As filed with the Securities and Exchange Commission on February 11, 1998
Registration No. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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JAY JACOBS, INC.
(Exact name of registrant as specified in its charter)
-------------------
Washington 91-0698077
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1530 Fifth Avenue
Seattle, Washington 98101
(206) 622-5400
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
-------------------
William L. Lawrence, Jr.
Executive Vice President, Chief Financial Officer
Jay Jacobs, Inc.
1530 Fifth Avenue
Seattle, Washington 98101
(206) 622-5400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
It is respectfully requested that the Commission send copies of all
notices, orders and communications to:
Lee J. Brunz
Stoel Rives LLP
One Union Square
600 University Street, Suite 3600
Seattle, Washington 98101-3197
(206) 624-0900
-------------------
Approximate date of commencement of proposed sale to the public: As
promptly as practicable after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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, other than securities offered only in connection with dividend or interest
reinvestment plans, 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 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. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================================================
Proposed Proposed
maximum maximum
Title of each class of Amount to be offering price aggregate Amount of
securities to be registered registered per share(1) offering price(1) registration fee
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value(2) 56,637,970 $0.47 $26,619,846.00 $7,853
============================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based upon
the average high and low prices on February 9, 1998 as reported on the NASDAQ
Bulletin Board.
(2) Consists of Common Stock issuable on conversion of Series B Preferred Stock.
The Registrant also registers hereby such additional shares of Common Stock or
other securities as may be issuable upon such conversion pursuant to the
anti-dilution provisions of the Series B Preferred Stock.
</TABLE>
-------------------
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 the Registration Statement
shall become effective on such a date as the Commission, acting pursuant to said
Section 8(a), may determine.
================================================================================
<PAGE>
PROSPECTUS
JAY JACOBS, INC.
56,637,970 Shares of Common Stock
($0.01 par value)
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The shares of Common Stock of Jay Jacobs, Inc. (the "Company") offered
hereby (the "Shares") are issuable on conversion of Series B Preferred Stock of
the Company and may be offered and sold from time to time by the holders thereof
(the "Selling Shareholders"). The Company will not receive any of the proceeds
from any such offers or sales of Shares.
The Common Stock of the Company is traded on the NASDAQ Bulletin Board
under the symbol JAYJ. On February 9, 1998, the last price for the Common Stock
was $0.47 per share.
The Shares may be offered or sold from time to time by the Selling
Shareholders at market prices then prevailing, in negotiated transactions or
otherwise. Brokers or dealers will receive commissions or discounts from the
Selling Shareholders in amounts to be negotiated immediately prior to the sale.
See "PLAN OF DISTRIBUTION."
--------------
No person has been authorized to give any information or to make any
representations in connection with this offering other than those contained in
this Prospectus. This Prospectus does not constitute an offering in any
jurisdiction in which such offering may not lawfully be made.
--------------
Neither the delivery of this Prospectus nor any sale made hereunder shall,
under any circumstances, create any implication that there has been no change in
the affairs of the Company since the respective dates as to which information
has been given herein.
--------------
The date of this Prospectus is February 11, 1998.
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, and, if given or
made, such information or representations must not be relied upon as having been
authorized. This Prospectus does not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the securities to
which it relates or an offer to sell or the solicitation of an offer to buy such
securities in any circumstances in which such offer or solicitation is unlawful.
Neither the delivery of this Prospectus nor any sale made hereunder shall, under
any circumstances, create any implication that there has been no change in the
affairs at the Company since the date hereof or that the information contained
herein is correct as of any time subsequent to its date.
AVAILABLE INFORMATION
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the securities offered pursuant to this Prospectus. For further
information, reference is made to the Registration Statement and the exhibits
thereto. In addition, the Company is subject to the informational requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files periodic reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). The
Registration Statement, reports and other information may be inspected and
copies may be obtained at the Commission's Public Reference Section, Judiciary
Plaza, 450 Fifth Street, NW, Washington, D.C. 20549, as well as the following
regional offices: 7 World Trade Center, New York, New York 10048 and 500 West
Madison Street, Chicago, Illinois 60661. The Commission maintains a Website that
contains reports, proxy and information statements and other information
regarding reporting companies under the Exchange Act, including the Company, at
http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the Commission
pursuant to the Exchange Act are incorporated in this Prospectus by reference:
(a) the Company's Annual Report on Form 10-K for the year ended February 1,
1997, Amendment No. 1 thereto on Form 10-K/A filed June 17, 1997; (b) the
Company's Quarterly Reports on Form 10-Q for the quarters ended May 3, and
August 2, Amendment No. 1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended November 1, 1997 on Form 10-Q/A filed January 20, 1998; and (c)
the Company's Current Reports on Form 8-K filed November 20, 1997 and December
15, 1997. In addition, all reports and other documents filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this Prospectus and prior to the termination of the offering (the
"Offering") shall be deemed to be incorporated by reference in this Prospectus
and to be a part hereof from the date of filing of such documents (such
documents, and the documents enumerated above, being hereinafter referred to as
"Incorporated Documents"). Any statement contained in an Incorporated Document
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such
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<PAGE>
statement. Any such statement shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, including any beneficial
owner, on the written or oral request of any such person, a copy of any or all
of the Incorporated Documents, other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference therein. Requests
should be directed to Jay Jacobs, Inc., 1530 Fifth Avenue, Seattle, Washington
98101 Attention: William L. Lawrence, Jr., Executive Vice President and Chief
Financial Officer (telephone number (206) 622-5400).
This Prospectus constitutes a part of the Registration Statement on Form
S-3 filed by the Company with the Commission under the Securities Act. This
Prospectus omits certain of the information contained in the Registration
Statement, and reference is hereby made to the Registration Statement and to the
exhibits relating thereto for further information with respect to the Company
and the Common Stock. Any statements contained herein concerning the provisions
of any documents are not necessarily complete, and reference is made to the copy
of such document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in its entirety by
such reference. The information relating to the Company contained in this
Prospectus should be read together with the information contained in the
Incorporated Documents.
THE COMPANY
The Company was incorporated in Washington in 1959. The Company's principal
executive offices are located at 1530 Fifth Avenue, Seattle, Washington 98101,
and its telephone number is (206) 622-5400. References in this Prospectus to the
Company mean Jay Jacobs, Inc., including its subsidiary, unless the context
requires otherwise.
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<PAGE>
SELLING SHAREHOLDERS
The Selling Shareholders are the holders of Series B Preferred Stock of the
Company. The Shares are obtainable on conversion of the Series B Preferred
Stock. The Selling Shareholders acquired the Series B Preferred Stock from the
Company for cash on December 5, 1997. The following table sets forth certain
information regarding ownership of the Shares as of January 31, 1998 and the
number of Shares that may be offered for the account of the Selling Shareholders
or their transferees or distributees from time to time.
<TABLE>
<CAPTION>
Shares Beneficially Shares Beneficially
Owned Before Offering (1) Owned After Offering (1)
-------------------------- -------------------------
Number of Shares Offered Number
Name Shares Percent(2) for Sale of Shares Percent(2)
---- --------- ---------- -------------- --------- ----------
<S> <C> <C> <C> <C> <C>
Cahill, Warnock Strategic 34,014,499 52.4 34,014,499 -0- -0-
Partners Fund, L.P.
Strategic Associates, L.P. 1,882,646 2.9 1,882,646 -0- -0-
T. Rowe Price Recovery 19,943,362 30.8 19,943,362 -0- -0-
Fund II, L.P.
Michael D. Sullivan 797,463 1.2 797,463 -0- -0-
- --------------
(1) Each Selling Shareholder is deemed to beneficially own the shares of Common
Stock into which the Series B Preferred held by it is convertible.
(2) Total shares of Common Stock outstanding for the purpose of this percentage
calculation includes the Common Stock into which the Series B Preferred Stock is
convertible but does not include 15,261,448 shares of Common Stock issuable on
exercise of outstanding options (14,651,694 of which have been issued subject to
shareholder approval of the Company's 1998 Stock Incentive Plan, which approval
is expected to be granted in March 1998) or an additional 2,815,063 shares of
Common Stock issuable on exercise of options that may be granted under the
Company's 1998 Stock Incentive Plan.
</TABLE>
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Shareholders or by
pledgees, donees, transferees or other successors in interest. Such sales may be
made in the over-the-counter market or otherwise at prices and at terms then
prevailing or at prices related to the then current market price, or in
negotiated transactions. The Shares may be sold by one or more of the following
methods: (a) block trades in which the broker or dealer so engaged will attempt
to sell the Shares as agent but may position and resell a portion of the block
as principal to facilitate the transaction; (b) purchases by a broker or dealer
as principal, in a market maker
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<PAGE>
capacity or otherwise, and resale by such broker or dealer for its account
pursuant to this Prospectus; and (c) ordinary brokerage transactions and
transactions in which the broker solicits purchasers. In effecting sales,
brokers or dealers engaged by the Selling Shareholders may arrange for other
brokers or dealers to participate. Brokers or dealers will receive commissions
or discounts from the Selling Shareholder in amounts to be negotiated
immediately prior to the sale. The Selling Shareholders, such brokers or
dealers, and any other participating brokers or dealers may be deemed to be
"underwriters" within the meaning of the Securities Act in connection with such
sales.
Upon the Company being notified by the any of the Selling Shareholders that
any material arrangement has been entered into with a broker or dealer for the
sale of Shares through a block trade or any other purchase by a broker or dealer
as principal, other than a purchase as a market maker in an ordinary trading
transaction, a supplemented prospectus will be filed, if required, pursuant to
Rule 424 under the Act, disclosing (i) the name of such Selling Shareholder and
of the participating brokers or dealers, (ii) the number of Shares involved,
(iii) the price at which such Shares will be sold, (iv) the commission paid or
discounts or concessions allowed to such brokers or dealers, where applicable,
(v) that such brokers or dealers did not conduct any investigation to verify the
information set out or incorporated by reference in this Prospectus, and (vi)
other facts material to the transaction.
DESCRIPTION OF SECURITIES TO BE REGISTERED
The authorized capital stock of the Company consists of 20,000,000 shares
of Common Stock, $0.01 par value, and 5,000,000 shares of Preferred Stock, $.01
par value. As of January 31, 1998, there were 8,216,576 shares of Common Stock
issued and outstanding. Holders of Common Stock are entitled to one vote per
share on all matters submitted to a vote of shareholders. Holders of Common
Stock also are entitled to receive ratably such dividends as may be declared by
the Board of Directors out of funds legally available therefor, subject to
preferences that may be applicable to any outstanding Preferred Stock. In the
event of the liquidation, dissolution or winding up of the Company, holders of
Common Stock are entitled to share ratably in all assets remaining after payment
of liabilities and the liquidation preference of any outstanding Preferred
Stock. Holders of Common Stock have no preemptive, subscription, redemption or
conversion rights. All the outstanding shares of Common Stock are, and all
shares of Common Stock to be outstanding upon completion of this offering will
be, fully paid and nonassessable.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-K for the year ended February 1, 1997, have been so
incorporated in reliance on the report of Price Waterhouse LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
5
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
All expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts and commissions,
will be paid by the Company. Such expenses are estimated as follows:
Registration fee.................................. $ 7,853
Legal fees and expenses........................... $ 5,000
Accounting fees and expenses...................... $ 1,000
-------
Miscellaneous.................................... $ 147
-------
Total.......................................... $14,000
=======
Item 15. Indemnification of Officers and Directors
Article XII of the Company's Restated Articles of Incorporation ("Restated
Articles") provides that directors of the Company shall not be personally liable
to the Company or its shareholders for monetary damages for his or her acts or
omissions as a director except for acts or omissions that involve intentional
misconduct or a knowing violation of law by the director, for conduct violating
Section 23A.08.450 of the Revised Code of Washington, or for any transaction
from which the director will personally receive a benefit in money, property or
services to which the director is not legally entitled. The Restated Articles
further provide that, if the Washington Business Corporation Act is amended
after the date on which the Restated Articles were approved by the shareholders
of the Company to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of directors of the Company
shall be eliminated or limited to the fullest extent permitted by the Washington
Business Corporation Act, as so amended. No such amendment to the Washington
Business Corporation Act has been enacted. No amendment or repeal of the
above-described provisions shall adversely affect any right or protection of a
director of the Company as to acts or omissions occurring prior to the amendment
or repeal.
Article IX of the Company's bylaws requires the Company to indemnify to the
full extent permitted by applicable law each current and former officer and each
current and former director of the Company if that person is made a party, or
threatened to be made a party, or is involved in, any actual or threatened legal
action, including as a witness, by reason of the fact that he or she is or was a
director or officer of the Company or, at the request of the Company, of another
corporation or other legal entity, provided that, with respect to any legal
action initiated by the indemnified person, the Company's obligation to
indemnify exists only if such legal action was approved by the Board of
Directors. Persons indemnified under this provision are entitled to
reimbursement of defense costs prior to final disposition of the matter only if
such person
II-1
<PAGE>
provides the Company with an undertaking to repay all amounts so advanced if it
is ultimately determined that such person was not entitled to such indemnity.
Insofar as indemnification for liabilities arising under the Securities Act
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 Commission such indemnification is against public
policy and expressed in the Securities Act and is, therefore, unenforceable.
Item 16. Exhibits
4.1 Restated Articles of Incorporation of the Company. Incorporated by
reference to the Company's Registration Statement on Form S-1,
declared effective May 19, 1987 (Registration No. 33-13112).
4.2 Amended and Restated Bylaws of the Company. Incorporated by reference
to the Company's Registration Statement on Form S-1, declared
effective May 19, 1987 (Registration No. 33-13112).
5.1 Opinion of Stoel Rives LLP.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Stoel Rives LLP (included in Exhibit 5).
24.1 Powers of Attorney (included in this Registration Statement).
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended (the
"Securities Act"), each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") 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.
(b) 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 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 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
II-2
<PAGE>
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 Securities Act and will be governed by
the final adjudication of such issue.
(c) The undersigned registrant hereby undertakes that:
(1) For the 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 the
registration statement as of the time it was declared effective.
(2) For the purposes of determining any liability under the Securities
Act of 1933, 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 the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
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<PAGE>
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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Seattle, State of Washington, on February 11, 1998.
JAY JACOBS, INC.
By WILLIAM L. LAWRENCE, JR.
--------------------------------------
William L. Lawrence, Jr.
Executive Vice President and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Rex Loren Steffey or William J. Lawrence,
Jr. or either of them, his true and lawful attorneys-in-fact and agents, each
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any amendments (whether
pre-effective or post-effective) to this Registration Statement, and to file the
same with all exhibits thereto and other documents in connection therewith with
the Securities and Exchange Commission, granting unto each of 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 he might or could do in
person, hereby ratifying and confirming all that each of said attorneys-in-fact
and agents, or their substitute or substitutes, may do or cause to be done by
virtue hereof.
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on
February 11, 1998 in the capacities indicated.
Signature Title
--------- -----
REX L. STEFFEY
- ---------------------------------- President and Chief Executive
Rex L. Steffey Officer (Principal Executive Officer) and
Director
WILLIAM L. LAWRENCE, JR. Executive Vice President and Chief
- ---------------------------------- Financial Officer (Principal Financial
William L. Lawrence, Jr. and Accounting Officer) and Director
MICHAEL D. SULLIVAN Chairman of the Board
- ----------------------------------
Michael D. Sullivan
EDWARD L. CAHILL Director
- ----------------------------------
Edward L. Cahill
KIM Z. GOLDEN Director
- ----------------------------------
Kim Z. Golden
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<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
- ------- -----------
4.1 Restated Articles of Incorporation of the Company.(1)
4.2 Amended and Restated Bylaws of the Company.(1)
5.1 Opinion of Stoel Rives LLP(2)
23.1 Consent of Price Waterhouse LLP(2)
23.2 Consent of Stoel Rives LLP (Included in Exhibit 5.1)(2)
24.1 Powers of Attorney(2)
- --------------
(1) Incorporated by reference to the Company's Registration Statement on Form
S-1, declared effective May 19, 1987 (Registration No. 33-13112).
(2) Included in this Registration Statement.
II-6
Exhibit 5.1
[Stoel Rives Letterhead]
February 11, 1998
Board of Directors
Jay Jacobs, Inc.
1530 Fifth Avenue
Seattle, Washington 98101
Gentlemen:
We have acted as counsel to Jay Jacobs, Inc. (the "Company") in connection
with the filing of a Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended, relating to the
issuance of up to 56,637,970 shares of Common Stock (the "Shares"), which are
issuable upon conversion of the Company's Series B Preferred Stock, issued by
the Company in December, 1997 (the "Series B Stock"). We have reviewed the
corporate actions of the Company in connection with this matter, and we have
examined such corporate records and other documents as we deemed necessary for
the purposes of this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of Washington.
2. The Shares have been duly reserved for issuance upon conversion of the
Series B Stock, and when issued upon such conversion in accordance
with the terms of the Series B Preferred Stock and in accordance with
the terms of the Company's Articles of Incorporation and Bylaws, the
Shares will be validly issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ STOEL RIVES LLP
II-8
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
April 25, 1997, appearing on page 16 of Jay Jacobs, Inc.'s Annual Report on Form
10-K for the year ended February 1, 1997. We also consent to the incorporation
by reference of our report on the Financial Statement Schedule, which appears on
page 38 of such Annual Report on Form 10-K. We also consent to the reference to
us under the heading "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
Seattle, Washington
February 11, 1998
