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Registration No. 333-
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As filed with the Securities and Exchange Commission on July 17, 1998
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement
Under
The Securities Act of 1933
ADVANCED MARKETING SERVICES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 95-3768341-9
- ------------------------------- ------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
5880 Oberlin Drive, Suite 400, San Diego, California 92121
- ---------------------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
1995 Stock Option Plan
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(Full title of the plan)
Charles C. Tillinghast, III
Advanced Marketing Services, Inc.
5880 Oberlin Drive, Suite 400, San Diego, California 92121
(619) 457-2500
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(Name, address and telephone number of agent for service)
Copy to: Theodore H. Latty, Esq.
Hughes Hubbard & Reed LLP
350 South Grand Avenue
Los Angeles, California 90071-3442
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of
Securities Amount Proposed Maximum Proposed Amount of
to be to be Offering Price Maximum Aggregate Registration
Registered Registered* Per Share** Offering Price** Fee
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value 250,000 shares $18.00 $4,500,000 $1,364.00
$.001 per share
- ----------------------------------------------------------------------------------------------------
</TABLE>
* This Registration Statement also relates to such indeterminate number
of additional shares as may be issuable pursuant to stock splits, stock
dividends, or similar transactions.
** The proposed maximum offering price per share of Common Stock and the
proposed maximum aggregate offering price are calculated solely for the
purpose of determining the registration fee pursuant to Rule 457(h)
under the Securities Act of 1933. With respect to 125,000 shares of
Common Stock as to which stock options were granted prior to the date
hereof, the registration fee is based on the exercise price per share
of $14.66; and with respect to the balance of the shares being
registered (consisting of 125,000 shares of Common Stock), the fee is
based on a price of $18.00 per share, which is the average of the high
and low sale prices of the Common Stock on July 14, 1998, as quoted on
the Nasdaq National Market.
Securities offered and sold under the plan which is the subject of this
Registration Statement were also registered by means of a Registration
Statement on Form S-8, No. 333-01155, filed with the Securities and
Exchange Commission on February 22, 1996 (the "Prior Registration
Statement"). Prospectus documents used in connection with this
Registration Statement will also apply with respect to the Prior
Registration Statement. The number of unused shares registered under
the Prior Registration Statement is 400,000, and the registration fee
associated with such shares was $1,595.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Advanced Marketing Services,
Inc. (the "Company") under the Securities Exchange Act of 1934 (the "Exchange
Act") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1998;
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since March 31, 1998; and
(c) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A, filed pursuant to
Section 12 of the Exchange Act, and any amendment or report filed for
the purpose of updating such description, including without limitation
the information set forth under Item 5 of the Company's Report on Form
8-K dated July 25, 1991, filed under Section 13 of the Exchange Act.
All 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 Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby 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 the filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Under its Certificate of Incorporation and Bylaws, the Company is
required to indemnify its directors and officers to the fullest extent
authorized by Delaware law. Section 145 of the General Corporation Law of the
State of Delaware (the "Delaware GCL") currently
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permits indemnification of a corporate officer or director against expenses and
other liabilities if 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, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful; provided, however, that if the action or proceeding is
by or in the right of the Company, indemnification shall not be made in respect
of any claim, issue or matter as to which the officer or director shall have
been found liable to the Company unless and only to the extent that the court in
which such action was brought determines that, in view of all the circumstances
of the case, the person is fairly and reasonably entitled to indemnity for such
expenses (but not other liabilities) as the court shall deem proper. To the
extent that a person is successful on the merits or otherwise in defense of
certain actions, the Delaware GCL requires the Company to indemnify the person
for his actual and reasonable expenses incurred in connection with such defense.
Under the Delaware GCL and the Bylaws, the Company may advance expenses of such
a person in defending an action, provided that such advancement of expenses may
be made only if the person provides an undertaking to reimburse the Company if
it is ultimately determined that the person is not entitled to be indemnified
against such expenses. Consistent with such statutory provisions, the Company
generally enters into written indemnity agreements with its executive officers
and directors.
In certain circumstances, certain provisions of the General
Corporation Law of the State of California (the "California GCL"), including
provisions relating to the indemnification of officers and directors, may be
applicable to the affairs of the Company to the exclusion of the Delaware GCL.
In such event, the Company's Certificate of Incorporation and Bylaws require the
Company to indemnify its directors and officers to the fullest extent permitted
by California law. The requirements of the California GCL relating to the
indemnification of officers and directors are similar in material respects to
the requirements of Delaware law described above.
The provisions of the Delaware GCL and the California GCL
relating to the indemnification of directors and officers are sufficiently broad
to permit the indemnification of such persons in certain circumstances against
liabilities (including reimbursement of expenses incurred) arising under the
Securities Act of 1933 (the "Securities Act").
The plan to which this Registration Statement relates requires
the Company to indemnify its directors against liabilities, costs and expenses
which may be incurred in connection with the administration of the plan, other
than liabilities, costs and expenses that result from negligence, bad faith,
willful misconduct or criminal acts of such directors.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits
<TABLE>
<CAPTION>
Number Description Method of Filing
- ------ ----------- ----------------
<S> <C> <C>
4.1 Certificate of Incorporation, as Incorporated by reference from the
amended, of the Company Company's Report on Form 8-K for July
25, 1991, filed October 18, 1991
4.2 Bylaws, as amended, of the Company Incorporated by reference from the
Company's Report on Form 8-K for July
25, 1991, filed October 18, 1991
4.3 1995 Stock Option Plan, as amended Filed herewith
5.1 Opinion of Hughes Hubbard & Reed LLP Filed herewith
23.1 Consent of Arthur Andersen LLP Filed herewith
23.2 Consent of Hughes Hubbard & Reed LLP Contained in Exhibit 5.1
24.1 Powers of Attorney Filed herewith
</TABLE>
Item 9. Undertakings
(a) The Company 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, represents a fundamental change in the information set
forth in the 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.
Provided, however, that paragraphs (a)(1)(i) and (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 by the Company
pursuant to Section 13 or Section 15(d) of the
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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.
(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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company'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 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
Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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
THE REGISTRANT. 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 San Diego, State of California, on
this 17th day of July, 1998.
ADVANCED MARKETING SERVICES, INC.
By: /s/ Charles C. Tillinghast, III
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Charles C. Tillinghast, III
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on this 17th day of July, 1998.
<TABLE>
<CAPTION>
Signature Capacity
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<S> <C>
* Chairman of the Board and Director
- -------------------------------------
Charles C. Tillinghast, III
* Chief Executive Officer and Director
- ------------------------------------- (principal executive, financial, and
Michael M. Nicita accounting officer)
* Director
- -------------------------------------
Loren C. Paulsen
* Director
- -------------------------------------
Robert F. Bartlett
</TABLE>
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<TABLE>
<CAPTION>
Signature Capacity
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<S> <C>
* Director
- -------------------------------------
Lynn S. Dawson
* Director
- -------------------------------------
James A. Leidich
* Director
- -------------------------------------
Trygve E. Myhren
* Director
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E. William Swanson
* By: /s/ Charles C. Tillinghast, III,
-------------------------------------
for himself and as authorized by
Power of Attorney filed as
Exhibit 24.1 to this Registration
Statement
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Description Method of Filing Page
- ------ ----------- ---------------- ----
<S> <C> <C> <C>
4.1 Certificate of Incorporation, Incorporated by reference from the --
as amended, of the Company Company's Report on Form 8-K for July
25, 1991, filed October 18, 1991
4.2 Bylaws, as amended, of the Incorporated by reference from the --
Company Company's Report on Form 8-K for July
25, 1991, filed October 18, 1991
4.3 1995 Stock Option Plan, as Filed herewith 10
amended
5.1 Opinion of Hughes Hubbard & Filed herewith 20
Reed LLP
23.1 Consent of Arthur Andersen LLP Filed herewith 22
23.2 Consent of Hughes Hubbard & Contained in Exhibit 5.1 --
Reed LLP
24.1 Powers of Attorney Filed herewith 23
</TABLE>
<PAGE> 1
Exhibit 4.3
ADVANCED MARKETING SERVICES, INC.
1995 STOCK OPTION PLAN
1. PURPOSE
The purpose of the Advanced Marketing Services, Inc. 1995 Stock Option
Plan (the "Plan") is to further the interests of Advanced Marketing Services,
Inc. (the "Company") and its Subsidiaries by strengthening the desire of
employees to continue their employment with the Company and its Subsidiaries and
by inducing individuals to become employees of the Company and its Subsidiaries
through stock options to be granted hereunder. Options granted under the Plan
are either options intending to qualify as "incentive stock options" within the
meaning of Section 422 of the Code or non-qualified stock options.
2. DEFINITIONS
Whenever used herein the following terms shall have the following
meanings, respectively:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder.
(c) "Committee" shall mean the Stock Option or Compensation Committee
appointed by the Board of Directors of the Company, or if no committee has been
appointed, reference to "Committee" shall be deemed to refer to the Board of
Directors of the Company.
(d) "Common Stock" shall mean the Company's Common Stock, $.001 par
value, as described in the Company's Articles of Incorporation, as amended.
(e) "Company" shall mean Advanced Marketing Services, Inc., a California
corporation, or any successor by merger which agrees to assume the Plan.
(f) "Employee" shall mean in connection with Non-Qualified Options, any
director, officer or employee of the Company or any Subsidiary or Parent
Corporation of the Company, it being understood that the Committee may in its
discretion also grant Options to induce individuals to become and remain as
Employees and that such persons, for purposes of receiving Non-Qualified Options
hereunder, shall be deemed "Employees." In connection with Incentive Options
under this Plan, "Employee" shall mean only employees of the Company or any
Subsidiary or Parent Corporation of the Company.
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(g) "Fair Market Value Per Share" of the Company's Common Stock on any
date shall mean if the Company's Common Stock is publicly traded the mean
between the highest and lowest quoted selling prices of the Common Stock on such
date or, if not available, the mean between the bona fide bid and asked prices
of the Common Stock on such date. In any situation not covered above or if there
were no sales on the date in question, the Fair Market Value Per Share shall be
determined by the Committee in accordance with Section 20.2031- 2 of the Federal
Estate Tax Regulations.
(h) "Incentive Option" shall mean an Option granted under the Plan which
is designated as and qualified as an incentive stock option within the meaning
of Section 422 of the Code.
(i) "Non-Qualified Option" shall mean an Option granted under the Plan
which does not qualify as, or is not designated as, an incentive stock option
within the meaning of Section 422 of the Code.
(j) "Option" shall mean an Incentive Option, as defined in Section 2(h)
hereof, or a Non-Qualified Option, as defined in Section 2(i) hereof.
(k) "Optionee" shall mean any Employee who has been granted an Option to
purchase shares of Common Stock under the Plan.
(l) "Parent Corporation" shall have the meaning set forth in Section
424(e) of the Code.
(m) "Permanent Disability" shall mean termination of employment with the
Company or any Subsidiary or Parent Corporation of the Company with the consent
of the Company or such Subsidiary by reason of permanent and total disability
within the meaning of Section 22(e)(3) of the Code.
(n) "Plan" shall mean the Advanced Marketing Services, Inc. 1995 Stock
Option Plan, as amended.
(o) "Subsidiary" shall have the meaning set forth in Section 424(f) of
the Code.
3. ADMINISTRATION
(a) The Plan shall be administered by a Committee of at least two
Directors of the Company appointed by the Board, each of whom shall be a
"disinterested person" for purposes of Rule 16(b)(3) of the Securities and
Exchange Commission and may be an "outside director" within the meaning of
Section 162(m) of the Code, or, if there are not at least two such Directors who
are willing to serve on the Committee, by the Board. The Board may from time to
time appoint members of the Committee in substitution for or in addition to
members previously appointed and may fill vacancies.
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(b) Any action of the Committee with respect to the administration of
the Plan shall be taken by majority vote or by written consent of a majority of
its members.
(c) Subject to the provisions of the Plan, the Committee or the Board
shall have the authority to construe and interpret the Plan, to define the terms
used therein, to determine the time or times an Option may be exercised and the
number of shares for which an Option may be exercised at any one time, to
prescribe, amend and rescind rules and regulations relating to the Plan, to
approve and determine the duration of leaves of absence which may be granted to
participants without constituting a termination of their employment for purposes
of the Plan, and to make all other determinations necessary or advisable for the
administration of the Plan. All determinations and interpretations made by the
Committee shall be conclusive and binding on all Employees and on their
guardians, legal representatives and beneficiaries.
(d) The Company will indemnify and hold harmless the members of the
Board of Directors and the Committee from and against any and all liabilities,
costs and expenses incurred by such persons as a result of any act, or omission
to act, in connection with the performance of such persons' duties,
responsibilities and obligations under the Plan, other than such liabilities,
costs and expenses as may result from the negligence, gross negligence, bad
faith, willful misconduct and/or criminal acts of such persons.
4. NUMBER OF SHARES SUBJECT TO PLAN
(a) The stock to be offered under the Plan shall consist of up to
400,000 shares of the Company's Common Stock. If any Option granted hereunder
shall expire or terminate for any reason without having been exercised in full,
the unpurchased shares subject thereto shall again be available for purposes of
this Plan.
5. ELIGIBILITY AND PARTICIPATION
(a) The Committee shall determine the Employees to whom Options shall be
granted, the time or times at which such Options shall be granted and the number
of shares to be subject to each Option. An Employee who has been granted an
Option may, if he is otherwise eligible, be granted an additional Option or
Options if the Committee shall so determine. An Employee may be granted
Incentive Options or Non-Qualified Options or both under the Plan; provided,
however, that the grant of Incentive Options and Non-Qualified Options to an
Employee shall be the grant of separate Options and each Incentive Option and
each Non-Qualified Option shall be specifically designated as such.
(b) In no event shall the aggregate fair market value (determined as of
the time the Option is granted) of the shares with respect to which Incentive
Options (granted under the Plan and all other plans of the Company and any
Subsidiary or Parent Corporation of the Company) are exercisable for the first
time by an Optionee in any calendar year exceed $100,000.
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(c) In no event shall the aggregate number of shares of the Company's
Common Stock with respect to which Options may be granted to a single Optionee
during the term of the Plan exceed 200,000 shares.
6. PURCHASE PRICE
The purchase price of each share covered by each Option shall be
determined by the Committee; provided, however, that in the case of an Incentive
Option such price shall not be less than 100% of the Fair Market Value Per Share
of the Common Stock of the Company on the date the Incentive Option is granted;
and provided further that if at the time an Incentive Option is granted, the
Optionee owns or would be considered to own by reason of Section 424(d) of the
Code more than 10% of the total combined voting power of all classes of stock of
the Company or any Subsidiary or Parent Corporation of the Company, the purchase
price of the shares covered by such Incentive Option shall not be less than 110%
of the Fair Market Value Per Share of the Common Stock on the date the Incentive
Option is granted.
7. DURATION OF OPTIONS
The expiration date of an Option and all rights thereunder shall be
determined by the Committee; provided, however, that the expiration date of an
Incentive Option must be within 10 years from the date on which the Incentive
Option is granted, unless at the time the Incentive Option is granted, the
Optionee owns or would be considered to own by reason of Section 424(d) of the
Code more than 10% of the total combined voting power of all classes of stock of
the Company or any Subsidiary or Parent Corporation of the Company, in which
case the expiration date of such Incentive Option must be within five years from
the date the Incentive Option is granted. In the event the Committee does not
specify the expiration date of an Option, the expiration date shall be 10 years
from the date on which the Option was granted; provided, however, that if at the
time an Incentive Option is granted, the Optionee owns or would be considered to
own by reason of Section 424(d) of the Code more than 10% of the total combined
voting power of all classes of stock of the Company or any Subsidiary or Parent
Corporation of the Company, such Incentive Option shall expire five years from
the date of grant. Options shall be subject to earlier termination as provided
herein.
8. EXERCISE OF OPTIONS
An Option shall vest and become exercisable from time to time in
installments or otherwise in accordance with such schedule and upon such other
terms and conditions as the Committee shall in its discretion determine at the
time the Option is granted. An Optionee may purchase less than the total number
of shares for which the Option is exercisable, provided that a partial exercise
of an Option may not be for less than 100 shares, unless the exercise is during
the final year of the Option, and shall not include any fractional shares. As a
condition to the exercise, in whole or in part, of any Option, the Committee may
in its sole discretion require the Optionee to pay, in addition to the purchase
price of the shares covered by the Option, an amount equal to any federal, state
and local taxes that the Committee has determined are required to be paid in
connection with the exercise of such Option in order to enable the Company to
claim a
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deduction or otherwise. Furthermore, if any Optionee disposes of any shares of
stock acquired by exercise of an Incentive Option prior to the expiration of
either of the holding periods specified in Section 422(a)(1) of the Code, the
Optionee shall pay to the Company, or the Company shall have the right to
withhold from any payments to be made to the Optionee, an amount equal to any
federal, state and local taxes that the Committee has determined are required to
be paid in connection with the exercise of such Option in order to enable the
Company to claim a deduction or otherwise.
9. METHOD OF EXERCISE
(a) To the extent that an Option has become exercisable, the Option may
be exercised from time to time by giving written notice to the Company stating
the number of shares with respect to which the Option is being exercised,
accompanied by payment in full, by cash or by certified or cashier's check
payable to the order of the Company or the equivalent thereof acceptable to the
Company, of the purchase price for the number of shares being purchased and, if
applicable, any federal, state or local taxes required to be paid in accordance
with the provisions of Section 8 hereof.
(b) In the Committee's discretion, payment of the purchase price for the
shares with respect to which the Option is being exercised may be made in whole
or in part with shares of Common Stock of the Company. If payment is made with
shares of Common Stock, the Optionee, or other person entitled to exercise the
Option, shall deliver to the Company certificates representing the number of
shares of Common Stock in payment for the shares being purchased, duly endorsed
for transfer to the Company. If requested by the Committee, prior to the
acceptance of such certificates in payment for such shares, the Optionee, or any
other person entitled to exercise the Option, shall supply the Committee with a
representation and warranty in writing that he has good and marketable title to
the shares represented by the certificate(s), free and clear of all liens and
encumbrances. The value of the shares of Common Stock tendered in payment for
the shares being purchased shall be their Fair Market Value Per Share on the
date of the Optionee's exercise.
(c) Notwithstanding the foregoing, the Company shall have the right to
postpone the time of delivery of the shares for such period as may be required
for it to comply, with reasonable diligence, with any applicable listing
requirements of any national securities exchange or any federal, state or local
law. If an Optionee, or other person entitled to exercise an Option, fails to
accept delivery of or fails to pay for all or any portion of the shares
requested in the notice of exercise, upon tender of delivery thereof, the
Committee shall have the right to terminate his Option with respect to such
shares.
10. NON-TRANSFERABILITY OF OPTIONS
No Option granted under the Plan shall be assignable or transferable by
the Optionee, either voluntarily or by operation of law, otherwise than by will
or the laws of descent and distribution, and each Option shall be exercisable
during the Optionee's lifetime only by the Optionee.
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11. CONTINUANCE OF EMPLOYMENT
Nothing contained in the Plan or in any Option granted under the Plan
shall confer upon any Optionee any rights with respect to the continuation of
his employment by the Company or any Subsidiary or Parent Corporation of the
Company or interfere in any way with the right of the Company or any Subsidiary
or Parent Corporation of the Company at any time to terminate such employment or
to increase or decrease the compensation of the Optionee from the rate in
existence at the time of the grant of an Option.
12. TERMINATION OF EMPLOYMENT OTHER THAN BY DEATH OR PERMANENT DISABILITY
Except as the Committee may expressly determine otherwise with respect
to any particular Non-Qualified Option granted hereunder:
(a) If an Optionee ceases to be an Employee for any reason other than
his death or Permanent Disability, any Options granted to him under the Plan
shall terminate one month from the date on which such Optionee terminates his
employment unless such Optionee has been rehired by the Company and is an
Employee on such date. During such one month period, the Optionee may exercise
any Option granted to him but only to the extent such Option was exercisable on
the date of termination of his employment and provided that such Option has not
expired or otherwise terminated as provided herein. A leave of absence approved
in writing by the Committee shall not be deemed a termination of employment for
purposes of this Section, but no Option may be exercised during any such leave
of absence, except during the first month thereof.
(b) Termination of employment other than by death or Permanent
Disability for purposes hereof shall be deemed to take place on the earliest to
occur of the following: (i) the Optionee's retirement under the normal
retirement policies of the Company or any Subsidiary of the Company; (ii) the
date of the Optionee's retirement with the approval of the Committee because of
disability other than Permanent Disability; (iii) the date an Optionee receives
notice or advice that his employment is terminated; or (iv) the date an Optionee
ceases to render his services to the Company or any Subsidiary (absences for
temporary illness, emergencies and vacations or leaves of absence approved in
writing by the Committee excepted). The fact that the Optionee may receive
payment from the Company or any Subsidiary of the Company after termination for
vacation pay, for services rendered prior to termination, for salary in lieu of
notice, or for other benefits shall not affect the termination date.
13. DEATH OR PERMANENT DISABILITY OF OPTIONEE
Except as the Committee may expressly determine otherwise with respect
to any particular Non-Qualified Option granted hereunder, if an Optionee shall
die at a time when he is employed by the Company or any Subsidiary or Parent
Corporation of the Company or if the Optionee shall cease to be an Employee by
reason of Permanent Disability, any Options granted
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to him under this Plan shall terminate six months after the date of his death or
termination of employment due to Permanent Disability unless by its terms it
shall expire before such date or otherwise terminate as provided herein, and
shall only be exercisable to the extent that it would have been exercisable on
the date of his death or his termination due to Permanent Disability. In the
case of death, the Option may be exercised by the person or persons to whom the
Optionee's rights under the Option shall pass by will or by the laws of descent
and distribution.
14. STOCK PURCHASE NOT FOR DISTRIBUTION
Each Optionee shall, by accepting the grant of an Option under the Plan,
represent and agree, for himself and his transferees by will or the laws of
descent and distribution, that all shares of stock purchased upon exercise of
the Option will be received and held without a view to distribution except as
may be permitted by the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder. After each notice of exercise of any portion
of an Option, if requested by the Committee, the person entitled to exercise the
Option must agree in writing that the shares of stock are being acquired in good
faith without a view to distribution.
15. PRIVILEGES OF STOCK OWNERSHIP
No person entitled to exercise any Option granted under the Plan shall
have any of the rights or privileges of a stockholder of the Company with
respect to any shares of Common Stock issuable upon exercise of such Option
until such person has become the holder of record of such shares. No adjustment
shall be made for dividends or distributions of rights in respect of such shares
if the record date is prior to the date on which such person becomes the holder
of record, except as provided in Section 16 hereof.
16. ADJUSTMENTS
(a) If the number of outstanding shares of Common Stock of the Company
are increased or decreased, or if such shares are exchanged for a different
number or kind of shares or securities of the Company through reorganization,
merger, recapitalization, reclassification, stock dividend, stock split,
combination of shares, or other similar transaction, the aggregate number of
shares of Common Stock subject to the Plan as provided in Section 4 hereof, the
shares of Common Stock subject to issued and outstanding Options under the Plan
and the aggregate number of shares of Common Stock with respect to which Options
may be granted to a single Optionee as provided in Section 5(c) hereof shall be
appropriately and proportionately adjusted by the Committee. Any such adjustment
in the outstanding Options shall be made without change in the aggregate
purchase price applicable to the unexercised portion of the Option but with an
appropriate adjustment in the price for each share or other unit of any security
covered by the Option.
(b) Notwithstanding the provisions of subsection (a) of this Section,
upon the dissolution or liquidation of the Company or upon any reorganization,
merger or consolidation with one or more corporations as a result of which the
Company is not the surviving corporation, or upon a sale of all or substantially
all the assets of the Company or of more than 80% of the
7
<PAGE> 8
then outstanding stock of the Company to another corporation or entity, the Plan
and each outstanding Option shall terminate; provided, however, that: (i) each
Option for which no option has been tendered by the surviving corporation in
accordance with all of the terms of provision (ii) immediately below shall
become fully exercisable thirty days before the effective date of such
dissolution, liquidation, merger, consolidation or sale of stock or assets in
which the Company is not the surviving corporation; or (ii) in its sole and
absolute discretion, the surviving corporation may, but shall not be obligated
to, tender to any Optionee holding an Option, an option or options to purchase
shares of the surviving corporation or acquiring corporation, and such new
option or options shall contain such terms and provisions as shall be required
substantially to preserve the rights and benefits of any Option then outstanding
under this Plan.
(c) Adjustments under this Section shall be made by the Committee, whose
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive. No fractional shares of stock shall be
issued under the Plan or in connection with any such adjustment.
17. AMENDMENT AND TERMINATION OF PLAN
(a) The Board of Directors of the Company may from time to time, with
respect to any shares at the time not subject to Options, suspend or terminate
the Plan or amend or revise the terms of the Plan; provided that any amendment
to the Plan shall be approved by a majority of the stockholders of the Company
if the amendment would (i) materially increase the benefits accruing to
participants under the Plan; (ii) increase the number of shares of Common Stock
which may be issued under the Plan, except as permitted under the provisions of
Section 16 hereof; or (iii) materially modify the requirements as to eligibility
for participation in the Plan.
(b) No amendment, suspension or termination of the Plan shall, without
the consent of the Optionee, alter or impair in a manner adverse to the Optionee
any rights or obligations under any Option theretofore granted to such Optionee
under the Plan.
(c) The terms and conditions of any Option granted to an Optionee under
the Plan may be modified or amended only by a written agreement executed by the
Optionee and the Company.
18. EFFECTIVE DATE OF PLAN
This Plan shall become effective upon adoption by the Board of Directors
of the Company and approval by the Company's stockholders; provided, however,
that prior to approval of the Plan by the Company's stockholders, but after
adoption by the Board of Directors, Options may be granted under the Plan
subject to obtaining the stockholders' approval of the adoption of the Plan.
Notwithstanding the foregoing, stockholders' approval must occur no later than
12 months after the date of adoption of the Plan by the Board of Directors.
8
<PAGE> 9
19. TERM OF PLAN
No Option shall be granted pursuant to the Plan after 10 years from the
earlier of the date of adoption of the Plan by the Board of Directors of the
Company or the date of approval of the Plan by the Company's stockholders.
9
<PAGE> 10
Exhibit 4.3
AMENDMENT TO
ADVANCED MARKETING SERVICES, INC.
1995 STOCK OPTION PLAN
This First Amendment (the "Amendment") to Advanced Marketing Services,
Inc. (the "Company") 1995 Stock Option Plan (the "Plan") is made and entered
into as of July 23, 1998 with reference to the following:
WHEREAS, the Board of Directors of the Company duly approved this
Amendment on March 1998, subject to stockholder approval; and
WHEREAS, the Amendment was approved by the stockholders of the Company on
July 23, 1998.
NOW, THEREFORE, the Plan is amended as follows:
1. Paragraph 4(a) of the Plan is amended and restated in its entirety to
read as follows:
"(a) The stock to be offered under the Plan shall consist of up to
650,000 shares of the Company's Common Stock. If any Option granted
hereunder shall expire or terminate for any reason without having been
exercised in full, the unpurchased shares subject thereto shall again be
available for purposes of this Plan."
2. Paragraph 5(c) of the Plan is amended and restated in its entirety to
read as follows:
"(c) In no event shall the aggregate number of shares of the
Company's Common Stock with respect to which Options may be granted to a
single Optionee during the term of the Plan exceed 300,000 shares."
3. In all other respects, the Plan shall remain unchanged and in full
force and effect.
<PAGE> 1
[HUGHES HUBBARD & REED LLP LETTERHEAD]
Exhibit 5.1
July 17, 1998
Advanced Marketing Services, Inc.
5880 Oberlin Drive, Suite 400
San Diego, California 92121
Re: Registration Statement on Form S-8
Gentlemen:
We have represented Advanced Marketing Corporation, Inc., a Delaware
corporation (the "Company"), as special securities counsel in connection with
the registration under the Securities Act of 1933, as amended (the "Securities
Act"), of 250,000 shares of the Company's common stock, $.001 par value (the
"Shares"), issuable upon exercise of stock options granted under the Advanced
Marketing Services, Inc. 1995 Stock Option Plan (the "Plan"). The Shares are
being registered by the Company on a Registration Statement on Form S-8 to be
filed with the Securities and Exchange Commission (the "Commission") on or about
the date hereof (the "Registration Statement").
As such special securities counsel, and for the purpose of rendering
this opinion, we have reviewed such corporate records and other documents as we
have deemed necessary, including, but not limited to, the following:
(a) Articles of Incorporation, as currently in effect, of the Company;
(b) Bylaws, as currently in effect, of the Company;
(c) The Plan, as amended to date;
(d) Certain resolutions adopted by the Board of Directors and the
Shareholders of the Company and related documents adopting and approving the
Plan; and
(e) The Registration Statement, in the form proposed to be filed with
the Commission under the Act, together with exhibits to be filed in connection
therewith and the form of Prospectus related thereto.
In addition, we have consulted with officers and other representatives
of the Company and have obtained such representations with respect to such
matters of fact as we have deemed necessary or advisable; however, we have not
necessarily independently verified the content of
<PAGE> 2
HUGHES HUBBARD & REED LLP
Advanced Marketing Services, Inc.
July 17, 1998
Page 2
factual statements made to us in connection therewith or the veracity of such
representations. We have assumed without independent verification or
investigation (i) the genuineness of all signatures, (ii) the authenticity of
all documents submitted to us as originals and (iii) the conformity to authentic
original documents of all documents submitted to us as certified, conformed or
photostatic copies.
On the basis of the foregoing, such examinations of law and such other
information as we have deemed relevant under the circumstances, we are of the
opinion as of the date hereof that the Shares, when issued and sold pursuant to
the Plan, will be validly issued, fully paid and nonassessable shares of common
stock of the Company.
The law covered by the opinion set forth above is limited to the laws of
the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement relating to the Shares. In giving this consent, we do not
admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules or regulations of the Commission
promulgated thereunder.
Very truly yours,
HUGHES HUBBARD & REED LLP
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8 of our
report dated May 12, 1998, included in Advanced Marketing Services, Inc.'s Form
10-K for the year ended March 31, 1998, and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
San Diego, California
July 15, 1998
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
ADVANCED MARKETING SERVICES, INC.
S-8 REGISTRATION OF 1995 STOCK OPTION PLAN
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned does
hereby constitute and appoint each of Charles C. Tillinghast, III, Michael M.
Nicita and Loren C. Paulsen, with full power of substitution and resubstitution,
his true and lawful attorney-in-fact and agent to execute in his name any
Registration Statement on Form S-8 to be filed with the Securities and Exchange
Commission under the Securities Act of 1933 relating to shares issuable under
the Advanced Marketing Services, Inc. 1995 Stock Option Plan, including without
limitation any and all amendments (including post-effective amendments) to any
such Registration Statement, and to file the same, with all exhibits thereto and
any other documents in connection therewith, with the Securities and Exchange
Commission. Each such attorney-in-fact and his substitutes shall have and may
exercise all powers to act hereunder. Each of the undersigned does hereby ratify
and confirm all that said attorney-in-fact and agent shall do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has signed his name
hereto as of this 17th day of July, 1998.
/s/ Charles C. Tillinghast, III /s/ Michael M. Nicita
- ---------------------------------- --------------------------------------
Charles C. Tillinghast, III Michael M. Nicita
/s/ Loren C. Paulsen /s/ Robert F. Bartlett
- ---------------------------------- --------------------------------------
Loren C. Paulsen Robert F. Bartlett
/s/ Lynn S. Dawson /s/ James A. Leidich
- ---------------------------------- --------------------------------------
Lynn S. Dawson James A. Leidich
/s/ Trygve E. Myhren /s/ E. William Swanson
- ---------------------------------- --------------------------------------
Trygve E. Myhren E. William Swanson
