit by the Registrant to recover an
advancement of expenses pursuant to the terms of an undertaking the Registrant
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met the applicable standard of conduct set forth in the
Florida Business Corporation Act. Neither the failure of the Registrant
(including its board of directors, independent legal counsel, or its
shareholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Florida Business Corporation Act, nor an actual determination by the
Registrant (including its board of directors, independent legal counsel, or its
shareholders) that the indemnitee has not met such applicable standard of
conduct or, in the case of such a suit brought by the indemnitee, be a defense
to such suit. In any suit brought by the indemnitee to enforce a right
thereunder, or by the Registrant to recover an advancement of expenses pursuant
to the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified or to such advancement of expenses thereunder or
otherwise shall be on the Registrant.
4
The Registrant's Amended and Restated Articles of Incorporation and
By-Laws provide that the rights to indemnification and to the advancement of
expenses conferred therein shall not be exclusive of any other right which any
person may have or thereafter acquire under any statute therein.
The Registrant maintains an insurance policy covering directors and
officers under which the insurer agrees to pay, subject to certain exclusions,
for any claim made against the directors and officers of the Registrant for a
wrongful act for which they may become legally obligated to pay or for which the
Registrant is required to indemnify its directors and officers.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought, nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
EXHIBIT
NO. DESCRIPTION
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4.1 Amended and Restated Articles of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.1 to the Registrant's Current Report on Form 8-K
dated June 30, 2000).
4.2 By-Laws of the Registrant (incorporated by reference to Exhibit 3.2 to the
Registrant's Current Report on Form 8-K dated June 30, 2000).
*4.3 Claire's Stores, Inc. 1996 Stock Option Plan
*4.4 First Amendment to the Claire's Stores, Inc. 1996 Stock Option Plan
*5.1 Opinion of Greenberg Traurig, P.A.
*23.1 Consent of KPMG LLP.
*23.2 Consent of Greenberg Traurig, P.A. (included in Exhibit 5.1 hereof).
*24.1 Power of Attorney (included in the signature page hereto).
* Filed with this Registration Statement.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the
"Securities 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;
(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) shall not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
6
(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, each
filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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 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 Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pembroke Pines, State of Florida, on the 27th day of
April, 2001.
CLAIRE'S STORES, INC.
By:/s/ Ira D. Kaplan
--------------------
Ira D. Kaplan
Senior Vice President,
Chief Financial Officer
and Treasurer
POWER OF ATTORNEY
The Registrant and each person whose signature appears below hereby
authorizes Ira D. Kaplan and Harold E. Berritt, and each of them individually
(the "Agent"), with full power of substitution and resubstitution, to file one
or more amendments (including post-effective amendments) to the Registration
Statement which amendments may make such changes in the Registration Statement
as such Agent deems appropriate, and the Registrant and each such person hereby
appoints each such Agent as attorney-in-fact to execute in the name and on
behalf of the Registrant and each such person, individually and in each capacity
stated below, any such amendments to the Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ ROWLAND SCHAEFER Chairman of the Board, April 27, 2001
---------------------- President and Chief
Rowland Schaefer Executive Officer
/s/ IRA D. Kaplan Senior Vice President, April 27, 2001
-------------------- Chief Financial Officer,
Ira D. Kaplan Treasurer and Director
(Principal Financial and
Accounting Officer)
/s/ MARLA L. SCHAEFER Vice Chairman of the Board April 27, 2001
------------------------ of Directors
Marla L. Schaefer
/s/ E. BONNIE SCHAEFER Vice Chairman of the Board April 27, 2001
------------------------- of Directors
E. Bonnie Schaefer
/s/ IRWIN L. KELLNER, Ph.D. Director April 27, 2001
----------------------------
Irwin L. Kellner, Ph.D.
/s/ STEVEN H. TISHMAN Director April 27, 2001
------------------------
Steven H. Tishman
/s/ BRUCE G. MILLER Director April 27, 2001
----------------------
Bruce G. Miller
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4.3 The Claire's Stores, Inc. 1996 Stock Option Plan.
4.4 First Amendment to the Claire's Stores, Inc. 1996 Stock Option Plan.
5.1 Opinion of Greenberg Traurig, P.A.
23.1 Consent of KPMG LLP.
23.2 Consent of Greenberg Traurig, P.A. (included in Exhibit 5.1 hereof).
24.1 Power of Attorney (included in the signature page hereto).
9