As filed with the Securities and Exchange Commission on September 29, 2003
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
CHARMING SHOPPES, INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 23-1721355
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
450 Winks Lane
Bensalem, Pennsylvania 19020
(Address of principal executive offices) (Zip Code)
CHARMING SHOPPES, INC.
2003 NON-EMPLOYEE DIRECTORS COMPENSATION PLAN
1993 EMPLOYEES' STOCK INCENTIVE PLAN
(Full title of the plans)
COLIN D. STERN, ESQ.
Charming Shoppes, Inc.
450 Winks Lane
Bensalem, Pennsylvania 19020
(Name and address of agent for service)
(215) 245-9100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered(1) registered(1) offering price aggregate offering registration
per share (2) price(2) fee(3)
--------------------------------------------------------------------------------------------------
Common Stock 2,500,000 shares $ 5.73 $ 14,325,000.00 $ 1,158.89
$.10 par value
(1) Includes Stock Purchase Rights attached to Common Stock, as provided under
the Rights Agreement, dated as of April 26, 1999, between Charming Shoppes,
Inc. and American Stock Transfer & Trust Company, as Rights Agent. Pursuant
to Rule 416(a), the number of shares being registered (and attached rights)
shall be adjusted to include any additional shares which may become
issuable as a result of stock splits, stock dividends or similar
transactions in accordance with the anti-dilution provision of the plans
listed above.
(2) Determined solely for the purpose of computing the registration fee
pursuant to Rules 457(c) and (h)(1) based on the average of the high and
low prices of the Registrant's common stock reported in the Nadsaq National
Market on September 26, 2003.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended, as follows: $80.90 per $1 million of proposed maximum aggregate
offering price.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Omitted as permitted by Form S-8 and Rule 428.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Charming Shoppes, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission"), are incorporated
by reference in this Registration Statement:
1. Annual Report on Form 10-K, for the Fiscal Year Ended February 1, 2003;
2. Quarterly Report on Form 10-Q, for the Quarter Ended May 2, 2003;
3. Quarterly Report on Form 10-Q, for the Quarter Ended August 2, 2003;
4. Current Report on Form 8-K, dated March 18, 2003; and
5. The description of the Company's Common Stock contained in the Registration
Statement on Form S-3 filed by the Company with the Commission on July 1, 1996
(File No. 333-4137), the description of the Stock Purchase Rights attached to
Common Stock contained in the Company's Amended Form 8A/12B filed with the
Commission on April 28, 1999 (File No. 000-07258), and any description of the
Common Stock, and rights relating thereto, contained in any other of the
Registrant's registration statements relating to the Common Stock or such rights
filed with the Commission under the Securities Exchange Act of 1934, including
any amendment or report filed for the purpose of updating the description.
All reports and other documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
after the date of this Registration Statement, but prior to the filing of a
post-
effective amendment to this Registration Statement which indicates that all
securities offered by this Registration Statement have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement. Each document
incorporated by reference into this Registration Statement shall be deemed to be
a part of this Registration Statement, from the date of the filing of such
document with the Commission until the information contained therein is
superseded or updated by any subsequently filed document which is incorporated
by reference into the Registration Statement. Any Form 8-K "furnished" to, but
not "filed" with, the Commission after the date of this Registration Statement
shall not be deemed to be incorporated by reference into this Registration
Statement.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
that is also 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 hereof.
The consolidated financial statements of the Registrant included in the
Registrant's Annual Report on Form 10-K for the fiscal year ended February 1,
2003 have been audited by Ernst & Young LLP, independent auditors, as set forth
in their report thereon included therein and incorporated herein by reference.
Such financial statements are, and audited financial statements to be included
in subsequently filed documents will be, incorporated herein in reliance upon
the reports of Ernst & Young LLP pertaining to such financial statements (to the
extent covered by consents filed with the Securities and Exchange Commission)
given upon the authority of such firm as experts in accounting and auditing.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered under this Registration Statement is
registered under Section 12(g) of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the shares of Common Stock offered hereby has been passed
upon for the Registrant by Colin D. Stern, Esq., Executive Vice President,
General Counsel and Secretary of the Registrant. As of September 19, 2003, Mr.
Stern owned 40,134 shares of the Company's Common Stock and options to purchase
671,500 additional shares.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 1741 and 1742 of the Pennsylvania Business Corporation Law of
1988, as amended (the "PBCL"), provide that a business corporation may indemnify
directors and officers against liabilities and expenses they may incur as such
provided that the particular person acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal proceeding, had no reasonable
cause to believe his or her conduct was unlawful. In general, the power to
indemnify under these sections does not exist in the case of actions against a
director or officer by or in the right of the corporation if the person
otherwise entitled to indemnification shall have been adjudged to be liable to
the corporation unless it is judicially determined that, despite the
adjudication of liability but in view of all the circumstances of the case, the
person is fairly and reasonably entitled to indemnification for specified
expenses. Section 1743 of the PBCL provides that the corporation is required to
indemnify directors and officers against expenses they may incur in defending
actions against them in such capacities if they are successful on the merits or
otherwise in the defense of such actions.
Section 1713 of the PBCL permits the shareholders to adopt a bylaw
provision relieving a director (but not an officer) of personal liability for
monetary damages except where (i) the director has breached the duties of his or
her office under Chapter 17, Subchapter B of the PBCL ("Subchapter B"), and (ii)
such conduct constitutes self-dealing, willful misconduct or recklessness. The
statute provides that a director may not be relieved of responsibility under a
criminal statute or of liability for the payment of taxes pursuant to any
federal, state or local law.
Section 1746 of the PBCL grants a corporation broad authority to indemnify
its directors and officers for liabilities and expenses incurred in such
capacity, except in circumstances where the act or failure to act giving rise to
the claim for indemnification is determined by a court to have constituted
willful misconduct or recklessness.
Section 1747 of the PBCL permits a corporation to purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
representative of another corporation or other enterprise, against any liability
asserted against such person and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the corporation would
have the power to indemnify the person against such liability under
Subchapter B.
Section 7.01 of the Bylaws provides that the Company will indemnify any
person who is a party to or is threatened to be made a party to any threatened,
pending or completed proceeding (including a proceeding by or in the right of
the Registrant) by reason of the fact that such person is or was a director,
officer or employee of the Registrant or, at the request of the Registrant was
serving as a director, officer, partner, fiduciary or trustee of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, to the fullest extent permitted by law, including expenses
(including attorneys' fees), damages, punitive damages, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by such
person unless such act or failure to act is finally determined by a court to
have constituted willful misconduct or recklessness. Section 7.02 of the Bylaws
provides for the advancement of expenses to an indemnified party upon receipt of
an undertaking by the party to repay those amounts if it is ultimately
determined that the indemnified party is not entitled to indemnification.
Section 7.04 of the Bylaws authorizes the Registrant to use any mechanism
or arrangement, as determined by the Board of Directors, to further effect,
satisfy or secure its indemnification obligations, including purchasing and
maintaining insurance, obtaining a letter of credit, creating a reserve, trust,
escrow or other fund or account, entering into indemnification agreements or
granting security interests.
Section 7.05 of the Bylaws provides that the rights of indemnification
under the Bylaws will be deemed a contract between the Company and each person
entitled to indemnification. Section 7.06 of the Bylaws states that the
indemnification authorized by the Bylaws will not be exclusive of any other
rights to which persons seeking indemnification or advancement of expenses may
be entitled.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference as
part of this Registration Statement:
Exhibit No. Description
----------- -----------
4 Amended and Restated Rights Agreement, dated as of February 1,
2001, between Charming Shoppes, Inc. and American Stock Transfer &
Trust Company, as Rights Agent, incorporated by reference to Form
10-K of the Registrant for the fiscal year ended February 3, 2001
(Exhibit 4.1).
5 Opinion of Colin D. Stern, Esq. as to the legality of the shares
being registered.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Colin D. Stern, Esq. (included in Exhibit 5).
24 Power of Attorney (set forth on the signature page of 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;
(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 with or furnished to the Commission 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.
(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 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 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 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 Bensalem, Commonwealth of Pennsylvania, this 17th day
of September, 2003.
CHARMING SHOPPES, INC.
By: /s/ Dorrit J. Bern
----------------------------------
Dorrit J. Bern
Chairman of the Board, President
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and
officers of Charming Shoppes, Inc. hereby constitutes and appoints Dorrit J.
Bern and Colin D. Stern, and each of them, his or her true and lawful
attorney-in-fact and agent, for and in his or her name, place and stead, in any
and all capacities, to sign this Registration Statement on Form S-8 under the
Securities Act of 1933, including post-effective amendments and other related
documents, and to file the same with the Securities and Exchange Commission
under said Act, hereby granting power and authority to do and perform any and
all acts and things requisite and necessary to be done in and about the
premises, as fully as to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and the foregoing Power of Attorney have been signed by
the following persons in the capacities and on the date(s) indicated:
Signature Capacity Date
--------- -------- ----
/s/Dorrit J. Bern
--------------------------- Chairman of the Board, President September 17, 2003
Dorrit J. Bern and Chief Executive Officer
/s/ William O. Albertini
--------------------------- Director September 17, 2003
William O. Albertini
--------------------------- Director
Joseph L. Castle II
/s/Charles T. Hopkins
--------------------------- Director September 17, 2003
Charles T. Hopkins
/s/Katherine Hudson
--------------------------- Director September 17, 2003
Katherine Hudson
/s/Pamela S. Lewis
--------------------------- Director September 17, 2003
Pamela S. Lewis
/s/ Kenneth S. Olshan
--------------------------- Director September 17, 2003
Kenneth S. Olshan
/s/ Alan Rosskamm
--------------------------- Director September 17, 2003
Alan Rosskamm
/s/Eric M. Specter
--------------------------- Executive Vice President, Chief September 17, 2003
Eric M. Specter Financial Officer
/s/John J. Sullivan
--------------------------- Vice President and Corporate September 17, 2003
John J. Sullivan Controller (Chief Accounting
Officer)
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
4 Amended and Restated Rights Agreement, dated as of February 1,
2001, between Charming Shoppes, Inc. and American Stock Transfer &
Trust Company, as Rights Agent, incorporated by reference to Form
10-K of the Registrant for the fiscal year ended February 3, 2001
(Exhibit 4.1).
5 Opinion of Colin D. Stern, Esq. as to the legality of the shares
being registered.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Colin D. Stern, Esq. (included in Exhibit 5).
24 Power of Attorney (set forth on the signature page of this
Registration Statement).