-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Tf6N89vHdAu0NnkVioXZs6hp4cb4nN3mNGHVqoiOaLxySpgyeWxecToS7mwUI8Ly xOF/b1JAEKkoD2HI0ur5Kw== 0000950124-04-001574.txt : 20040412 0000950124-04-001574.hdr.sgml : 20040412 20040412161810 ACCESSION NUMBER: 0000950124-04-001574 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040412 EFFECTIVENESS DATE: 20040412 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BORDERS GROUP INC CENTRAL INDEX KEY: 0000940510 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-MISCELLANEOUS SHOPPING GOODS STORES [5940] IRS NUMBER: 383294588 STATE OF INCORPORATION: DE FISCAL YEAR END: 0126 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-114403 FILM NUMBER: 04728759 BUSINESS ADDRESS: STREET 1: 100 PHOENIX DRIVE CITY: ANN ARBOR STATE: MI ZIP: 48108 BUSINESS PHONE: (734) 477-1100 MAIL ADDRESS: STREET 1: 100 PHOENIX DRIVE CITY: ANN ARBOR STATE: MI ZIP: 48108 S-8 1 k84441sv8.txt REGISTRATION STATEMENT ON FORM S-8 ================================================================================ As filed with the Securities and Exchange Commission on April 12, 2004 Registration No. 333-______ UNITED STATES 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 38-3294588 (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. 2004 Long-Term Incentive Plan (Full Title of the Plan) Thomas D. Carney, Esq. Vice President, Secretary and General Counsel Borders Group, Inc. 100 Phoenix Drive Ann Arbor, Michigan 48108 (Name and Address of Agent For Service) (734) 477-1100 (Telephone Number, Including Area Code, of Agent For Service) CALCULATION OF REGISTRATION FEE
================================================================================================================== Title Of Each Class Of Proposed Maximum Proposed Maximum Securities To Be Amount To Be Offering Price Per Aggregate Offering Amount Of Registered Registered(1) Share(2) Price Registration Fee ================================================================================================================== Common Stock 3,000,000 $23.89 $71,670,000 $9,080.59 ==================================================================================================================
(1) This registration statement will also cover any additional shares of the registrant's common stock as may become issuable pursuant to the antidilution provisions of the Borders Group, Inc. 2004 Long-Term Incentive Plan. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) promulgated under the Securities Act of 1933, and based on the average high and low price of the registrant's common stock on the New York Stock Exchange on April 8, 2004. ================================================================================ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. Borders Group, Inc. (the "Company") 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 fiscal year ended January 25, 2004; (2) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report referred to in (1) above; and (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 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. The validity of the common stock being registered hereby will be passed upon for the Company by Thomas D. Carney, Esq., Vice President, Secretary and General Counsel of the Company. As of the date of this Registration Statement, Mr. Carney beneficially owns 18,346 shares of common stock of the Company and holds options to purchase 98,000 additional shares of common stock. Mr. Carney is eligible to participate in the Plan and may receive benefits under the Plan. Item 6. Indemnification of Directors and Officers. Article VIII of the Company's Restated Articles of Incorporation provides that the Company shall indemnify its directors and officers to the fullest extent authorized or permitted by the Michigan Business Corporation Act (the "MBCA"), and such right to indemnification shall continue as to a person who has ceased to be a director or officer of the Company. The Company is not obligated to indemnify any director or officer in connection with a proceeding initiated by such person unless the proceeding was authorized and consented to by the Board of Directors or unless the proceeding is to enforce rights to indemnification. 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 any 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 or her in connection with such action, suit or proceeding if the person acted in good faith and in a manner he or she 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, if the person 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 the person in connection with the action or suit, if the person acted in good faith and in a manner the person 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 for a claim, issue or matter in which the person has been found 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. Reasonable expenses (including attorneys' fees) incurred by a director, officer, 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 his or her behalf to repay the advance if it is ultimately determined that he or she is not entitled to be indemnified by the corporation and a written affirmation by such person of his or her good faith belief that he or she 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 VII of the Company's Restated Articles of Incorporation provides that 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 for (i) any breach of the director's duty of loyalty to the Company or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) a violation of Section 551(l) of the MBCA or (iv) any transaction from which the director derived an improper personal benefit. Item 7. Exemption From Registration Claimed. Not applicable. Item 8. Exhibits. 4.1(1) Restated Articles of Incorporation of Borders Group, Inc. 4.2(2) Restated Bylaws of Borders Group, Inc. 5 Opinion of Thomas D. Carney, Vice President, Secretary and General Counsel of the Company, with respect to the legality of the securities being registered hereunder. 23.1 Consent of Ernst & Young LLP. 23.2 Consent of Thomas D. Carney (included in Exhibit 5). 24 Power of Attorney (included in the signature page). 2 (1) Incorporated by reference from the Company's Annual Report on Form 10-K for the year ended January 24, 1999 (File No. 1-13740). (2) Incorporated by reference from the Company's Annual Report on Form 10-K for the year ended January 28, 2001 (File No. 1-13740). 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 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, 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 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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 registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this 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 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 Securities Act of 1933, each filing of the registrant'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 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 3 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 Act and will be governed by the final adjudication of such issue. 4 SIGNATURES 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 12th day of April, 2004. BORDERS GROUP, INC. By: /s/ Gregory P. Josefowicz ----------------------------------------- Gregory P. Josefowicz President, Chief Executive Officer and Director POWER OF ATTORNEY We, the undersigned officers and directors of Borders Group, Inc., hereby severally and individually constitute and appoint Gregory P. Josefowicz 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.
Name Title Date ---- ----- ---- /s/ Gregory P. Josefowicz Chairman, President and April 12, 2004 - ----------------------------------------------- Chief Executive Officer Gregory P. Josefowicz (Principal Executive Officer) Senior Vice President and Chief Financial /s/ Edward W. Wilhelm Officer (Principal Financial and Accounting April 12, 2004 - ----------------------------------------------- Officer) Edward W. Wilhelm /s/ Joel J. Cohen Director April 12, 2004 - ----------------------------------------------- Joel J. Cohen /s/ Robert F. DiRomualdo Director April 12, 2004 - ----------------------------------------------- Robert F. DiRomualdo /s/ Peter R. Formanek Director April 12, 2004 - ----------------------------------------------- Peter R. Formanek /s/ Amy B. Lane Director April 12, 2004 - ----------------------------------------------- Amy B. Lane /s/ Victor L. Lund Director April 12, 2004 - ----------------------------------------------- Victor L. Lund /s/ Edna Greene Medford Director April 12, 2004 - ----------------------------------------------- Edna Greene Medford /s/ George R. Mrkonic Director April 12, 2004 - ----------------------------------------------- George R. Mrkonic /s/ Lawrence I. Pollock Director April 12, 2004 - ----------------------------------------------- Lawrence I. Pollock /s/ Beth M. Pritchard Director April 12, 2004 - ----------------------------------------------- Beth M. Pritchard
5 EXHIBIT INDEX Exhibit No. Description 4.1(1) Restated Articles of Incorporation of Borders Group, Inc. 4.2(2) Restated Bylaws of Borders Group, Inc. 5 Opinion of Thomas D. Carney, Vice President, Secretary and General Counsel of the Company, with respect to the legality of the securities being registered hereunder. 23.1 Consent of Ernst & Young LLP. 23.2 Consent of Thomas D. Carney (included in Exhibit 5). 24 Power of Attorney (included in the signature page). (1) Incorporated by reference from the Company's Annual Report on Form 10-K for the year ended January 24, 1999 (File No. 1-13740). (2) Incorporated by reference from the Company's Annual Report on Form 10-K for the year ended January 28, 2001 (File No. 1-13740). EX-5 3 k84441exv5.txt OPINION OF THOMAS D. CARNEY EXHIBIT 5 April 12, 2004 Borders Group, Inc. 100 Phoenix Drive Ann Arbor, Michigan 48108 Re: Borders Group, Inc. 2004 Long-Term Incentive Plan Registration Statement on Form S-8 Ladies and Gentlemen: As general counsel for Borders Group, Inc., a Michigan corporation (the "Company"), I am acting as counsel to the Company in connection with the Registration Statement on Form S-8 with exhibits thereto (the "Registration Statement") filed by the Company under the Securities Act of 1933, as amended (the "Securities Act"), and the rules and regulations thereunder, relating to the registration of 3,000,000 shares of common stock (the "Shares") of the Company to be offered under the Borders Group, Inc. 2004 Long-Term Incentive Plan (the "Plan"). As such counsel, I have participated in the preparation of the Registration Statement and have reviewed the corporate proceedings in connection with the adoption and amendment of the Plan. I have also examined and relied upon originals or copies, certified or otherwise authenticated to my satisfaction, of all such public officials and of representatives of the Company, and have made such investigations of law, and have discussed with representatives of the Company and such other persons such questions of fact, as I have deemed proper and necessary as a basis for rendering this opinion. Based upon, and subject to, the foregoing, I am of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued by the Company pursuant to the terms of the Plan, will be validly issued, fully paid and nonassessable. I am admitted to practice in the State of Michigan, and I express no opinion as to matters governed by any laws other than the laws of the State of Michigan and the federal laws of the United States of America. I hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. In giving the foregoing consent, I do not admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder. Very truly yours, BORDERS GROUP, INC. /s/ Thomas D. Carney Thomas D. Carney Vice President, Secretary and General Counsel EX-23.1 4 k84441exv23w1.txt CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Borders Group, Inc. 2004 Long-Term Incentive Plan of our report dated March 11, 2004, with respect to the consolidated financial statements of Borders Group, Inc. included in its Annual Report (Form 10-K) for the year ended January 25, 2004, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Detroit, Michigan April 8, 2004 -----END PRIVACY-ENHANCED MESSAGE-----