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As filed with the Securities and Exchange Commission on December 30, 1999
Registration No. 333-79559
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8/A
Post-Effective Amendment No. 1 to Form S-8
Registration Statement
Under
The Securities Act of 1933
BORDERS GROUP, INC.
(Exact name of registrant as specified in its charter)
Michigan 38-3196915
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
100 Phoenix Drive
Ann Arbor, Michigan 48108
(Address of principal executive offices) (Zip Code)
Borders Group, Inc. Management Stock Purchase Plan
Borders Group, Inc. Stock Option Plan
Borders Group, Inc. Employee Stock Purchase Plan
Borders Group, Inc. Director Stock Plan
Borders Group, Inc. 401(k) Plan
Borders Group, Inc. Savings Plan for Employees Working in Puerto Rico
(Full title of the plans)
Thomas D. Carney, Esq.
Vice President, Secretary and General Counsel
Borders Group, Inc.
100 Phoenix Drive
Ann Arbor, Michigan 48108
(734) 477-1100
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Amount of Proposed Maximum Proposed Maximum
Title of Securities to Securities to be Offering Price Per Aggregate Offering Amount of
be Registered Registered(1)(2) Share (3) Price Registration Fee(4)
======================================================================================================================
<S> <C> <C> <C> <C>
Common Stock 1,580,000 shares $16.65625 $26,316,875 $7,320
======================================================================================================================
</TABLE>
(1) This Registration Statement also covers (i) 5,213,739 shares previously
registered on, and being carried forward from, a Registration Statement on Form
S-8 (File No. 33-92716), with respect to which a registration fee of $24,262 has
been paid, and (ii) 1,806,661 shares previously registered on, and being carried
forward from, a Registration Statement on Form S-8 (File No. 333-29369) filed in
connection with the Borders Group, Inc. Stock Option Plan, with respect to which
a registration fee of $12,592 has been paid. The 8,600,400 shares of common
stock covered by this Registration Statement are allocated as follows: 3,958,499
shares of Common Stock under the Borders Group, Inc. Management Stock Purchase
Plan, 1,806,661 shares of Common Stock under the Borders
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Group, Inc. Stock Option Plan, 1,999,198 shares of Common Stock under the
Borders Group, Inc. Employee Stock Purchase Plan, 236,042 shares of Common Stock
under the Borders Group, Inc Director Stock Plan, 599,000 shares of Common Stock
under the Borders Group, Inc. 401(k) Plan, and 1,000 shares of Common Stock
under the Borders Group, Inc. Savings Plan for Employees Working in Puerto Rico.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the Borders Group, Inc. 401(k) Plan and the
Borders Group, Inc. Savings Plan for Employees Working in Puerto Rico. Pursuant
to Rule 416, this registration statement also covers any additional shares of
Common Stock which may be issuable in connection with any stock split, stock
dividend or similar transaction.
(3) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) and (h), based upon the average of the high and low
prices of the Common Stock reported by the New York Stock Exchange on May 21,
1999.
(4) Fee previously paid.
EXPLANATORY STATEMENT
The purpose of this Post-Effective Amendment is to add the Borders
Group, Inc. Savings Plan for Employees Working in Puerto Rico and to adjust the
allocation of the shares of common stock covered by this Registration Statement
by reducing the number of shares allocated to the Borders Group, Inc. 401(k)
Plan by 1,000 shares and allocating such 1,000 shares to the Borders Group, Inc.
Savings Plan for Employees Working in Puerto Rico.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
Each of Borders Group, Inc. (the "Company"), the Borders Group, Inc.
401(k) Plan and the Borders Group, Inc. Savings Plan for Employees Working in
Puerto Rico hereby incorporates by reference in this Registration Statement the
following documents previously filed with the Securities and Exchange Commission
(the "Commission") under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"):
1. The Company's Annual Report on Form 10-K for the year ended
January 24, 1999 and the Borders Group, Inc. 401(k) Plan's
Annual Report on Form 11-K for the fiscal year ended December
31, 1998.
2. All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the
Company's Annual Report on Form 10-K referred to in (1) above.
3. The description of the Common Stock of the Company set forth in
the Form 8-B of the Company dated August 28, 1997.
All documents subsequently filed with the Commission by the Company,
the Borders Group, Inc. 401(k) Plan, or the Borders Group, Inc. Savings Plan for
Employees Working in Puerto Rico pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act 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 herein
by reference and to be a part hereof from the dates 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 of
this Registration Statement 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 6. Indemnification of Directors and Officers.
Article IX of the Company's Articles of Incorporation provides that the
Company shall indemnify to the fullest extent permitted by the Business
Corporation Act of Michigan the ("MBCA") any director or officer. In addition,
the Company may, by action by the Board of Directors, provide rights to
indemnification to employees and agents similar to the foregoing indemnification
of directors and officers.
Under Sections 561, et seq. of the MBCA, a corporation may indemnify a
director, officer, employee or agent of the corporation (or other entity if such
person is serving in such capacity at the corporation's request) who was or is a
party or is threatened to be made a party to a threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal, other than an action by or in the
right of the corporation, by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation (or such other entity)
against expenses (including attorneys' fees), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him 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 corporation or its shareholders and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. In the case of an action brought by or in the right of a
corporation, the corporation may indemnify a director, officer, employee or
agent of the corporation (or other entity if such person is serving in such
capacity at the corporation's request) against expenses (including attorneys'
fees) and amounts paid in settlement, actually and reasonably incurred by him 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 corporation or its shareholders, except
that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation
unless a court determines that, despite the adjudication of liability but in
view of all the relevant circumstances, such person is
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fairly and reasonably entitled to indemnification for such expenses as the court
shall deem proper. Expenses (including attorneys' fees) incurred by an officer,
director, employee or agent in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of a written undertaking by or on behalf of such person to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation and a written affirmation of such person of his good faith
belief that he is entitled to indemnification under the standards of conduct of
the statute.
Policies of insurance will be maintained by the Company under which
directors and officers of the Company will be insured, within the limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such actions, suits or
proceedings, to which they are parties by reason of being or having been a
director or officer.
Article VIII of the Company's Articles of Incorporation provides that,
to the fullest extent permitted by the MBCA, no director shall be personally
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (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 that involve intentional misconduct or a knowing
violation of law, (iii) pursuant to Section 551(l) of the MBCA or (iv) for any
transaction from which the director derived an improper personal benefit.
Item 8. Exhibits
23 Consent of PricewaterhouseCoopers LLP
The registrant undertakes to have the Borders Group, Inc. 401(k) Plan,
as amended, submitted to the Internal Revenue Service in a timely manner and to
make all changes required by the Internal Revenue Service in order to maintain
the qualification of such plan under Section 401 of the Internal Revenue Code of
1986, as amended.
The registrant undertakes to have the Borders Group, Inc. Savings Plan
for Employees Working in Puerto Rico and any amendments thereto submitted to the
Puerto Rico Department of the Treasury in a timely manner and to make all
changes required by the Puerto Rico Department of the Treasury in order to
maintain the qualification of such plan under Section 1165(a) of the Puerto Rico
Internal Revenue Code of 1994, as amended.
Item 9. Undertakings.
(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 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. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
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(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 registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
2. That, for the purpose of determining any liability under the
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 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 Act, each filing of the
registrant'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
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 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 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
Post-Effective Amendment No. 1 to this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Ann
Arbor, State of Michigan, on this 30th day of December, 1999.
BORDERS GROUP, INC.
By: /s/ Greg Josefowicz
------------------------
Greg Josefowicz
Chief Executive Officer,
President and Director
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to this Registration Statement has been signed by
the following persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ Greg Josefowicz Chief Executive Officer, December 30, 1999
- ----------------------------------------------- President and Director
Greg Josefowicz (Principal Executive Officer)
* December 30, 1999
- ----------------------------------------------- Chairman and Director
Robert F. DiRomualdo
* Vice Chairman and Director December 30, 1999
- -----------------------------------------------
George R. Mrkonic
Senior Vice President and Chief Financial
* Officer (Principal Financial and Accounting December 30, 1999
- ----------------------------------------------- Officer)
Kenneth E. Scheve
* Director December 30, 1999
- -----------------------------------------------
Peter R. Formanek
* Director December 30, 1999
- -----------------------------------------------
Victor L. Lund
* Director December 30, 1999
- -----------------------------------------------
Edna Greene Medford
* Director December 30, 1999
- -----------------------------------------------
Larry Pollock
* Director December 30, 1999
- -----------------------------------------------
Leonard A. Schlesinger
/s/ Thomas D. Carney
- -----------------------------------------------
*Thomas D. Carney as attorney-in-fact
pursuant to Power of Attorney granted
in Registration Statement No. 333-79559
</TABLE>
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The Plan. Pursuant to the requirements of the Securities Act of 1933,
Borders Group, Inc., as the administrator of each of the Borders Group, Inc.
401(k) Plan and the Borders Group, Inc. Savings Plan for Employees Working in
Puerto Rico, has duly caused this Post-Effective Amendment No. 1 to this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Ann Arbor, State of Michigan, on this 30th day
of December, 1999.
BORDERS GROUP, INC. 401(k) PLAN
By: Borders Group, Inc.,
as Plan administrator
By: /s/ Greg Josefowicz
--------------------------------
Greg Josefowicz
Chief Executive Officer,
President and Director
BORDERS GROUP, INC. SAVINGS PLAN FOR
EMPLOYEES WORKING IN PUERTO RICO
By: Borders Group, Inc.,
as Plan administrator
By: /s/ Greg Josefowicz
--------------------------------
Greg Josefowicz
Chief Executive Officer,
President and Director
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EXHIBIT INDEX
Exhibit No. Description
23 Consent of PricewaterhouseCoopers LLP
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 8, 1999 appearing
on page 31 of the Borders Group, Inc. Annual Report on Form 10-K for the year
ended January 24, 1999. We also consent to the incorporation by reference in
this Registration Statement on Form S-8 of our report dated June 23, 1999
appearing on page 14 of the Borders Group, Inc. 401(k) Plan Annual Report on
Form 11-K for year ended December 31, 1998.
PRICEWATERHOUSECOOPERS LLP
Bloomfield Hills, Michigan
December 29, 1999
