SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement under the Securities Act of 1933
CALLOWAY'S NURSERY, INC.
(Exact name of issuer as specified in its charter)
Texas 75-2092519
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
4200 Airport Freeway, Suite 200 76117-6200
Fort Worth, Texas (ZIP Code)
(Address of Principal Executive Offices)
CALLOWAY'S NURSERY, INC.
1998 STOCK OPTION PLAN
1999 STOCK OPTION PLAN
2000 STOCK OPTION PLAN
2001 STOCK OPTION PLAN
(Full title of the plans)
JAMES C. ESTILL
President and CEO
Calloway's Nursery, Inc.
4200 Airport Freeway, Suite 200
Fort Worth, Texas 76117-6200
(Name and address of agent for service)
(817) 222-1122
(Telephone number, including area code, of agent for service)
Copy to:
Sam Rosen
Shannon, Gracey, Ratliff & Miller, L.L.P.
777 Main Street, Suite 3800
Fort Worth, Texas 76102
(817) 877-8108
APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES
PURSUANT TO THE PLAN:
From time to time after
this Registration Statement becomes effective.
CALCULATION OF REGISTRATION FEE
Title of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered(3) Per Share Offering Price Registration Fee
---------------- ------------------- ---------------- -------------- ----------------
Common Stock 424,000 shares(1) $1.09 (1) $ 462,160 $ 42.52
$.01 par value 756,000 shares(2) $1.08 (2) $ 816,480 $ 75.12
--------- ---------- --------
1,180,000 shares $1,278,640 $ 117.64
========= ========== ========
(1) 276,000 shares underlying stock options outstanding under the 1998 Stock
Option Plan and 148,000 shares underlying stock options outstanding under the
1999 Stock Option Plan, valued at their exercise price pursuant to Rule 457(h).
(2) 138,000, 302,000 and 316,000 shares available for issuance pursuant to stock
options granted in the future under the 1999 Stock Option Plan, the 2000 Stock
Option Plan, and the 2001 Stock Option Plan, respectively, valued at the last
sale price reported on July 9, 2002.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also registers an indeterminate number of shares of
Common Stock to cover any adjustments in the number of shares issuable pursuant
to the plans named above, or options or other awards granted thereunder, as a
result of anti-dilution provisions contained therein.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Note: The document(s) containing the information specified in Item 1 of
Part I of Form S-8 will be sent or given to employees as specified by Rule
428(b)(1). As specified in Form S-8, such documents are not filed with the
Commission either as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Note: The Registrant will provide a written statement to participants
advising them of the availability without charge, upon written or oral request,
of the documents incorporated by reference in Item 3 of Part II of this
registration statement, and stating that these documents are incorporated by
reference in the Section 10(a) prospectus. The statement also will indicate the
availability without charge, upon written or oral request, of other documents
required to be delivered to employees pursuant to Rule 428(b). The statement
will include the address (giving title or department) and telephone number to
which the request is to be directed.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") by the Registrant, are incorporated
herein by reference and made a part hereof: (i) Annual Report on Form 10-K for
the year ended September 30, 2001; and (ii) quarterly reports on Form 10-Q for
Registrant's fiscal quarters ending December 31, 2001 and March 31, 2002; and
(iii) the description of the Registrant's Common Stock contained in Item 1 of
its registration on Form 8-A of such class of securities under section 12(g) of
the Securities Exchange Act of 1934 and any amendment or report filed for the
purpose of updating such description.
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 (the
"Exchange Act"), subsequent to the date of this Registration Statement and prior
to the filing of a post-effective amendment that indicates that all securities
offered have been sold or that deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference and to be a part hereof from the
date of the 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 that also is or is
deemed to be incorporated by reference herein modifies or supersedes such
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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
The class of Common Stock, par value $.01 per share, to be offered is
registered under Section 12(g) of the Exchange Act.
Plan interests are not being registered in this Registration Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Neither any expert named in this Registration Statement as having
prepared or certified any part hereof (or named as having prepared or certified
a report or valuation for use in connection with the Registration Statement),
nor any counsel for the Company named as having given an opinion upon the
validity of the securities being registered or upon other legal matters in
connection with the registration or offering of such securities, was employed
for such purpose on a contingent basis, or at the time of such preparation,
certification or opinion or at any time thereafter through the date of
effectiveness of this Registration Statement, had, or is to receive in
connection with the offering, a substantial interest, direct or indirect, in the
Company or was connected with the Company as a promoter, underwriter, voting
trustee, director, officer or employee.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 2.02-1 of the Texas Business Corporation Act (the "TBCA")
empowers a corporation to indemnify its directors and officers and to purchase
and maintain liability insurance for directors and officers. Section 2.02-1 of
the TBCA permits indemnification of directors and officers of corporations under
certain conditions and subject to certain limitations and, under certain
circumstances, requires such indemnification. The TBCA provides further that a
provision for indemnification of a director, whether contained in the articles
of incorporation, the bylaws, a resolution of shareholders or directors, an
agreement, or otherwise, is valid only to the extent it is consistent with
Article 2.02-1 of the TBCA, as limited by the articles of incorporation, if such
limitation exists. Article Eleven (a) of the Registrant's Restated Articles of
Incorporation contains a provision providing for indemnification of directors
and officers to the full extent permitted by law. Article VII, Section 7 of the
Registrant's Bylaws, as amended, contains a provision providing for
indemnification to the full extent permitted by law.
Additionally, Article Fourteen of the Registrant's Restated Articles of
Incorporation provides that to the fullest extent permitted by the laws of the
State of Texas as the same exist or may hereafter be amended, a director of the
Corporation will not be liable to the Corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or persons controlling the Registrant pursuant to the foregoing
provisions, the Registrant has been informed that in the opinion of the
Commission, such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-8, including those incorporated herein by
reference.
Exhibit
Number Description of Exhibit
4.1 Calloway's Nursery, Inc. 1998 Stock Option Plan (incorporated by
reference to Exhibit A to the Proxy Statement for Registrant's Annual
Meeting held on February 17, 1999).
4.2 Calloway's Nursery, Inc. 1999 Stock Option Plan (incorporated by
reference to Exhibit A to the Proxy Statement for Registrant's Annual
Meeting held on February 16, 2000).
4.3 Calloway's Nursery, Inc. 2000 Stock Option Plan (incorporated by
reference to Exhibit A to the Proxy Statement for Registrant's Annual
Meeting held on February 21, 2001).
4.4 Calloway's Nursery, Inc. 2001 Stock Option Plan (incorporated by
reference to Exhibit A to the Proxy Statement for Registrant's Annual
Meeting held on February 20, 2002).
5* Opinion of Shannon, Gracey, Ratliff & Miller, L.L.P. regarding legality
of registered securities.
23* Consent of KPMG LLP.
* Filed herewith (see Exhibit Index).
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;
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(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 amendments 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 the 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
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 the 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
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(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, 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 Fort Worth, State of Texas, on the 15th day of July,
2002.
CALLOWAY'S NURSERY, INC.
By: /s/ James C. Estill
----------------------------------------------
James C. Estill, President
and Chief Executive Officer
By: /s/ Daniel G. Reynolds
----------------------------------------------
Daniel G. Reynolds, Vice President
and Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ James C. Estill President, Chief Executive July 15, 2002
--------------------------------- Officer and Director
James C. Estill
/s/ John T. Cosby Vice President and Director July 15, 2002
---------------------------------
John T. Cosby
/s/ John S. Peters Vice President and Director July 15, 2002
---------------------------------
John S. Peters
/s/ George J. Wechsler Vice President and Director July 15, 2002
---------------------------------
George J. Wechsler
/s/ Dr. Stanley Block Director July 15, 2002
---------------------------------
Dr. Stanley Block
/s/ Daniel R. Feehan Director July 15, 2002
---------------------------------
Daniel R. Feehan
/s/ Timothy J. McKibben Director July 15, 2002
---------------------------------
Timothy J. McKibben
/s/ Sterling Cornelius Director July 15, 2002
---------------------------------
Sterling Cornelius
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INDEX OF EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.1 Calloway's Nursery, Inc. 1998 Stock Option Plan (incorporated
by reference to Exhibit A to the Proxy Statement for
Registrant's Annual Meeting held on February 17, 1999).
4.2 Calloway's Nursery, Inc. 1999 Stock Option Plan (incorporated
by reference to Exhibit A to the Proxy Statement for
Registrant's Annual Meeting held on February 16, 2000).
4.3 Calloway's Nursery, Inc. 2000 Stock Option Plan (incorporated
by reference to Exhibit A to the Proxy Statement for
Registrant's Annual Meeting held on February 21, 2001).
4.4 Calloway's Nursery, Inc. 2001 Stock Option Plan (incorporated
by reference to Exhibit A to the Proxy Statement for
Registrant's Annual Meeting held on February 20, 2002).
5 Opinion of Shannon, Gracey, Ratliff & Miller, L.L.P. regarding
legality of registered securities.
23 Consent of KPMG LLP.
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