As filed with the Securities and Exchange Commission on May 11, 2004
Registration No. 333-___
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ADVO, INC.
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(Exact name of issuer as specified in its charter)
DELAWARE 06-0885252
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(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
ONE TARGETING CENTRE, WINDSOR, CONNECTICUT 06095
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(Address of Principal Executive Offices)
ADVO, INC. 401(k) SAVINGS PLAN (PLAN NUMBER 004)
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(Full title of the plan)
STEPHEN L. PALMER
CORPORATE SECRETARY
ONE TARGETING CENTRE, WINDSOR, CONNECTICUT 06095
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(Name and address of agent for service)
(860) 285-6100
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered (1) offering price per share (2) aggregate offering price registration fee
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Common Stock, par 50,000 shares $31.64 $1,581,750 $200.41
value $.01 per share
(1) Pursuant to Rule 416(c) under the Securities Act of 1933 (the
"Securities Act"), this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
ADVO, Inc. 401(k) Savings Plan (Plan Number 004) (the "Plan") described
herein and, pursuant to Rule 416(b), also covers an indeterminate
number of additional shares of Common Stock that may be offered or
issued pursuant to such plan as a result of stock splits, stock
dividends or similar transactions.
(2) Estimated pursuant to paragraphs (c) and (h) of Rule 457 of the
Securities Act, solely for the purpose of calculating the registration
fee, based on the average of the high and low sales prices of shares of
Common Stock on May 10, 2004, as reported on the New York Stock
Exchange.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. - INCORPORATION OF DOCUMENTS BY REFERENCE
ADVO, Inc. (the "Company") and the Plan hereby incorporate herein by
reference the following documents filed by the Company with the Securities and
Exchange Commission ("SEC"):
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 27, 2003, filed pursuant to Sections 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal quarter
ended December 27, 2003 and March 27, 2004;
(c) The Company's Current Reports on Form 8-K dated April 15, 2004
March 25, 2004, January 23, 2004, November 6, 2003 and October 16,
2003; and
(d) The description of the Company's Common Stock contained in its
registration statement on Form 10 filed with the SEC on September 15,
1986 under the Exchange Act, and any amendment or report filed under
the Exchange Act for the purpose of updating such description.
All documents subsequently filed by the Company or the Plan with the
SEC 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 indicate that all
securities offered by this Registration Statement have been sold or which
deregister 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 filing of such document
with the SEC until the information contained therein is superseded or updated by
any subsequently filed document which is incorporated by reference into this
Registration Statement or by any document which constitutes part of the
prospectus relating to the Plan. Unless expressly incorporated into this
Registration Statement, a report furnished on Form 8-K shall not be incorporated
by reference into this Registration Statement.
ITEM 4. - DESCRIPTION OF SECURITIES
This item is not applicable to the securities to be registered hereby.
ITEM 5. - INTERESTS OF NAMED EXPERTS AND COUNSEL
Stephen L. Palmer, a partner of Kirkpatrick & Lockhart LLP, serves as
Secretary of the Company.
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ITEM 6. - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
authorizes a corporation to indemnify its directors, officers and certain other
persons (each, an "Indemnified Party") to the extent set forth therein. The
Company intends to provide to its Indemnified Parties the maximum
indemnification and protection permitted by applicable law.
In addition, the Company's Restated Certificate of Incorporation, as
amended, and its Restated Bylaws empower the Company to indemnify its
Indemnified Parties against liabilities, costs and expenses (including fees and
disbursements of counsel) imposed upon or incurred by any such person, subject
to specified standards and conditions. Furthermore, the Company may advance
expenses to an Indemnified Party provided that such person specifically
undertakes to repay such advanced amounts if it is ultimately determined that
such person is not entitled to indemnification. In addition, the Certificate of
Incorporation provides that, to the fullest extent permitted by applicable law,
none of the Company's directors will be personally liable for monetary damages
for breach of fiduciary duty as a director.
The Company also intends to maintain insurance on behalf of its
directors and officers to provide protection against certain liabilities,
including liabilities for which the Company may not have the power to indemnify
pursuant to Section 145.
ITEM 7. - EXEMPTION FROM REGISTRATION CLAIMED
This item is not applicable to the securities to be registered hereby.
ITEM 8. - EXHIBITS
The following is a list of Exhibits included as part of this
Registration Statement. The Company hereby undertakes to submit the Plan and any
amendment thereto to the Internal Revenue Service ("IRS") in a timely manner and
to make all changes required by the IRS in order to qualify the Plan under
Section 401 of the Internal Revenue Code of 1986, as amended.
Exhibit No. Description
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4(a) ADVO, Inc. 401(k) Savings Plan (Plan Number 004). Filed herewith.
4(b) Amended and Restated Stockholder Protection Incorporated by reference to Exhibit
Rights Agreement, dated as of February 10, 4(a) of the Company's Form 8-K
2003, between the Company and Mellon dated November 25, 2002.
Investor Services LLC, as Rights Agent,
including Exhibit A and Exhibit B.
5 Opinion of Kirkpatrick & Lockhart LLP as to Filed herewith.
the legality of the securities being registered.
23(a) Consent of Ernst & Young LLP, Independent Filed herewith.
Auditors.
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23(b) Consent of Kirkpatrick & Lockhart LLP Filed herewith.
(included in the opinion filed as Exhibit 5 to
this Registration Statement).
24 Power of Attorney. (See Signature Page).
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;
(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; 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) do 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 SEC
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 the 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 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 each filing of the 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 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 SEC such
indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
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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 of 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 Town of Windsor, State of Connecticut, on May 10, 2004.
ADVO, INC.
By: /s/ GARY M. MULLOY
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Gary M. Mulloy
Chairman and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned hereby appoints John D. Speridakos, his/her
true and lawful attorney to execute on behalf of the undersigned any and all
amendments to this registration statement and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission. Each of the undersigned hereby ratifies and
confirms all that such attorney may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, 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/ GARY M. MULLOY Chairman, Chief Executive Officer May 10, 2004
----------------------------- and Director (Principal Executive Officer)
Gary M. Mulloy
/s/ DONALD E. MCCOMBS Executive Vice President - President, May 10, 2004
------------------------- Operations Group and Acting Chief Financial
Donald E. McCombs Officer (Principal Financial Officer)
/s/ JOHN D. SPERIDAKOS Vice President and Controller (Principal May 10, 2004
---------------------------- Accounting Officer)
John D. Speridakos
/s/ TODD BROWN Director May 10, 2004
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Todd Brown
/s/ DAVID F. DYER Director May 10, 2004
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David F. Dyer
/s/ BOBBIE GAUNT Director May 10, 2004
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Bobbie Gaunt
/s/ KAREN KAPLAN Director May 10, 2004
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Karen Kaplan
/s/ JOHN J. MAHONEY Director May 10, 2004
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John J. Mahoney
/s/ HOWARD H. NEWMAN Director May 10, 2004
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Howard H. Newman
Pursuant to the requirements of the Securities Act, the Plan
Administrator of the ADVO, Inc. 401(k) Savings Plan (Plan Number 004) has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Windsor, State of
Connecticut on May 10, 2004.
ADVO, INC. 401(K) SAVINGS PLAN (PLAN NUMBER 004)
By: ADVO, INC.
By: /s/ JOHN D. SPERIDAKOS
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Name: John D. Speridakos
Title: Vice President and Controller
EXHIBIT INDEX
Incorporation by
Exhibit No. Description Reference
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4(a) ADVO, Inc. 401(k) Savings Plan (Plan Number Filed herewith.
004).
4(b) Amended and Restated Stockholder Incorporated by reference to Exhibit
Protection Rights Agreement, dated as of 4(a)of the Company's Form 8-K
February 10, 2003, between the Company dated November 25, 2002.
and Mellon Investor Services LLC, as
Rights Agent, including Exhibit A and
Exhibit B.
5 Opinion of Kirkpatrick & Lockhart LLP as Filed herewith.
to the legality of the securities being
registered.
23(a) Consent of Ernst & Young LLP, Filed herewith.
Independent Auditors.
23(b) Consent of Kirkpatrick & Lockhart LLP Filed herewith.
(included in the opinion filed as Exhibit 5 to
this Registration Statement).
24 Power of Attorney. (See Signature Page).