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Registration No.33-
__________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
J. BAKER, INC.
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(Exact name of registrant as specified in its charter)
Massachusetts 04-2866591
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
555 Turnpike Street, Canton, Massachusetts 02021
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(Address of Principal Executive Offices) (Zip Code)
1994 Equity Incentive Plan
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(Full title of the plan)
ALAN I. WEINSTEIN
J. Baker, Inc.
555 Turnpike Street
Canton, Massachusetts 02021
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(Name and address of agent for service)
(617) 828-9300
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(Telephone number, including area code, of agent for service)
<TABLE>
<S> <C> <C> <C> <C>
CALCULATION OF REGISTRATION FEE
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Title of
Securities Amount to Proposed maximum Proposed maximum Amount of
to be be regis- offering price aggregate offering registration
registered tered (1) per share (2) price (2) fee
- ---------- ---------- ---------------- ----------------- -----------
Common Stock, par 1,000,000 $11.38 $11,380,000 $3,924.00
value $.50 per share
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</TABLE>
(1) The Registration Statement also covers such additional
number of shares which may be issued pursuant to the anti-dilution
adjustments under the 1994 Equity Incentive Plan. This
Registration Statement also relates to the Rights to purchase
shares of Series A Junior Participating Cumulative Preferred Stock
of the Registrant which are attached to all shares of Common Stock
outstanding as of, and issued subsequent to, January 6, 1995,
pursuant to the terms of the Registrant's Shareholder Rights
Agreement dated December 15, 1994. Until the occurrence of certain
prescribed events, the Rights are not exercisable, are evidenced by
the certificates for the Common Stock and will be transferred with
and only with such stock.
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(2) Estimated solely for the purpose of determining the amount
of the registration fee pursuant to Rule 457(c) and (h) and is
based upon the average of the high and low prices of the
registrant's Common Stock on the National Market System of the
National Association of Securities Dealers, Inc. Automated
Quotation System on June 21, 1995.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents are incorporated herein by
reference:
(a) The Company's Annual Report on Form 10-K for the Company's
fiscal year ended January 28, 1995.
(b) The Company's Quarterly Report on Form 10-Q for the
Company's fiscal quarter ended April 29, 1995.
(c) The description of the Company's Common Stock $.50 par
value, contained in the Company's Registration Statement on Form
8-A filed pursuant to Section 12(g) of the Securities Exchange
Act of 1934, as amended, dated June 2, 1986, including any
amendment or report filed for the purpose of updating such
description.
The description of the Company's Rights to purchase shares
of the Company's Series A Junior Participating Cumulative Preferred
Stock contained in the Company's Registration Statement on Form 8-A
filed pursuant to Section 12(g) of the Securities Exchange Act of
1934, as amended, dated December 15, 1994, including any amendment
or report filed for the purpose of updating such description.
All documents subsequently filed by the Company with the Securities
and Exchange Commission pursuant to Sections 13(a), (c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all
securities offered hereunder 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
a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement
contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this registration
statement.
Item 4. Description of Securities.
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Not Applicable.
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Item 5. Interests of Named Experts and Counsel.
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Not Applicable.
Item 6. Indemnification of Directors and Officers.
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As permitted by applicable Massachusetts law, Article 6A of the
Company's Restated Articles of Organization, as amended, provides,
that the Company shall indemnify, except as limited by law or
as otherwise provided in the Company's Articles of Organization,
each person who serves or has served as a director or in any other
office filled by election or appointment by the stockholders or by
the Board of Directors of the Company against all liability fixed
by a judgement, order, decree, or award in any action, suit or
proceeding, civil or criminal, brought or threatened in or before
any court, tribunal, administrative or legislative body or agency
incurred by such person in connection with each such action, suit
or proceeding in which such person is involved as a result of
serving or having served the Company in such capacity or, at the
request of the Company, as a director, officer, employer or other
agent of any other organization. No indemnification will be
provided under Article 6A to such a person with respect to a matter
as to which it shall have been adjudicated in any such action, suit
or proceeding that such person did not act in good faith in the
reasonable belief that such person's action was in the best
interests of the Company. Also, in the event that any such action,
suit or proceeding is compromised or settled so as to impose any
liability or obligation upon such person or upon the Company, no
indemnification shall be provided to such person with respect to a
matter if the Company has obtained an opinion of counsel that with
respect to such matter such person did not act in good faith in the
reasonable belief that such person's action was in the best
interests of the Company.
Article 6F of the Company's Restated Articles of Organization,
provides that no director of the Company shall be personally liable
to the Company or its stockholders for monetary damages for
breach of the Director's duty as a director notwithstanding any
provision of law imposing such liability; provided, however, that
Article 6F also states that the Article shall not eliminate or
limit any liability of a Director (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
Sections 61 or 62 of the Massachusetts Business Corporation
Law, or (iv) with respect to any transaction from which the
director derived an improper personal benefit.
Article 6F also provides that if the Massachusetts Business
Corporation law is subsequently amended to further eliminate or
limit the personal liability of directors or to authorize corporate
action to further eliminate or limit such liability, then the
liability of the directors of the company shall be eliminated
or limited to the fullest extent permitted by the Massachusetts
Business Corporation Law as so amended.
Item 7. Exemption from Registration Claimed.
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Not Applicable.
Item 8. Exhibits.
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The Exhibits listed in the accompanying Exhibit Index are
filed as part of this Registration Statement.
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Item 9. Undertakings.
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(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 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;
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)
herein do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in
periodic reports filed by the undersigned registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference 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; and
(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
of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 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 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 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
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 Canton, Commonwealth of Massachusetts, on June 23, 1995.
J. BAKER, INC.
By: /s/ Alan I. Weinstein
------------------------
Alan I. Weinstein
Senior Executive Vice President
POWER OF ATTORNEY AND SIGNATURES
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Jerry M. Socol and
Alan I. Weinstein, and each of them, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name,place and
stead, and in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
Registration Statement on Form S-8 and to file the same with all
exhibits thereto and other documents in connection therewith with
the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and
purposes as each such person might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, 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 date indicated.
Signature Title Date
- --------- ------ ------
/s/ Sherman N. Baker Chairman of the Board June 23, 1995
- ----------------------- of Directors
Sherman N. Baker
/s/ Jerry M. Socol President, Chief June 23, 1995
- ----------------------- Executive Officer and
Jerry M. Socol Director (Principal
Executive Officer)
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/s/J. Christopher Clifford Director June 23, 1995
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J. Christopher Clifford
/s/ Ervin D. Cruce Director June 23, 1995
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Ervin D. Cruce
/s/ Nancy Ryan Greenberg Director June 23, 1995
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Nancy Ryan Greenberg
/s/ Douglas J. Kahn Director June 23, 1995
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Douglas J. Kahn
/s/ David Pulver Director June 23, 1995
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David Pulver
/s/Melvin M. Rosenblatt Director June 23, 1995
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Melvin M. Rosenblatt
/s/ Stanley Simon Director June 23, 1995
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Stanley Simon
/s/ Alan I. Weinstein Senior Executive Vice June 23, 1995
- ------------------------ President, Chief
Alan I. Weinstein Administrative Officer
and Chief Financial Officer
(Principal Financial Officer)
/s/Philip G. Rosenberg First Senior Vice June 23, 1995
- ----------------------- President and Treasurer
Philip G. Rosenberg (Principal Accounting Officer)
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INDEX OF EXHIBITS
Exhibit
Number Description of Document
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4. Instruments Defining the Rights of Security Holders, including
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Indentures.
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(.01) * Senior Notes and Senior Subordinated Notes with Stock
Purchase Warrants dated May 1, 1989 (filed as Exhibit
4.01 to the Company's Form 10-Q Report for the
quarter ended July 29, 1989).
(.02) * Indenture dated as of June 12, 1992 by and between J.
Baker, Inc. and The First National Bank of Boston as
Trustee with respect to 7% Convertible Subordinated
Notes due 2002 (filed as Exhibit 4.08 to the
Company's Form 10-Q Report for the quarter ended
August 1, 1992).
(.03) * Revolving Credit and Loan Agreement by and among JBI,
Inc. et al., and Shawmut Bank, et al., dated as of
February 1, 1993 (filed as Exhibit 4.03 to the
Company's Form 10-K Report for the year ended January
30, 1993).
(.04) * Guarantee Agreement dated as of February 1, 1993,
between J. Baker, Inc., Shawmut Bank, N.A., and
subsidiaries of J. Baker, Inc. (filed as Exhibit 4.09
to the Company's Form 10-K Report for the year ended
January 30, 1993).
(.05) * Security Agreement dated as of February 1, 1993,
between JBI, Inc., J. Baker, Inc., and Shawmut Bank,
N.A. (filed as Exhibit 4.10 to the Company's Form
10-K Report for the year ended January 30, 1993).
(.06) * Stock Pledge Agreement dated as of February 1, 1993
by and between JBI, Inc., J. Baker, Inc., Shawmut
Bank, N.A., and subsidiaries of J. Baker, Inc. (filed
as Exhibit 4.11 to the Company's Form 10-K Report for
the year ended January 30, 1993).
(.07) * Indenture dated as of January 15, 1992 by and between
Morse Shoe, Inc. and State Street Bank and Trust
Company as Trustee with respect to Convertible
Subordinated Debentures due 2002 (filed as Exhibit
4.12 to the Company's Form 10-K Report for the year
ended January 30, 1993).
(.08) * First Supplemental Indenture (dated as of January 30,
1993) to the Indenture (dated January 15, 1992) under
which Convertible Subordinated Debentures Due 2002
were issued by Morse Shoe, Inc. (filed as Exhibit
4.01 to the Company's Form 10-Q Report for the
quarter ended May 1, 1993).
(.09) * First Amendment and Waiver Agreement by and among
JBI, Inc., J. Baker, Inc., and Shawmut Bank, N.A., et
al, dated as of November 19, 1993 (filed as Exhibit
4.01 to the Company's Form 10-Q Report for the
quarter ended October 30, 1993).
(.10) * Assumption Agreement by Tishkoff Enterprises, Inc.
dated as of November 19, 1993 (filed as Exhibit 4.02
to the Company's Form 10-Q Report for the quarter
ended October 30, 1993).
(.11) * First Amendment to Pledge Agreement by and among JBI,
Inc., J. Baker, Inc. and Shawmut Bank, N.A., et al,
dated as of November 19, 1993 (filed as Exhibit 4.03
to the Company's Form 10-Q Report for the quarter
ended October 30, 1993).
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Exhibit
Number Description of Document
- -------- --------------------------
(.12) * Second Amendment to Pledge Agreement by and among
JBI, Inc., J. Baker, Inc. and Shawmut Bank, N.A., et
al, dated as of December 30, 1993 (filed as Exhibit
4.14 to the Company's Form 10-K Report for the year
ended January 29, 1994).
(.13) * Second Amendment Agreement by and among JBI, Inc., J.
Baker, Inc. and Shawmut Bank, N.A., et al, dated as
of April 29, 1994 (filed as Exhibit 4.01 to the
Company's Form 10-Q Report for the quarter ended
April 30, 1994).
(.14) * Third Amendment Agreement to Revolving Credit and
Loan Agreement by and among JBI, Inc., J. Baker,
Inc., and Shawmut Bank, N.A., et al, dated December
1, 1994 (filed as Exhibit 4.01 to the Company's Form
10-Q Report for the quarter ended October 29, 1994).
(.15) * Fourth Amendment Agreement to Revolving Credit and
Loan Agreement by and among JBI, Inc., J. Baker, Inc.
and Shawmut Bank, N.A., et al, dated as of March 6,
1995 (filed as Exhibit 4.16 to the Company's Form
10-K Report for the year ended January 28, 1995).
(.16) * Fifth Amendment Agreement to Revolving Credit
Agreement by and among JBI, Inc., J. Baker, Inc. and
Shawmut Bank, N.A., et al, dated as of May 19, 1995
(filed as Exhibit 4.01 to the Company's Form 10-Q
Report for the quarter ended April 29, 1995).
(.17) * Assumption Agreement by TCMB&T, Inc. dated as of May
19, 1995 (filed as Exhibit 4.02 to the Company's Form
10-Q Report for the quarter ended April 29, 1995).
(.18) * Second Amendment to Pledge Agreement among JBI, Inc.,
et al and Shawmut Bank et al, dated as of May 19,
1995 (filed as Exhibit 4.03 to the Company's Form
10-Q Report for the quarter ended April 29, 1995).
(.19) * Shareholder Rights Agreement between J. Baker, Inc.
and Fleet National Bank, dated as of December 15,
1994 (filed as Exhibit 4.1 to the Company's Form 8-K
Report dated December 15, 1994).
5 ** Opinion and Consent of Mark T. Beaudouin, counsel to
the Company, as to the legality of the securities
being registered.
23.01 ** Consent of Mark T. Beaudouin (included in Exhibit 5).
23.02 ** Consent of KPMG Peat Marwick LLP.
24 ** Power of Attorney (included on signature page of this
Registration Statement).
99 * J. Baker, Inc. 1994 Equity Incentive Plan dated as of
March 29, 1994 (filed as Exhibit 10.23 to the
Company's Form 10-K Report for the year ended January
29, 1994).
* Incorporated herein by reference
** Filed herewith
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EXHIBIT 5
OPINION OF MARK T. BEAUDOUIN
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June 23, 1995
J. BAKER, INC.
555 Turnpike Street
Canton, MA 02021
RE: J. Baker, Inc.
1994 Equity Incentive Plan
Gentlemen:
This opinion is furnished in connection with the
registration, pursuant to the Securities Act of 1933 (the "Act"),
of 1,000,000 shares (the "Shares") of the Common Stock, par value
$0.50 per share (the "Common Stock"), of J. Baker, Inc. (the
"Company") which may be issued under the J. Baker, Inc. 1994 Equity
Incentive Plan.
I have acted as counsel to the Company in connection with
the registration of the Shares under the Act. I have examined the
Restated Articles of Organization and the By-Laws of the Company,
each as amended to date; such records of proceedings of the Company
as I deemed material; a Registration Statement on Form S-8 under
the Act relating to the Shares (the "Registration Statement"); and
such other certificates, records and documents as I have considered
necessary for the purposes of this opinion.
Based upon the foregoing, I am of the opinion that upon the
issuance and delivery of the Shares in accordance with the terms of
the Registration Statement and the Plan, the Shares will be legally
issued, fully paid and non-assessable shares of the Company's
Common Stock.
The foregoing assumes that all requisite steps will be taken
to comply with the requirements of the Act, applicable requirements
of state laws regulating the offer and sale of securities and
applicable requirements of the National Association of Securities
Dealers, Inc.
I understand that this opinion is to be used in connection
with the Registration Statement. I consent to the filing of a copy
of this opinion with the Registration Statement.
Very truly yours,
/s/ Mark T. Beaudouin
----------------------
Mark T. Beaudouin
General Counsel
MTB/ec
FormS8/opinion
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EXHIBIT 23.01
CONSENT OF MARK T. BEAUDOUIN
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Included in Exhibit 5
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EXHIBIT 23.02
CONSENT OF KPMG PEAT MARWICK LLP
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CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
J. Baker, Inc.
We consent to the incorporation by reference in this Registration
Statement on Form S-8 relating to the J. Baker, Inc. 1994 Equity
Incentive Plan of our report dated March 10, 1995 relating to the
consolidated balance sheets of J. Baker, Inc. and subsidiaries
as of January 28, 1995 and January 29, 1994 and the related
consolidated statements of earnings, changes in stockholders'
equity and cash flows for each of the years in the three-year
period ended January 28, 1995 which report is included in the
Company's Annual Report of Form 10-K filed pursuant to the
Securities Exchange Act of 1934 for the year ended January 28,
1995.
KPMG PEAT MARWICK LLP
Boston, Massachusetts
June 23, 1995
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EXHIBIT 24
POWER OF ATTORNEY
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Included on signature page of this Registration Statement.
