<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 6, 1998
REGISTRATION NO. 333-49749
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 5
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
YOUNG AMERICA CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
MINNESOTA 8980 41-1892816
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
------------------------
717 FAXON ROAD
YOUNG AMERICA, MINNESOTA 55397 (612)467-1100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
YOUNG AMERICA HOLDINGS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
MINNESOTA 8980 41-0983697
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
------------------------
717 FAXON ROAD
YOUNG AMERICA, MINNESOTA 55397 (612)467-1100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
CHARLES D. WEIL
CHIEF EXECUTIVE OFFICER
717 FAXON ROAD
YOUNG AMERICA, MINNESOTA 55397 (612)467-1100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
WITH A COPY TO:
FREDERICK M. BACHMAN, ESQ.
O'SULLIVAN GRAEV & KARABELL, LLP
30 ROCKEFELLER PLAZA
NEW YORK, NEW YORK 10112
(212) 408-2400
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If any of the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, 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, 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. [ ]
- ------------------
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE(1) FEE
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
11 5/8% Series B Senior Subordinated Notes
due 2006..................................... $80,000,000 100% $80,000,000 $23,600(3)
- ---------------------------------------------------------------------------------------------------------------------------------
Guarantees of the 11 5/8% Series B Senior
Subordinated Notes........................... $80,000,000 (2) (2) (2)
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) This Registration Statement covers the guarantees to be issued by Young
America Holdings, Inc. of Young America Corporation's obligations under the
11 5/8% Series B Senior Subordinated Notes. Such guarantees are to be issued
for no additional consideration, and therefore no registration fee is
required.
(3) Previously paid.
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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 THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
EXPLANATORY NOTE
This Amendment No. 5 consists solely of the filing of Exhibit 5.2 to the
Registration Statement on Form S-4 (File No. 333-49749) of Young America
Corporation under the Securities Act of 1933.
<PAGE> 3
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 302A.521, Subd. 2 of the Minnesota Business Corporation Act (the
"MBCA") requires every Minnesota corporation to indemnify a person made or
threatened to be made a party to a proceeding by reason of the former or present
official capacity of such person with respect to such corporation, against
judgments, penalties, fines, including, without limitation, excise taxes
assessed against such person with respect to an employee benefit plan,
settlements, and reasonable expenses, including attorneys' fees and
disbursements, incurred by such person in connection with such proceeding with
respect to the same acts or omissions if such person (1) has not been
indemnified by another organization or employee benefit plan for the same
judgements, penalties or fines; (2) acted in good faith; (3) received no
improper personal benefit, and statutory procedure has been followed in the case
of any conflict of interest by a director; (4) in the case of a criminal
proceeding, had no reasonable cause to believe the conduct was unlawful; and (5)
in the case of acts or omission occurring in the performance of such person's
official capacity of director, or for a person not a director, in such person's
official capacity as an officer, board committee member or employee, reasonably
believed that the conduct was not opposed to the best interest of the
corporation. In addition, Section 302A.521, Subd. 3, requires, in certain
instances, payment by a corporation, upon written request, of reasonable
expenses incurred by such person in advance of final disposition of such
proceeding. A decision as to the indemnification required under the MBCA by a
corporation with respect to any proceeding is to be made by a disinterested
majority of the board of directors present at a meeting at which a disinterested
quorum is present, or by a designated committee of such board of directors, by
special legal counsel, by the shareholders, or, in a proceeding brought by any
party with respect to an indemnification claim, by a court of competent
jurisdiction.
The Bylaws of Young America and Holdings provide that Young America and
Holdings shall, to the extent authorized under the MBCA, indemnify any directors
or officers of Young America or Holdings, as the case may be, for acts or
omissions covered by Section 302A.521 of the MBCA.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits.
<TABLE>
<C> <S>
3.1 Articles of Incorporation of Young America
3.2 Amended and Restated Articles of Incorporation of Holdings
3.3 Bylaws of Young America
3.4 Restated Bylaws of Holdings
4.1 Indenture dated as of February 23, 1998 for the Notes
(including the form of New Note attached as Exhibit B
thereto) among Young America, Holdings and Marine Midland
Bank, as Trustee
4.2 Registration Rights Agreement dated as of February 23, 1998
among Young America, Holdings and the Initial Purchaser
5.1 Opinion of O'Sullivan Graev & Karabell, LLP
*5.2 Opinion of Kaplan, Strangis and Kaplan, P.A.
10.1 Recapitalization Agreement dated November 25, 1997 among
Holdings, Jay F. Ecklund ("Ecklund"), John F. Ecklund 1995
Irrevocable Trust, Sheldon McKensie Ecklund 1995 Irrevocable
Trust, John F. Ecklund 1997 Irrevocable Trust, Sheldon
McKensie Ecklund 1997 Irrevocable Trust, Jay F. Ecklund 1997
Irrevocable Annuity Trust (the "Ecklund Trusts") and BTCP
10.2 Escrow Agreement dated as of November 25, 1997 among
Holdings, Ecklund, the Ecklund Trusts and Norwest Bank
Minnesota, National Association, as Escrow Agent
10.3 Put Option Agreement dated as of November 25, 1997 between
Holdings and Ecklund
10.4 Stock Purchase Agreement dated November 25, 1997 between
Holdings and BTCP
</TABLE>
II-1
<PAGE> 4
<TABLE>
<C> <S>
12.1 Statement re: computation of ratios
16.1 Letter re Change in Certifying Accountant
21.1 Subsidiaries of the Registrants
23.1 Consent of O'Sullivan Graev & Karabell, LLP (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of McGladrey & Pullen, LLP
23.4 Consent of Kaplan, Strangis and Kaplan, P.A. (included in Exhibit 5.2)
24.1 Powers of Attorney (included on the signature pages)
25.1 Statement of Eligibility and Qualifications under the Trust Indenture Act of 1939 of Marine Midland
Bank as Trustee
27.1 Financial Data Schedule
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees
99.4 Form of Letter to Clients
</TABLE>
- ---------------
* Filed herewith.
(b) Financial Statement Schedules:
All schedules are omitted because they are not applicable or the required
information is shown in financial statements or notes thereto.
ITEM 22. UNDERTAKINGS.
(a) The undersigned registrants hereby undertake:
(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.
(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.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrants
have duly caused this Amendment No. 5 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New
York, State of New York, on the 6th day of August, 1998.
Young America Corporation
By: /s/ CHARLES D. WEIL
------------------------------------
Name: Charles D. Weil
Title: President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-4 has been signed as of the 6th day of August,
1998 by the following persons in the capacity indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* President and Chief Executive Officer
- ----------------------------------------------------- (principal executive officer)
Charles D. Weil
* Vice President of Finance, Treasurer,
- ----------------------------------------------------- Secretary and Chief Financial Officer
L. Joseph Kulas (principal financial and accounting officer)
* Chairman of the Board
- -----------------------------------------------------
Robert Marakovits
Director
- -----------------------------------------------------
Jay F. Ecklund
* Director
- -----------------------------------------------------
J. Mark A. MacDonald
</TABLE>
*By: /s/ CHARLES D. WEIL
-------------------------------
Attorney-in-Fact
II-5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrants
have duly caused this Amendment No. 5 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New
York, State of New York, on the 6th day of August, 1998.
Young America Holdings, Inc.
By: /s/ CHARLES D. WEIL
------------------------------------
Name: Charles D. Weil
Title: President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-4 has been signed as of the 6th day of August,
1998 by the following persons in the capacity indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* President and Chief Executive Officer
- ----------------------------------------------------- (principal executive officer)
Charles D. Weil
* Vice President of Finance, Treasurer,
- ----------------------------------------------------- Secretary and Chief Financial Officer
L. Joseph Kulas (principal financial and accounting officer)
* Chairman of the Board
- -----------------------------------------------------
Robert Marakovits
Director
- -----------------------------------------------------
Jay F. Ecklund
* Director
- -----------------------------------------------------
J. Mark A. MacDonald
</TABLE>
*By: /s/ CHARLES D. WEIL
-------------------------------
Attorney-in-Fact
II-6
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE
------- ----------- ----
<C> <S> <C>
3.1 Articles of Incorporation of Young America..................
3.2 Amended and Restated Articles of Incorporation of
Holdings....................................................
3.3 Bylaws of Young America.....................................
3.4 Restated Bylaws of Holdings.................................
4.1 Indenture dated as of February 23, 1998 for the Notes
(including the form of New Note attached as Exhibit B
thereto) among Young America, Holdings and Marine Midland
Bank, as Trustee............................................
4.2 Registration Rights Agreement dated as of February 23, 1998
among Young America, Holdings and the Initial Purchaser.....
5.1 Opinion of O'Sullivan Graev & Karabell, LLP.................
*5.2 Opinion of Kaplan, Strangis and Kaplan, P.A.................
10.1 Recapitalization Agreement dated November 25, 1997 among
Holdings, Jay F. Ecklund ("Ecklund"), John F. Ecklund 1995
Irrevocable Trust, Sheldon McKensie Ecklund 1995 Irrevocable
Trust, John F. Ecklund 1997 Irrevocable Trust, Sheldon
McKensie Ecklund 1997 Irrevocable Trust, Jay F. Ecklund 1997
Irrevocable Annuity Trust (the "Ecklund Trusts") and BTCP...
10.2 Escrow Agreement dated as of November 25, 1997 among
Holdings, Ecklund, the Ecklund Trusts and Norwest Bank
Minnesota, National Association, as Escrow Agent............
10.3 Put Option Agreement dated as of November 25, 1997 between
Holdings and Ecklund........................................
10.4 Stock Purchase Agreement dated November 25, 1997 between
Holdings and BTCP...........................................
10.5 Stock Purchase Agreement dated November 25, 1997 between
Holdings and OTPPB..........................................
10.6 Stockholders' Agreement dated as of November 25, 1997 among
Holdings, BTCP, OTPPB and Ecklund...........................
10.7 Amended and Restated Registration Rights Agreement dated as
of July 31, 1998 among Holdings, BTCP, OTPPB and Ecklund....
10.8 Purchase Agreement dated as of February 18, 1998 among Young
America, Holdings and BTAB..................................
10.9 Management Fee Agreement dated as of November 25, 1997 among
Holdings, BTCP and OTPPB....................................
10.10 Stock Subscription and Repurchase Agreement dated November
25, 1997 between Holdings and Charles D. Weil...............
10.11 Amendment to Stock Subscription and Repurchase Agreement
dated as of February 23, 1998 between Holdings and Charles
D. Weil.....................................................
10.12 Stock Subscription and Repurchase Agreement dated November
25, 1997 between Holdings and L. Joseph Kulas...............
10.13 Employment Agreement dated November 24, 1997 between
Holdings and Charles D. Weil................................
10.14 Employment Agreement dated August 1, 1996 between Holdings
and L. Joseph Kulas.........................................
10.15 1997 Management Recognition, Transition and Equity Bonus
Plan of Holdings dated November 25, 1997....................
</TABLE>
<PAGE> 8
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE
------- ----------- ----
<C> <S> <C>
10.16 Change in Control Agreement dated February 21, 1997 between
Holdings and L. Joseph Kulas................................
10.17 Intentionally omitted.......................................
10.18 Credit Agreement dated April 7, 1998 between Young America
and Norwest Bank Minnesota, National Association............
10.19 Change-in-Control Agreement dated as of February 21, 1997
between Holdings and Frederick H. Stinchfield...............
10.20 Change-in-Control Agreement dated as of February 21, 1997
between Holdings and David Q. Ferguson......................
10.21 Change-in-Control Agreement dated as of February 21, 1997
between Holdings and Robert J. Beaudoin.....................
10.22 Intentionally omitted.......................................
10.23 Change-in-Control Agreement dated as of February 21, 1997
between Holdings and Michael Larson.........................
10.24 Change-in-Control Agreement dated as of February 21, 1997
between Holdings and Barbara Spiess.........................
10.25 Change-in-Control Agreement dated as of February 21, 1997
between Holdings and Sharon Wagner..........................
10.26 Senior Credit Agreement dated as of November 25, 1997 among
Young America, Holdings, the Lenders names therein and
Bankers Trust Company.......................................
10.27 Non-Competition Agreement dated as of November 25, 1997
among Holdings, Ecklund and the other individuals listed on
the signature pages thereto.................................
10.28 Release and Indemnity Agreement dated as of November 21,
1997 among Holdings, Ecklund, the Ecklund Trusts, Albert O.
Foster, Jerome J. Jenko, Thomas O. Moe, and R. Gary St.
Marie.......................................................
10.29 Form of Exchange Agent Agreement among Holdings, the Company
and Marine Midland Bank.....................................
12.1 Statement re: computation of ratios.........................
16.1 Letter re Change in Certifying Accountant...................
21.1 Subsidiaries of the Registrants.............................
23.1 Consent of O'Sullivan Graev & Karabell, LLP (included in
Exhibit 5.1)................................................
23.2 Consent of Arthur Andersen LLP..............................
23.3 Consent of McGladrey & Pullen, LLP..........................
23.4 Consent of Kaplan, Strangis and Kaplan, P.A. (included in
Exhibit 5.2)................................................
24.1 Powers of Attorney (included on the signature pages)........
25.1 Statement of Eligibility and Qualifications under the Trust
Indenture Act of 1939 of Marine Midland Bank as Trustee.....
27.1 Financial Data Schedule.....................................
99.1 Form of Letter of Transmittal...............................
99.2 Form of Notice of Guaranteed Delivery.......................
99.3 Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees................................
99.4 Form of Letter to Clients...................................
</TABLE>
- ---------------
* Filed herewith.
<PAGE> 1
Exhibit 5.2
[LETTERHEAD OF KAPLAN, STRINGIS AND KAPLAN, P.A.]
June 3, 1998
Young America Corporation
Young American Holdings, Inc.
717 Faxon Road
Young America, MN 55397-9481
Ladies and Gentlemen:
We have acted as special Minnesota counsel to Young American Corporation, a
Minnesota corporation (the "Company"), and Young America Holdings, Inc., a
Minnesota corporation ("Holdings"), in connection with the issuance by the
Company of its 11 5/8% Series B Senior Subordinated Notes due 2006 (the
"Notes"). This opinion is being furnished in connection with the filing with
the Securities and Exchange Commission (the "Commission") of the Registration
Statement on Form S-4, as amended, of the Company and Holdings (File No.
333-49749) (the "Registration Statement") with respect to the Notes.
We have examined such documents, including without limitation, the
Indenture dated February 23, 1998 (the "Indenture") pursuant to which the Notes
will be issued, and have reviewed such questions of law as we have considered
necessary and appropriate for the purposes of this opinion.
In rendering our opinion set forth below, we have assumed the authenticity
of all documents submitted to us as originals, the genuineness of all
signatures and the conformity to authentic originals of all documents submitted
to us as copies. We have also assumed the legal capacity for all purposes
relevant hereto of all natural persons. As to questions of fact material to our
opinion, we have relied upon the representations of or certificates from
officers of the Company and Holdings and upon certificates of public officials.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Minnesota.
2. Holdings is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Minnesota.
30D6/1
<PAGE> 2
Young America Corporation
Young America Holdings, Inc.
June 3, 1998
Page 2
3. The Notes have been duly authorized for the issuance by the Company.
4. The Holdings Guarantee (as such term is defined in the Indenture) has
been duly authorized by Holdings.
The opinions set forth above are subject to the following qualifications:
1. We are qualified to practice law only in the State of Minnesota and do
not purport to be expert in the laws of any other state. This opinion
is limited to the laws of the State of Minnesota.
2. Our opinions are limited to the specific issues addressed and are
limited in all respects to laws and facts existing on the date of this
letter.
O'Sullivan, Graev & Karabell, LLP may rely upon the foregoing opinions as
to matters of Minnesota law in rendering their opinion to you of even date
herewith.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. In giving this consent, we do not admit
that we are included in the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Commission.
Best regards,
/s/ Kaplan, Strangis and Kaplan, P.A.
JCM/kmh
30D6/1
