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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 12, 1999
REGISTRATION NO. 333-83683
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BAKER & TAYLOR CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 5009 56-1767111
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of incorporation or organization) Classification Code No.) Identification No.)
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2709 Water Ridge Parkway
Charlotte, NC 28217
(704) 357-3500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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SUSAN E. BACKSTROM
Secretary, Senior Vice President and General Counsel
1200 U.S. Highway 22 East
Bridgewater, NJ 08807
(908) 429-6412
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
JOHN D. WATSON, JR., ESQ. NICHOLAS P. SAGGESE, ESQ.
LATHAM & WATKINS SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
1001 PENNSYLVANIA AVENUE, N.W. 300 SOUTH GRAND AVENUE, SUITE 3400
WASHINGTON, DC 20004 LOS ANGELES, CA 90071
(202) 637-2200 (213) 687-5000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH
SECTION 8(a), MAY DETERMINE.
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EXPLANATORY NOTE: THIS AMENDMENT NO. 1 TO FORM S-1 REGISTRATION STATEMENT
(REGISTRATION NO. 333-83683) OF BAKER & TAYLOR CORPORATION IS BEING FILED SOLELY
TO INCLUDE EXHIBITS TO THE REGISTRATION STATEMENT NOT PREVIOUSLY FILED.
ACCORDINGLY, PART 1, THE FORM OF PROSPECTUS, HAS BEEN OMITTED FROM THIS FILING.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses, all of which will be
borne by the Registrant, in connection with the sale and distribution of the
securities being registered, other than the underwriting discounts and
commissions. All amounts shown are estimates except for the Securities and
Exchange Commission registration fee and the NASD filing fee.
SEC Registration Fee........................................ $ 20,850
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NASD Filing Fee............................................. 8,000
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Listing Fee............................................ *
Transfer Agent Fees......................................... *
Accounting Fees and Expenses................................ *
Legal Fees and Expenses..................................... *
Printing and Mailing Expenses............................... *
Miscellaneous............................................... *
Total............................................. $ *
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* To be supplied by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
("Section 145") permits a Delaware corporation to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person 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 (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 if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful.
In the case of an action by or in the right of the corporation, Section 145
permits the corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person 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 (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interest of the corporation. 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 to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that,
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despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
To the extent that a present or former director or officer of a corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in the preceding two paragraphs, Section 145 requires
that such person be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith.
Section 145 provides that expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal, administrative, or
investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such person is not entitled to
be indemnified by the corporation as authorized in Section 145.
Our Certificate provides that one of our officers or directors will not be
personally liable to us or our stockholders for monetary damages for any breach
of his fiduciary duty as an officer or director, except in certain cases where
liability is mandated by the DGCL. The provision has no effect on any
non-monetary remedies that may be available to us or our stockholders, nor does
it relieve us or our officers or directors from compliance with federal or state
securities laws. The Certificate also generally provides that we will indemnify,
to the fullest extent permitted by law, any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit, investigation, administrative hearing or any other proceeding (each, a
"Proceeding") by reason of the fact that he is or was our director or officer,
or is or was serving at our request as a director, officer, employee or agent of
another entity, against expenses incurred by him in connection with such
Proceeding. An officer or director shall not be entitled to indemnification from
us if (i) the officer or director did not act in good faith and in a manner
reasonably believed to be in, or not opposed to, our best interests, or (ii)
with respect to any criminal action or proceeding, the officer or director had
reasonable cause to believe his conduct was unlawful.
Our Bylaws provide that we will indemnify any person who is made a party to
any threatened, pending or completed action, suit or proceeding by reason of the
fact that he or she is or was our director or officer, and may indemnify any of
our employees or agents in those circumstances, against expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding. No indemnification may be provided for any person who shall have
been finally adjudicated not to have acted honestly or in the reasonable belief
that his or her action was in or not opposed to our best interests or who had
reasonable cause to believe that his or her conduct was unlawful.
Indemnification must be provided to any of our directors, officers, employees or
agents to the extent the person succeeded, on the merits or otherwise, in
defense of any action or claim described above. Any indemnification under this
provision of the Bylaws, unless required under the Bylaws or ordered by a court,
can be made only as authorized in each specific case upon a determination by a
majority of disinterested directors or by independent legal counsel or by the
stockholders that such indemnification is appropriate under the standard set
forth in the preceding sentence.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Set forth in chronological order is information regarding all securities
sold and stock options granted by the Registrant since August 31, 1996. Further
included is the consideration, if any, received by the Registrant for such
securities, and information relating to the section of the Securities Act of
1933, as amended (the "Securities Act"), and the rules of the Securities and
Exchange Commission under which exemption from registration was claimed. All
awards of options did not
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involve any sale under the Securities Act. None of these securities were
registered under the Securities Act. No sale of securities involved the use of
an underwriter and no commissions were paid in connection with the sales of any
securities.
1. In April 1999, we granted to employees and directors options to purchase
an aggregate of shares of common stock with an exercise price of $
per share. The issuance of these securities were not registered under the
Securities Act in reliance upon Rule 701 of the rules promulgated under the
Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
EXHIBIT
NO. DESCRIPTION
- ------- -----------
1.1 -- Form of Underwriting Agreement.*
2.1 -- Stock purchase agreement by and among Baker & Taylor, Inc.
and the stockholders of Yankee Book Peddler, Inc. dated June
22, 1999.#
3.1 -- Amended and Restated Certificate of Incorporation of the
Registrant.*
3.2 -- By-Laws of the Registrant.*
4.1 -- Specimen Certificate for shares of common stock, $ par
value, of the Registrant.*
5.1 -- Opinion of Latham & Watkins with respect to the validity of
the securities being offered.*
10.1 -- Content license agreement between Baker & Taylor, Inc. and
Amazon.com dated March 26, 1997.#
21.1 -- Subsidiaries of the Registrant.*
23.1 -- Consent of Arthur Andersen LLP.+
24.1 -- Power of Attorney (included on page II-5).+
27.1 -- Financial Data Schedule.+
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* To be filed by amendment.
+ Previously filed.
# Confidential treatment requested as to certain portions.
(b) Schedules
Schedule I -- Condensed Financial Information of Registrant
Schedule II -- Valuation and Qualifying Accounts
All other schedules have been omitted because they are not required or
because the required information is given in the Consolidated Financial
Statements or Notes thereto.
ITEM 17. UNDERTAKINGS
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 provisions contained in the Articles of
Incorporation, as amended, and By-Laws, as amended, of the Registrant and the
laws of the State of Delaware 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 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
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being registered, the Registrant will, unless in the opinion of its counsel the
matters have 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.
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and this offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Baker & Taylor Corporation has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in
Charlotte, North Carolina on August 12, 1999.
BAKER & TAYLOR CORPORATION
By: /s/ EDWARD H. GROSS
---------------------------------------
Edward H. Gross
Executive Vice President,
Chief Administrative Officer
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
NAME TITLE DATE
---- ----- ----
* President and Chief Executive August 12, 1999
- --------------------------------------------------- Officer (Principal Executive
Craig M. Richards Officer)
/s/ EDWARD H. GROSS Executive Vice President, August 12, 1999
- --------------------------------------------------- Chief Administrative Officer
Edward H. Gross and Chief Financial Officer
(Principal Financial and
Accounting Officer)
* Director and Chairman August 12, 1999
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Patrick W. Gross
* Director and Co-Chairman August 12, 1999
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Joseph R. Wright, Jr.
* Director and Vice Chairman August 12, 1999
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Daniel A. D'Aniello
* Director August 12, 1999
- ---------------------------------------------------
Philip B. Dolan
*By: /s/ EDWARD H. GROSS
-----------------------------------
Edward H. Gross
Attorney-in-Fact
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REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS ON SCHEDULES
To Baker & Taylor Corporation:
We have audited, in accordance with generally accepted auditing standards, the
consolidated financial statements of Baker & Taylor Corporation and subsidiaries
included in this registration statement, and have issued our report thereon
dated July 22, 1999. Our audits were made for the purpose of forming an opinion
on the basic financial statements taken as a whole. The schedules listed in Item
16(b) of this registration statement are the responsibility of the Company's
management and are presented for purposes of complying with the Securities and
Exchange Commission's rules and are not part of the basic financial statements.
These schedules have been subjected to the auditing procedures applied in the
audits of the basic financial statements and, in our opinion, fairly state in
all material respects the financial data required to be set forth therein in
relation to the basic financial statement taken as a whole.
/s/ ARTHUR ANDERSEN LLP
Charlotte, North Carolina,
July 22, 1999.
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BAKER & TAYLOR CORPORATION
SCHEDULE I -- CONDENSED FINANCIAL INFORMATION OF REGISTRANT
CONDENSED BALANCE SHEETS
(in thousands)
JUNE 26, JUNE 25,
1998 1999
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ASSETS
Current assets.............................................. $ 0 $ 410
Investment in and advances to subsidiaries.................. 28,903 29,896
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$28,903 $30,306
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LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities......................................... $ -- $ 117
Other liabilities........................................... -- 15,025
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Total liabilities................................. -- 15,142
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Common stock................................................ 206 207
Other stockholders' equity.................................. 28,697 14,957
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Total stockholders' equity........................ 28,903 15,164
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$28,903 $30,306
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BAKER & TAYLOR CORPORATION
SCHEDULE I -- CONDENSED FINANCIAL INFORMATION OF REGISTRANT
CONDENSED STATEMENTS OF OPERATIONS
(in thousands)
FISCAL YEAR ENDED
------------------------------
JUNE 27, JUNE 26, JUNE 25,
1997 1998 1999
-------- -------- --------
Expenses, net of tax........................................ $(4,309) $ (481) $ (342)
Extraordinary item, net of tax.............................. -- 28,720 --
Equity in income of subsidiaries............................ 1,347 24,460 22,299
------- ------- -------
Net income (loss)........................................... $(2,962) $52,699 $21,957
======= ======= =======
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BAKER & TAYLOR CORPORATION
SCHEDULE I -- CONDENSED FINANCIAL INFORMATION OF REGISTRANT
CONDENSED STATEMENTS OF CASH FLOWS
(in thousands)
FISCAL YEAR ENDED
------------------------------
JUNE 27, JUNE 26, JUNE 25,
1997 1998 1999
-------- -------- --------
OPERATING ACTIVITIES
Net cash used in operating activities..................... $ -- $ -- $ (442)
------- ------- --------
INVESTING ACTIVITIES
Net cash used in investigating activities................. -- -- (425)
------- ------- --------
FINANCING ACTIVITIES
Proceeds from term loan................................... -- -- 15,000
Repurchases of common stock............................... -- -- (125)
Proceeds from exercise of stock options................... -- -- 407
Dividend paid............................................. -- -- (25,004)
Debt retirement........................................... -- (5,325) --
Intercompany transfers from (to) subsidiaries............. -- 5,325 (14,648)
Dividends received from subsidiary........................ -- -- 25,429
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Net cash provided by investing activities......... -- -- 1,059
------- ------- --------
Net increase in cash and cash equivalents................... -- -- 192
Cash and cash equivalents, beginning of period.............. -- -- --
------- ------- --------
Cash and cash equivalents, end of period.................... $ -- $ -- $ 192
======= ======= ========
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NOTES TO CONDENSED FINANCIAL STATEMENTS
1. PRESENTATION:
These condensed financial statements have been prepared pursuant to the
rules and regulations of the Securities and Exchange Commission. Certain
information and note disclosures normally included in annual financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to those rules and regulations, although
the Company believes that the disclosures made are adequate to make the
information presented not misleading. For disclosures regarding commitments and
contingencies, see Notes 12, 16 and 17 to Consolidated Financial Statements.
Prior to December 9, 1998 Baker & Taylor Corporation had one wholly-owned
subsidiary, Baker & Taylor, Inc., which conducts all of the operating activities
of the Company. On December 9, 1998, an existing dormant subsidiary of Baker &
Taylor Inc. was renamed Baker & Taylor Benefits Management Corp. and became a
subsidiary of the parent whose purpose is to hold and manage the medical
liabilities of the Company.
2. SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS FOR ADDITIONAL DISCLOSURES.
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BAKER & TAYLOR CORPORATION
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
FOR THE FISCAL YEARS ENDED JUNE 25, 1999, JUNE 26, 1998 AND JUNE 27, 1997
(in thousands)
BALANCE AT CHARGE TO
BEGINNING COSTS AND BALANCE AT
DESCRIPTION OF YEAR EXPENSES DEDUCTIONS END OF YEAR
----------- ---------- --------- ---------- -----------
FISCAL YEAR ENDED JUNE 25, 1999
Reserve for uncollectible amounts -- trade
accounts receivable............................ $ 610 $ 297 $ (565) $ 342
Reserve for uncollectible amounts -- retained
interest in pool of receivables................ 4,555 3,263 (3,205) 4,613
Restructuring reserves............................ -- 7,350 (3,960) 3,390
FISCAL YEAR ENDED JUNE 26, 1998
Reserve for uncollectible amounts -- trade
accounts receivable............................ 477 480 (347) 610
Reserve for uncollectible amounts -- retained
interest in pool of receivables................ 3,858 1,542 (845) 4,555
Restructuring reserves............................ -- -- -- --
FISCAL YEAR ENDED JUNE 27, 1997
Reserve for uncollectible amounts -- trade
accounts receivable............................ 433 221 (177) 477
Reserve for uncollectible amounts -- retained
interest in pool of receivables................ 3,806 1,335 (1,283) 3,858
Restructuring reserves............................ -- -- -- --
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EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
- ------- -----------
1.1 -- Form of Underwriting Agreement.*
2.1 -- Stock purchase agreement by and among Baker & Taylor, Inc.
and the stockholders of Yankee Book Peddler, Inc. dated June
22, 1999.#
3.1 -- Amended and Restated Certificate of Incorporation of the
Registrant.*
3.2 -- By-Laws of the Registrant.*
4.1 -- Specimen Certificate for shares of common stock, $ par
value, of the Registrant.*
5.1 -- Opinion of Latham & Watkins with respect to the validity of
the securities being offered.*
10.1 -- Content license agreement between Baker & Taylor, Inc. and
Amazon.com dated March 26, 1997.#
21.1 -- Subsidiaries of the Registrant.*
23.1 -- Consent of Arthur Andersen LLP.+
24.1 -- Power of Attorney (included on page II-5).+
27.1 -- Financial Data Schedule.+
- -------------------------
* To be filed by amendment.
+ Previously filed.
# Confidential treatment requested as to certain portions.