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As filed with the Securities and Exchange Registration No. 333-________
Commission on July 7, 1998
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BOOKS-A-MILLION, INC.
(Exact name of Registrant as Specified in its Charter)
Delaware 63-0798460
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
402 Industrial Lane
Birmingham, Alabama 35211
(Address of Principal Executive
Offices)
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BOOKS-A-MILLION, INC.
STOCK OPTION PLAN
AS AMENDED AND RESTATED AS OF MARCH 18, 1998
(Full Title of the Plan)
-------------------
Clyde B. Anderson
Chief Executive Officer and President
Books-A-Million, Inc.
402 Industrial Lane
Birmingham, Alabama 35211
(205) 942-3737
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Annette D. Elinger, Esq.
Hunton & Williams
NationsBank Plaza - Suite 4100
600 Peachtree Street, N. E.
Atlanta, Georgia 30308-2216
(404) 888-4000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered(1) per share(2) offering price(2) registration fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 1,500,000 $4.50 $6,750,000 $1,991
par value.................... shares
=====================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a) the number of shares of Common Stock
registered hereunder includes such indeterminate number of additional shares of
Common Stock as may be offered or issued in the future to prevent dilution
resulting from stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of computing the registration fee.
This amount was calculated pursuant to Rule 457(c) on the basis of $4.50 per
share, which was the average of the high and low prices of the Registrant's
Common Stock on July 1, 1998, as reported on the Nasdaq National Market.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Books-A-Million, Inc. (the "Company")
with the Commission are incorporated herein by reference and made a part
hereof:
(i) The Company's Annual Report on Form 10-K for the
year ended January 31, 1998 (File No. 000-20664), as
filed with the Commission May 1, 1998;
(ii) The Company's Quarterly Report on Form 10-Q for the
quarter ended May 2, 1998 (File No. 000-20664), as
filed with the Commission May 16, 1998; and
(iii) The description of the Common Stock contained in the
Company's Registration Statement on Form S-1
(Registration No. 33-52256), including any
amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which reregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in the Registration Statement and to be part hereof from the date of
filing of such documents. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document that is incorporated by reference
herein modifies or supersedes such earlier 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.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware provides that a
corporation may indemnify its directors and officers against civil and criminal
liabilities. Directors and officers may be indemnified against expenses if they
acted in good faith and in a manner reasonably believed to be in or not opposed
to the best
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interests of the corporation and, with respect to any criminal action, if they
had no reasonable cause to believe their conduct was unlawful. A director or
officer may be indemnified against expenses incurred in connection with a
derivative suit if he acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the corporation, except that
no indemnification may be made without court approval if such person was
adjudged liable for negligence or misconduct in the performance of his or her
duty to the corporation. The statutory indemnification is not exclusive of any
rights provided by any by-law, agreement, vote of shareholders or disinterested
directors or otherwise.
Article X of the Company's Certificate of Incorporation sets forth the
extent to which the Company's directors and officers may be indemnified against
liabilities and other monetary expenses which they may incur while serving in
such capacities. Such indemnification will be provided to the full extent
permitted and in the manner required by the General Corporation Law of
Delaware. Article VI of the Company's By-laws also provides that the directors
and officers of the Company will be indemnified against any losses incurred in
connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Company or served
with another corporation, partnership, joint venture, trust or other enterprise
at the request of the Company and will provide advances, for expenses incurred
in defending any such action, suit or proceeding, upon receipt of an
undertaking by or on behalf of such officer or director to repay such advances,
if it is ultimately determined that he is not entitled to indemnification by
the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1* Certificate of Incorporation of Books-A-Million, Inc.
4.2** By-laws of Books-A-Million, Inc.
4.3+ Specimen Stock Certificate.
5 Opinion of Hunton & Williams.
23.1 Consent of Arthur Andersen, LLP independent certified public accountants.
23.2 Consent of Hunton & Williams (included as part of Exhibit 5).
24 Power of Attorney (included on signature page hereto).
99*** Amended and Restated Stock Option Plan.
</TABLE>
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* Incorporated herein by reference to Exhibit 3.1 in the Company's
Registration Statement on Form S-1 (Registration No. 33-52256).
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** Incorporated herein by reference to Exhibit 3.2 in the Company's
Registration Statement on Form S-1 (Registration No. 33-52256).
+ Incorporated herein by reference to Exhibit 4 in the Company's
Registration Statement on Form S-1 (Registration No. 33-52256).
*** Incorporated herein by reference to Appendix A of the Company's Proxy
Statement, File No. 000-20664, dated April 27, 1998, for the Annual
Meeting of the Company's Stockholders held June 4, 1998.
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;
(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.
2. That, for the purpose of determining any liability
under the Securities Act, 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, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of 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.
(c) 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 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 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 Securities 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, 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 Birmingham, Alabama on this 2nd day of July, 1998.
BOOKS-A-MILLION, INC.
By: /s/ Clyde B. Anderson
--------------------------------------
Clyde B. Anderson
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby authorizes each of Clyde B. Anderson and Sandra B. Cochran
to execute in the name of each such person, and to file any amendment,
including any post-effective amendment, to the Registration Statement making
such changes in the Registration Statement as the Registrant deems appropriate,
and appoints each of Mr. Anderson and Ms. Cochran as attorney-in-fact to sign
in his behalf individually and in each capacity stated below and file all
amendments and post-effective amendments to the Registration Statement.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
on the 2nd day of July, 1998.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
Chief Executive Officer and President
/s/ Clyde B. Anderson (principal executive officer)
- --------------------------------
Clyde B. Anderson
Executive Vice President, Chief Financial
/s/ Sandra B. Cochran Officer and Secretary (principal financial and
- -------------------------------- accounting officer)
Sandra B. Cochran
/s/ Charles C. Anderson Director
- --------------------------------
Charles C. Anderson
/s/ Ronald G. Bruno Director
- --------------------------------
Ronald G. Bruno
/s/ John E. Southwood Director
- --------------------------------
John E. Southwood
/s/ J. Barry Mason Director
- --------------------------------
J. Barry Mason
/s/ Terry C. Anderson Director
- --------------------------------
Terry C. Anderson
</TABLE>
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1* Certificate of Incorporation of Books-A-Million, Inc.
4.2** By-Laws of Books-A-Million, Inc.
4.3+ Specimen Stock Certificate.
5 Opinion of Hunton & Williams.
23.1 Consent of Arthur Andersen LLP independent certified public accountants.
23.2 Consent of Hunton & Williams (included as part of Exhibit 5).
24 Power of Attorney (included on signature page hereto).
99*** Amended and Restated Stock Option Plan.
</TABLE>
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* Incorporated herein by reference to Exhibit 3.1 in the Company's
Registration Statement on Form S-1 (Registration No. 33-52256).
** Incorporated herein by reference to Exhibit 3.2 in the Company's
Registration Statement on Form S-1 (Registration No. 33-52256).
+ Incorporated herein by reference to Exhibit 4 in the Company's
Registration Statement on Form S-1 (Registration No. 33-52256).
*** Incorporated herein by reference to Appendix A of the Company's Proxy
Statement, File No. 000-20664, dated April 27, 1998, for the Annual
Meeting of the Company's Stockholders held June 4, 1998.
<PAGE> 1
EXHIBIT 5
File No.: 50009.1
July 2, 1998
Books-A-Million, Inc.
402 Industrial Lane
Birmingham, Alabama 35211
Re: Books-A-Million, Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as counsel for Books-A-Million, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, pursuant to the Company's Registration
Statement on Form S-8 (the "Registration Statement"), of 1,500,000 shares (the
"Shares") of the Company's authorized common stock, $.01 par value per share,
under the Company's Amended and Restated Stock Option Plan (the "Plan").
We have examined and are familiar with originals or copies (certified
or otherwise identified to our satisfaction) of such documents, corporate
records and other instruments relating to the organization of the Company and
to the authorization and issuance of the Shares subject to the Plan, as
appropriate, as we have deemed necessary and advisable.
Based upon the foregoing and having regard for such legal
consideration as we deem relevant, it is our opinion that the Shares will be,
when issued in accordance with the terms of the Plan, legally issued, fully
paid and non-assessable.
We do hereby consent to the filing of this Opinion as Exhibit 5 to the
Registration Statement.
Very truly yours.
/s/ Hunton & Williams
Hunton & Williams
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors
of Books-A-Million, Inc.
We hereby consent to the inclusion in this Registration Statement on
Form S-8 of our report dated March 17, 1998 appearing on page F-1 of the
Books-A-Million, Inc. Annual Report on Form 10-K for the year ended January 31,
1998. We also consent to the references to our firm in the Registration
Statement.
Arthur Andersen, LLP
/s/ Arthur Andersen, LLP
---------------------------------
Arthur Andersen, LLP
June 19, 1998
