Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Bailey Corporation
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(Exact name of issuer as specified in its charter)
Delaware 13-3229215
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
700 Lafayette Road, P.O. Box 307, Seabrook, New Hampshire 03874
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(Address of principal executive offices) (Zip Code)
LETTER AGREEMENTS BETWEEN THE REGISTRANT AND CERTAIN INDIVIDUALS DATED OCTOBER
6, 1995 (63 SEPARATE EMPLOYEE BENEFIT PLANS)
LETTER AGREEMENT BETWEEN THE REGISTRANT AND ROBERT DUTEAU DATED NOVEMBER 14,1995
LETTER AGREEMENT BETWEEN THE REGISTRANT AND JON SCHOPF DATED NOVEMBER 23, 1995
LETTER AGREEMENT BETWEEN THE REGISTRANT AND ANTHONY A. MARTINO DATED JANUARY 12,
1996
(Full title of the plans)
Roger R. Phillips
President and Chief Executive Officer
Bailey Corporation
700 Lafayette Road, P.O. Box 307
Seabrook, New Hampshire 03874
(603) 474-3011
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(Name and address, including zip code, and
telephone number, including area code, of agent for service)
WITH A COPY TO:
David A. Broadwin, Esquire
Foley, Hoag & Eliot
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
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CALCULATION OF REGISTRATION FEE
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Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Per Share Price Fee
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Common Stock 536,600 $4.76 (2) $2,554,216 (2) $881 (2)
(par value $0.10) shares(1)
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(1) Represents shares issuable upon exercise of stock options granted to
certain employees of and consultants to the Registrant pursuant to the
above listed letter agreements between the Registrant and such
employees and consultants.
(2) Calculated pursuant to Rule 457(h) based on the exercise price of such
options outstanding at June 20, 1996.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated in this Registration Statement by
reference:
(a) the Company's Annual Report on Form 10-K for the year ended July
30, 1995, File No. 1-9411;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
October 29, 1995, File No. 1-9411;
(c) the Company's Quarterly Report on Form 10-Q for the quarter ended
January 28, 1996, file No. 1-9411;
(d) the Company's Quarterly Report on Form 10-Q for the quarter ended
April 28, 1996, file No. 1-9411;
(e) the Company's Current Report on Form 8-K filed with the
Commission on June 20, 1996;
(f) the Company's Current Report on Form 8-K filed with the
Commission on October 2, 1995;
(g) the Company's Registration Statement on Form 8-A filed with the
Commission on October 2, 1995, as amended by Amendment No. 1 on Form 8-A/A filed
with the Commission on June 20, 1996; and
(h) the description of the Company's Common Stock contained in the
Registration Statement on Form 8-A dated February 5, 1987, filed under Section
12 of the Securities Exchange Act of 1934, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities registered hereby is being passed upon
for the Company by Foley, Hoag & Eliot LLP, Boston, Massachusetts.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that any
person made a party, or threatened to be made a party, to any threatened,
pending or completed action by reason of the fact that he is or was a director,
officer, employee or agent of the Company may and, in certain cases, must be
indemnified by the Company against, in the case of a non-derivative action,
judgments, fines, amounts paid in settlement and expenses (including attorney's
fees) reasonably incurred by him as a result of such action, and in the case of
a derivative action, against reasonable expenses (including attorneys' fees), if
in either type of action he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company. This
indemnification does not apply, in the case of derivative actions, to matters as
to which it is adjudged that the director, officer, employee or agent is liable
to the Company, unless upon court order it is determined that, despite such
adjudication of liability, but in view of all the circumstances of the case, he
is fairly and reasonably entitled to indemnity for expenses; and in the case of
non-derivative actions, to any criminal proceeding in which the director,
officer, employee or agent had reasonable cause to believe his conduct was
unlawful.
Article Ninth, Section 1 of the Registrant's Amended Certificate of
Incorporation in effect provides that the Registrant shall indemnify each person
whom it has the power to indemnify under Section 145 of the Delaware General
Corporation Law to the fullest extent permitted by said section.
Article Ninth, Section 2 of the Registrant's Amended Certificate of
Incorporation provides that, to the fullest extent permitted by the Delaware
Corporation Law, no director of the Registrant shall be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director, except (i) for any breach of the duty of loyalty to the
Registrant or to its stockholders; (ii) for acts or omissions not
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in good faith or which involve intentional misconduct or knowing violation of
law, (iii) for any transaction from which the director derived an improper
personal benefit and (iv) liability under Section 174 of the Delaware
Corporation Law relating to certain unlawful dividends and stock purchases and
redemptions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Counsel
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature
page)
ITEM 9. UNDERTAKINGS.
1. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
2. The undersigned Registrant hereby undertakes:
(a) 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;
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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 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 2 (a)(1)(i) and 2 (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
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference herein.
(b) 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 herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) 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.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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
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
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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.
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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 Seabrook, New Hampshire, on this 20th day of June,
1996.
BAILEY CORPORATION
By:/s/Roger R. Phillips
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Roger R. Phillips
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Roger R. Phillips, Leonard J. Heilman and
David A. Broadwin, and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing which he may deem necessary or advisable to be done in
connection with this Registration Statement, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or any substitute or
substitutes for any or all of them, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/Roger R. Phillips Chairman of the June 20, 1996
- -------------------- Board, President,
Roger R. Phillips Chief Executive
Officer and
Secretary (Principal
Executive Officer)
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/s/Leonard J. Heilman Executive Vice President June 20, 1996
- --------------------- Finance and Administra-
Leonard J. Heilman tion, Treasurer and
Assistant Secretary
(Principal Financial
and Accounting Officer)
/s/E. Gordon Young Director June 20, 1996
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E. Gordon Young
/s/Louis T. Enos Director June 20, 1996
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Louis T. Enos
/s/Allan B. Freedman Director June 20, 1996
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Allan B. Freedman
/s/John G. Owens Director June 20, 1996
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John G. Owens
/s/William A. Taylor Director June 20, 1996
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William A. Taylor
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EXHIBIT INDEX
Exhibit
No. Description Page
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5.1 Opinion of Counsel
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature
page)
[LETTERHEAD OF FOLEY, HOAG & ELIOT]
June 20, 1996
Bailey Corporation
700 Lafayette Road
P.O. Box 307
Seabrook, NH 03874
Ladies and Gentlemen:
We are familiar with the Registration Statement on Form S-8 (the "S-8
Registration Statement") filed today by Bailey Corporation, a Delaware
corporation (the "Company"), with the Securities and Exchange Commission under
the Securities Act of 1933, as amended. The S-8 Registration Statement relates
to the proposed offering by the Company of 536,600 shares (the "Shares") of its
Common Stock, $0.10 par value per share ("Common Stock"), issuable pursuant to
the Letter Agreements between the Company and certain employees of and
consultants to the Company (the "Letter Agreements").
In arriving at the opinion expressed below, we have examined and relied
on the following documents:
1. The Amended Certificate of Incorporation and the Amended and
Restated By-Laws of the Company.
2. The records of meetings and consents of the Board of Directors
and stockholders of the Company provided to us by the Company.
3. The Letter Agreements.
In addition, we have examined and relied on the originals or copies certified or
otherwise identified to our satisfaction of all such corporate records of the
Company and such other instruments and other certificates of public officials,
officers and representatives of the Company and such other persons, and we have
made such investigations of law, as we have deemed appropriate as a basis for
the opinion expressed below.
Bailey Corporation
June 20, 1996
Page 2
Based upon the foregoing, it is our opinion that:
1. The Company has corporate power adequate for the issuance of the
Shares in accordance with the S-8 Registration Statement.
2. The Company has taken all necessary corporate action required to
authorize the issuance and sale of the Shares.
3. When certificates for the Shares have been duly executed and
counter-signed, and delivered against due receipt of the exercise price for the
Shares as described in the Letter Agreements, the Shares will be legally-issued,
fully-paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
S-8 Registration Statement.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By:/s/ David A. Broadwin
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a partner
[LETTERHEAD OF KPMG PEAT MARWICK LLP]
Exhibit 23.1
The Board of Directors
Bailey Corporation
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the registration
statement on Form S-8.
KPMG Peat Marwick LLP
Boston, Massachusetts
June 19, 1996
