As filed with the Securities and Exchange Commission on June 21, 2005
Registration No. 333-[_____]_
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
BOOKS-A-MILLION, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 63-0798460
(State of other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
402 Industrial Lane
Birmingham, Alabama 35211
(205) 942-3737
(Address of principal
executive offices)
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
BOOKS-A-MILLION, INC. 2005 INCENTIVE AWARD PLAN
(Full title of the plan)
Sandra B. Cochran
President and Chief Executive Officer
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)
Copy to:
Steven Della Rocca, Esq.
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022
(212) 906-1200
(212) 751-4864 (fax)
Calculation of Registration Fee
================================= =================== =================== ==================== =====================
Title of Securities to be Amount Proposed Proposed
Registered of Shares Maximum Maximum Amount of
to be Offering Price Aggregate Registration
Registered(1) Per Share (2) Offering Price (2) Fee
================================= =================== =================== ==================== =====================
Common Stock 300,000 $8.56 $2,568,000 $302.25
$.01 par value
(1) The Books-A-Million, Inc. 2005 Incentive Award Plan (the "Plan")
authorizes the issuance of up to a maximum of 300,000 shares of common
stock, par value $0.01 per share ("Common Stock"), of Books-A-Million,
Inc. (the "Company"). Pursuant to Rule 416 under the Securities Act of
1933, as amended (the "Securities Act"), additional shares of Common
Stock which become issuable to prevent dilution from any future stock
split, stock dividend or similar transaction are also being registered.
(2) For purposes of computing the registration fee only. Pursuant to Rule
457(h) under the Securities Act, the Proposed Maximum Offering Price
Per Share is based upon the average of the high and low trading prices
of the Common Stock as reported on the National Association of
Securities Dealers' Automated Quotation Service on June 14, 2005.
PART I
Item 1. Plan Information
Not required to be filed with this Registration Statement.
Item 2. Registration Information and Employee Plan Annual Information
Not required to be filed with this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), by the Company, are hereby
incorporated as of their respective dates in this Registration Statement by
reference:
A. The Company's Annual Report on Form 10-K for the
fiscal year ended January 29, 2005.
B. The Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended April 30, 2005.
C. The Company's Current Report on Form 8-K filed with
the Commission on the following dates: March 9, 2005,
March 11, 2005 (8-K/A), March 18, 2005, March 22,
2005, May 5, 2005, May 16, 2005, May 20, 2005, June
3, 2005 and June 7, 2005.
D. The description of the Company's Common Stock
contained in the Company's Registration Statement on
S-1 (File No. 33-52256), including any amendment or
report filed for the purposes of updating such
description.
All documents filed 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 have been sold or which deregisters
all securities then remaining unsold are incorporated by reference in this
Registration Statement and are a part hereof from the date of filing 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 is also or is
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 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 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 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
A list of exhibits included as part of this Registration
Statement is set forth on the Exhibit Index appearing
elsewhere herein and is incorporate herein by reference.
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 Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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;
(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) shall not apply
to information contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended;
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 a post-effective amendment
any of the securities being registered that remain unsold at the termination
of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's Annual Report pursuant to section 13(a) or 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
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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 the City of Birmingham, State of Alabama, on June 21, 2005.
BOOKS-A-MILLION, INC.
By: _/s/ Sandra B. Cochran___
Name: Sandra B. Cochran
Title: President and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned officers and directors of the Company hereby
severally constitutes and appoints Sandra B. Cochran the undersigned's true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for the undersigned and in the undersigned's name, place and
stead, in any and all capacities (unless revoked in writing), to sign this
Registration Statement on Form S-8, and any and all amendments thereto,
including any post-effective amendments as well as any related registration
statement (or amended thereto) filed in reliance upon Rule 462(b) under the
Securities Act, as amended and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting to such attorney-in-fact and agent full power and authority
to do and perform each and every act and thing requisite or necessary to be done
in connection therewith, as fully as to all intents and purposes as the
undersigned might and could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agents or his substitute or substitutes, may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature T Date Signed
_/s/ Sandra B. Cochran__ President and Chief Executive June 21, 2005
------------------------ Officer
Sandra B. Cochran (Principal Executive Officer)
_/s/ Richard S. Wallington Chief Financial Officer June 21, 2005
-------------------------- (Prinicipal Financial
Richard S. Wallington and Accounting Officer)
_/s/ Clyde B. Anderson Executive Chairman of the Board June 21, 2005
------------------------- of Directors
Clyde B. Anderson
_/s/ Terry C. Anderson_ Director June 21, 2005
-----------------------
Terry C. Anderson
_/s/ Ronald G. Bruno__ Director June 21, 2005
----------------------
Ronald G. Bruno
__/s/ J. Barry Mason Director June 21, 2005
-------------------------
J. Barry Mason
__/s/ William H. Rogers, Jr. Director June 21, 2005
----------------------------
William H. Rogers, Jr.
Exhibit Index
3(a) Certificate of Incorporation of the Company
(incorporated herein by reference to the exhibits to
the Company's Registration Statement on Form S-1,
File No. 33-52256).
3(b) By-Laws of the Company (incorporated by reference to
the exhibits to the Company's Registration Statement
on Form S-1, File No. 33-52256).
3(c) Specimen Certificate of Common Stock (incorporated
herein by reference to the exhibits to the Company's
Registration Statement on Form S-1, File No.
33-52256).
4(a) Books-A-Million, Inc. 2005 Incentive Award Plan
(incorporated herein by reference to Appendix A to
the Company's Proxy Statement, File No. 00-20664, for
the Annual Meeting of the Company's Stockholders held
June 1, 2005).
5(a) Opinion of Counsel regarding the legality of the
Common Stock being registered.
23(a) Consent of Counsel (included in Exhibit 5(a)).
23(b) Consent of Independent Accountants.
24(a) Power of Attorney (included on signature page).