<PAGE> 1
================================================================================
As filed with the Securities and Exchange Commission on May 28, 1999
Registration No. 333-____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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
(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 Securities Proposed Maximum Proposed Maximum
Title of Securities to to be Offering Price Per Aggregate Offering Amount of
be Registered Registered(1)(2) Share (3) Price Registration Fee
======================================================================================================================
<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) filed in connection with the employee benefit plans
described herein, 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
================================================================================
<PAGE> 2
Plan, 1,806,661 shares of Common Stock under the Borders 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, and 600,000 shares of Common Stock under the
Borders Group, Inc. 401(k) Plan.
(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. 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.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
Each of Borders Group, Inc. (the "Company") and the Borders Group, Inc.
401(k) Plan 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, 1997.
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
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 5. Interests of Named Experts and Counsel.
The validity of the common stock being registered hereby will be passed
upon for Borders Group by Thomas D. Carney, Esq., Vice President, Secretary, and
General Counsel of Borders Group. Mr. Carney beneficially owns 16,238 shares of
common stock and holds options to purchase 130,040 additional shares of common
stock.
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 fairly and reasonably
entitled to indemnification for such expenses as the court shall deem proper.
Expenses
<PAGE> 4
(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
5 Opinion of Thomas D. Carney
23 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included in Signature Page)
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.
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
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 28th day
of May, 1999.
BORDERS GROUP, INC.
By: /s/ Robert F. DiRomualdo
---------------------------------
Robert F. DiRomualdo
Chairman, Chief Executive Officer,
President and Director
POWER OF ATTORNEY
We, the undersigned officers and directors of Borders Group, Inc.,
hereby severally and individually constitute and appoint Robert F. DiRomualdo
and Thomas D. Carney, and each of them, the true and lawful attorneys and agents
of each of us to execute in the name, place and stead of each of us
(individually and in any capacity stated below) any and all amendments to this
Registration Statement on Form S-8, and all instruments necessary or advisable
in connection therewith, and to file the same with the Securities and Exchange
Commission, each of said attorneys and agents to have power to act with or
without the other and to have full power and authority to do and perform in the
name and on behalf of each of the undersigned every act whatsoever necessary or
advisable to be done in the premises as fully and to all intents and purposes as
any of the undersigned might or could do in person, and we hereby ratify and
confirm our signatures as they may be signed by our said attorneys and agents
and each of them to any and all such amendments and other instruments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ Robert F. DiRomualdo Chairman, Chief Executive Officer, May 28, 1999
- ----------------------------------------------- President and Director
Robert F. DiRomualdo (Principal Executive Officer)
/s/ George R. Mrkonic Vice Chairman and Director May 28, 1999
- -----------------------------------------------
George R. Mrkonic
Senior Vice President and Chief Financial
/s/ Kenneth E. Scheve Officer (Principal Financial and Accounting May 28, 1999
- ----------------------------------------------- Officer)
Kenneth E. Scheve
/s/ Peter R. Formanek Director May 28, 1999
- -----------------------------------------------
Peter R. Formanek
/s/ Victor L. Lund Director May 28, 1999
- -----------------------------------------------
Victor L. Lund
/s/ Edna Greene Medford Director May 28, 1999
- -----------------------------------------------
Edna Greene Medford
/s/ Larry Pollock Director May 28, 1999
- -----------------------------------------------
Larry Pollock
/s/ Leonard A. Schlesinger Director May 28, 1999
- -----------------------------------------------
Leonard A. Schlesinger
</TABLE>
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The Plan. Pursuant to the requirements of the Securities Act of 1933,
Borders Group, Inc., as the administrator of the Plan, has duly caused 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 28th day
of May, 1999.
BORDERS GROUP, INC. 401(k) SAVINGS PLAN
By: Borders Group, Inc., as Plan administrator
/s/ Robert F. DiRomualdo
------------------------------------------------
Robert F. DiRomualdo
Chairman, Chief Executive Officer,
President and Director
<PAGE> 8
EXHIBIT INDEX
Exhibit No. Description
5 Opinion of Thomas D. Carney
23 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included in Signature Page)
<PAGE> 1
EXHIBIT 5
May 28, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Borders Group, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
As general counsel for Borders Group, Inc. (the "Corporation"), I am
familiar with the corporate affairs of the Corporation and particularly with the
corporate proceedings relating to the establishment of the Corporation's
Management Stock Purchase Plan, Stock Option Plan, Employee Stock Purchase Plan
and Director Stock Plan (collectively, the "Plans").
The Plans have been duly and legally adopted by the Board of Directors
of the Corporation.
Based on the above, I am of the opinion that:
1. The Corporation duly and validly has adopted and established the
Plans taking all necessary corporate action for that purpose.
2. The shares of Common Stock of the Corporation covered by the Plans
have been duly authorized and when issued pursuant to the Plans will be validly
issued, fully paid and non-assessable and no personal liability will attach to
the holders thereof.
3. The Plans are not subject to the Employee Retirement Security Act of
1974, as amended.
Very truly yours,
BORDERS GROUP, INC.
Thomas D. Carney
Vice President and General Counsel
<PAGE> 1
EXHIBIT 23.1
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 17, 1998 appearing
on page 1 of the Borders Group, Inc. 401(k) Plan Annual Report on Form 11-K for
year ended December 31, 1997.
PRICEWATERHOUSECOOPERS LLP
Bloomfield Hills, Michigan
May 27, 1999
