As filed with the Securities and Exchange Commission on March 27, 2003
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VALASSIS COMMUNICATIONS, INC.
(Exact name of Issuer as specified in its charter)
Delaware 38-2760940
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
19975 Victor Parkway
Livonia, Michigan 48152
(Address of Principal Executive Offices, Zip Code)
VALASSIS COMMUNICATIONS, INC. 2002 LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
------------------------------
Barry P. Hoffman, Esq. Telephone number,
Valassis Communications, Inc. including area code,
19975 Victor Parkway of Agent for Service:
Livonia, Michigan 48152 (734) 591-3000
(Name and Address of Agent for Service)
Copies to:
Mark Thoman, Esq.
McDermott, Will & Emery
50 Rockefeller Plaza
New York, New York 10020
(212) 547-5400
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed maximum
Title of securities to be Amount to be offering price per Proposed maximum Amount of
registered registered (1) share(2) aggregate offering price registration fee
------------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value 3,500,000 shares $25.715 $90,002,500 $7,281.20
$0.01 share
====================================================================================================================================
--------------------
(1) An undetermined number of additional shares may be issued if the
anti-dilution adjustment provisions of the plan become operative.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and (h) under the Securities Act of 1933 on the
basis of the average of the high and low prices of the Common Stock for New
York Stock Exchange Composite Transactions on March 24, 2003, as reported
in The Wall Street Journal.
EXPLANATORY STATEMENT
This Registration Statement is being filed to register 3,500,000 shares of
common stock, par value $.01 per share, of Valassis Communications, Inc. for
issuance pursuant to the Valassis Communications, Inc. 2002 Long-Term Incentive
Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents of the Company, each as filed with the Securities
and Exchange Commission, are incorporated as of their respective dates in this
Registration Statement by reference:
. Annual Report on Form 10-K for the fiscal year ended December 31,
2002.
. All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since December 31, 2001.
. The description of Common Stock contained in the Registration
Statements of the Company filed under Section 12 of the
Securities and Exchange Act of 1934.
. Any amendment or report filed to update such description.
Annual Reports on Form 10-K subsequently filed by the Company pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, and all reports
and other documents subsequently filed pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, will be deemed to be incorporated by reference in
this Registration Statement and to be a part of this Registration Statement from
the respective date of filing of each of those documents until the filing of a
post-effective amendment to this Registration Statement which indicates either
that all securities offered by this Registration Statement have been sold or
which deregisters all of the securities under this Registration Statement then
remaining unsold. Any statement contained in this Registration Statement or in a
document incorporated or deemed to be incorporated by reference in this
Registration Statement will be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document which also is
or is deemed to be incorporated by reference in this Registration Statement
modifies or supersedes that statement. Any statement so modified or superseded
will not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law") permits a Delaware corporation to indemnify any persons who were
or are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer or director
of such corporation, or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided that such officer or director acted in good faith and in a
manner he/she reasonably believed to be in, or not opposed to, the corporation's
best interests, and, for criminal proceedings, had no reasonable cause to
believe his/her conduct was unlawful. A Delaware corporation may indemnify
officers and directors in an action by or in the right of the corporation under
the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him/her against the expenses which such officer or director actually
and reasonably incurred.
In accordance with the Delaware Law, the Restated Certificate of
Incorporation of the Company contains a provision to limit the personal
liability of the directors for violations of their fiduciary duty. This
provision eliminates each director's liability to the Company or its respective
stockholders for monetary damages except (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the Delaware Law or any amendment thereto or
successor provision thereto, or (iv) for any transaction from which a director
derived an improper personal benefit. The effect of this provision is to
eliminate the personal liability of directors for monetary damages for actions
involving a breach of their fiduciary duty of care, including any such actions
involving gross negligence.
The Company's Restated Certificate of Incorporation and the Amended and
Restated By-Laws provide for indemnification to its directors and such of its
officers, employees and agents as the Board of Directors may determine, from
time to time, to the fullest extent permitted by Section 145 of the Delaware
Law.
The Company has obtained directors and officers liability insurance
coverage. The policy insures directors and officers of the Company against
losses arising from claims made against such directors or officers by reason of
certain wrongful acts (as defined), such as errors, misstatements, misleading
statements, acts, omissions, negligence or breaches of duty, but does not insure
such persons against losses arising from claims made against such directors or
officers for the return of certain unauthorized remunerations, for violations of
Section 16(b) of the Securities Exchange Act of 1934, as amended, and for
violations of similar laws and certain other matters.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
----------- -----------
3.1 Restated Certificate of Incorporation of Valassis Communications,
Inc. (incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement No. 33-45189)
3.2 Amended and Restated By-laws of Valassis Communications, Inc.
(incorporated by reference to Exhibit 3(ii) to the Company's Form
10-Q for the period ended March 31, 1999)
-2-
4.1 Certificate of Designation of Preferred Stock of Valassis
Communications, Inc. filed with the Office of the Secretary of
State of Delaware on September 21, 1999, Authentication No. 9983607
(incorporated by reference to Exhibit (4) to the Company's
Form 8-K filed on September 23, 1999)
5.1 Opinion (including consent) of McDermott, Will & Emery as to the
legality of the securities being offered
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of McDermott, Will & Emery (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
Item 9. Undertakings.
The Company undertakes:
. to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
-- to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
-- 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
-- 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;
. 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 offer thereof;
. 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;
. that, for the purpose of determining any liability under the
Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or 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; and
-3-
. insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Company pursuant to
the foregoing provisions, or otherwise, the Company 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 Company of
expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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.
-4-
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 Livonia, State of Michigan, on the 27th day of March,
2003.
VALASSIS COMMUNICATIONS, INC.
By: /s/Alan F. Schultz
-------------------------------
Alan F. Schultz
President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes Alan
F. Schultz, Robert L. Recchia and Barry P. Hoffman, and each of them, with full
power of substitution and full power to act without the other, his or her true
and lawful attorney-in-fact and agent in his or her name, place and stead, to
execute in the name and on behalf of such person, individually and in each
capacity stated below, and to file any and all post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
SIGNATURE TITLE DATED
/s/ Alan F. Schultz Chairman of the Board of March 27, 2003
------------------------- Directors, President and Chief
Alan F. Schultz Executive Officer (Principal
Executive Officer)
/s/ Patrick F. Brennan Director March 27, 2003
-------------------------
Patrick F. Brennan
/s/ Kenneth V. Darish Director March 27, 2003
-------------------------
Kenneth V. Darish
Director March 27, 2003
-------------------------
Seth Goldstein
Director March 27, 2003
-------------------------
Barry P. Hoffman
Director March 27, 2003
-------------------------
Walter H. Ku
/s/ Robert L. Recchia Chief Financial Officer and
------------------------- Director (Principal Financial and
Robert L. Recchia Accounting Officer) March 27, 2003
/s/ Marcella A. Sampson Director March 27, 2003
-------------------------
Marcella A. Sampson
/s/ Faith Whittlesey Director March 27, 2003
-------------------------
Faith Whittlesey
-5-
Exhibit No. Description Page No.
----------- ----------- --------
3.1 Restated Certificate of Incorporation of Valassis
Communications, Inc. (incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement
No. 33-45189)
3.2 Amended and Restated By-laws of Valassis Communications,
Inc. (incorporated by reference to Exhibit 3(ii) to the
Company's Form 10-Q for the period ended March 31, 1999)
4.1 Certificate of Designation of Preferred Stock of Valassis
Communications, Inc. filed with the Office of the
Secretary of State of Delaware on September 21, 1999,
Authentication No. 9983607 (incorporated by reference to
Exhibit (4) to the company's Form 8-K filed on
September 23, 1999)
5.1 Opinion (including consent) of McDermott, Will & Emery
as to the legality of the securities being offered
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of McDermott, Will & Emery (included in
Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
-6-