Registration No. 333-
As filed with the Securities and Exchange Commission on September 6, 2002
------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
ADVANCED MARKETING SERVICES, INC
--------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 95-3768341-9
------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5880 OBERLIN DRIVE, SUITE 400, SAN DIEGO, CALIFORNIA 92121
---------------------------------------------------- -----------
(Address of Principal Executive Offices) (Zip Code)
1995 STOCK OPTION PLAN
------------------------
(Full title of the plan)
Charles C. Tillinghast, III
Advanced Marketing Services, Inc.
5880 OBERLIN DRIVE, SUITE 400, SAN DIEGO, CALIFORNIA 92121
--------------------------------------------------------------------------------
(Name and address of agent for service)
(858) 457-2500
--------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
Copy to: Theodore H. Latty, Esq.
Hughes Hubbard & Reed LLP
350 South Grand Avenue, Suite 3600
Los Angeles, California 90071-3442
CALCULATION OF REGISTRATION FEE
Title of
Securities Amount Proposed Maximum Proposed Amount of
to be to be Offering Price Maximum Aggregate Registration
Registered Registered Per Share Offering Price Fee
----------------- ----------------- ---------------- ----------------- -----------------
Common Stock,
par value 400,000 shares $13.6 $5,440,000.00 $1,436.20
$.001 per share
----------------- ----------------- ---------------- ----------------- -----------------
(see footnotes on following page)
FOOTNOTES
-----------
In addition, pursuant to Rule 416 under the Securities Act of 1933, this
Registration Statement also covers an indeterminate number of additional shares
as may be issuable pursuant to stock splits, stock dividends or similar
transactions.
The proposed maximum offering price per share and the proposed maximum aggregate
offering price are calculated solely for the purpose of determining the
registration fee based on the average of the high and low prices of the common
stock, par value $.001 per share, of the Registrant (the "Common Stock"), as
reported on the New York Stock Exchange on September 4, 2002, in accordance with
Rule 457(h)(1) under the Securities Act of 1933.
Securities offered and sold under the Plan which are the subject of this
Registration Statement were also registered by means of Registration Statements
on Form S-8, No. 333-01155, No. 333-59343, No. 333-42854 and No. 333-67244,
filed with the Securities and Exchange Commission on February 22, 1996, July 17,
1998, August 2, 2000 and August 10, 2001, respectively (the "Prior Registration
Statements"), the contents of each of which are incorporated by this reference
in this Registration Statement. The number of shares of Common Stock issuable
pursuant to options under the Plan was increased by virtue of (i) a
three-for-two stock split effective on February 15, 1999 to stockholders of
record at the close of business on February 1, 1999, (ii) a three-for-two stock
split effective on January 17, 2000 to stockholders of record at the close of
business on January 3, 2000 and (iii) a three-for-two stock split effective on
May 11, 2001 to stockholders of record at the close of business on April 27,
2001. Prospectus documents used in connection with this Registration Statement
will also apply with respect to the Prior Registration Statements.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The documents listed in (a) through (c) below, as filed by Advanced
Marketing Services, Inc. (the "Company") under the Securities Exchange Act of
1934 (the "Exchange Act"), are incorporated by reference in this Registration
Statement:
(a) The Company's Annual Report on Form 10-K, filed pursuant to
Section 13(a) or 15(d) of the Exchange Act, for the fiscal year ended March 31,
2002;
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since March 31, 2002; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, SEC File No. 001-16199, filed on
October 30, 2000 pursuant to Section 12(b) of the Exchange Act, and any
amendment or report filed for the purpose 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 after the date of this Registration
Statement and 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 by
reference in this Registration Statement and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under its Certificate of Incorporation and Bylaws, the Company is
required to indemnify its directors and officers to the fullest extent
authorized by Delaware law. Section 145 of the General Corporation Law of the
State of Delaware (the "Delaware GCL") currently permits indemnification of a
corporate officer or director against expenses and other liabilities if he or
she 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 Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful; provided, however, that if the action or proceeding is by
or in the right of the Company, indemnification shall not be made in respect of
any claim, issue or matter as to which the officer or director shall have been
found liable to the Company unless and only to the extent that the court in
which such action was brought determines that, in view of all the circumstances
of the case, the person is fairly and reasonably entitled to indemnity for such
expenses (but not other liabilities) as the court shall deem proper. To the
extent that a person is successful on the merits or otherwise in defense of
certain actions, the Delaware GCL requires the Company to indemnify the person
for his actual and reasonable expenses incurred in connection with such defense.
Under the Delaware GCL and the Bylaws, the Company may advance expenses of such
a person in defending an action, provided that such advancement of expenses may
be made only if the person provides an undertaking to reimburse the Company if
it is ultimately determined that the person is not entitled to be indemnified
against such expenses. Consistent with such statutory provisions, the Company
generally enters into written indemnity agreements with its executive officers
and directors.
In certain circumstances, certain provisions of the General
Corporation Law of the State of California (the "California GCL"), including
provisions relating to the indemnification of officers and directors, may be
applicable to the affairs of the Company to the exclusion of the Delaware GCL.
In such event, the Company's Certificate of Incorporation and Bylaws require the
Company to indemnify its directors and officers to the fullest extent permitted
by California law. The requirements of the California GCL relating to the
indemnification of officers and directors are similar in material respects to
the requirements of Delaware law described above.
The provisions of the Delaware GCL and the California GCL relating
to the indemnification of directors and officers are sufficiently broad to
permit the indemnification of such persons in certain circumstances against
liabilities (including reimbursement of expenses incurred) arising under the
Securities Act of 1933 (the "Securities Act").
The Plan to which this Registration Statement relates requires the
Company to indemnify its directors against liabilities, costs and expenses which
may be incurred in connection with the administration of the plan, other than
liabilities, costs and expenses that result from negligence, bad faith, willful
misconduct or criminal acts of such directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
NUMBER DESCRIPTION METHOD OF FILING
------ ----------- ----------------
4.1 Certificate of Incorporation, as Incorporated by reference to the
amended, of the Company Company's Registration Statement
on Form S-8, No. 333-67244,
filed August 10, 2001
4.2 Bylaws, as amended, of the Company Incorporated by reference to the
Company's Registration Statement
on Form S-8, No. 333-67244,
filed August 10, 2001
4.3 Amendment to 1995 Stock Option Plan Filed herewith
5.1 Opinion of Hughes Hubbard & Reed Filed herewith
LLP
23.1 Consent of Deloitte & Touche LLP Filed herewith
23.2 Consent of Hughes Hubbard & Reed Contained in Exhibit 5.1
LLP
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 of 1933;
(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,
represents a fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in this 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 Company 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 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 of 1933, each filing of the Company'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 this 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
Company pursuant to the foregoing provisions, or otherwise, the Company 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 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 Act and will be governed by the final adjudication of
such issue.
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 San Diego, State of California, on September 5,
2002.
ADVANCED MARKETING SERVICES, INC.
By: /s/ Charles C. Tillinghast, III
------------------------------------
Charles C. Tillinghast, III
Chairman of the Board
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.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ Charles C. Tillinghast, III Chairman of the Board and September 5, 2002
----------------------------------- Director
Charles C. Tillinghast, III
/s/ Michael M. Nicita Chief Executive Officer and September 5, 2002
----------------------------------- Director
Michael M. Nicita (principal executive officer)
/s/ Edward J. Leonard Executive Vice President, September 5, 2002
----------------------------------- Chief Financial Officer,
Edward J. Leonard and Secretary (principal financial
and accounting officer)
/s/ Robert F. Bartlett Director September 5, 2002
-----------------------------------
Robert F. Bartlett
/s/ Loren C. Paulsen Director September 5, 2002
-----------------------------------
Loren C. Paulsen
/s/ Lynn S. Dawson Director September 5, 2002
-----------------------------------
Lynn S. Dawson
/s/ Bruce E. Grout Director September 5, 2002
-----------------------------------
Bruce E. Grout
/s/ James A. Leidich Director September 5, 2002
-----------------------------------
James A. Leidich
/s/ Trygve E. Myhren Director September 5, 2002
-----------------------------------
Trygve E. Myhren
/s/ E. William Swanson Director September 5, 2002
-----------------------------------
E. William Swanson
EXHIBIT INDEX
NUMBER DESCRIPTION METHOD OF FILING PAGE
------ ----------- ---------------- ----
4.1 Certificate of Incorporation, as Incorporated by reference to -
amended, of the Company the Company's Registration
Statement on Form S-8,
No. 333-67244,
filed August 10, 2001
4.2 Bylaws, as amended, of the Company Incorporated by reference to -
the Company's Registration
Statement on Form S-8,
No. 333-67244,
filed August 10, 2001
4.3 Amendment to 1995 Stock Option Plan Filed herewith 9
5.1 Opinion of Hughes Hubbard & Reed LLP Filed herewith 10
23.1 Consent of Deloitte & Touche LLP Filed herewith 12
THE CONSENT OF ARTHUR ANDERSEN LLP TO THE INCLUSION OF ITS REPORT OF
INDEPENDENT PUBLIC ACCOUNTANTS ON OUR CONSOLIDATED FINANCIAL STATEMENTS
AS OF MARCH 31, 2001 AND FOR EACH OF THE TWO YEARS ENDED MARCH 31, 2001
AND 2000 IS OMITTED PURSUANT TO RULES PROMULGATED BY THE SECURITIES AND
EXCHANGE COMMISSION. THERE MAY BE RISKS AND YOUR RECOVERY MAY BE
LIMITED AS A RESULT OF OUR PRIOR USE OF ARTHUR ANDERSEN LLP AS OUR
INDEPENDENT PUBLIC ACCOUNTING FIRM. ON MARCH 14, 2002, ARTHUR ANDERSEN
LLP, OUR INDEPENDENT PUBLIC ACCOUNTING FIRM FOR THE YEARS ENDED MARCH
31, 1981 THROUGH 2001, WAS INDICTED ON FEDERAL OBSTRUCTION OF JUSTICE
CHARGES ARISING FROM THE US GOVERNMENT'S INVESTIGATION OF ENRON. ON
MARCH 27, 2002, WE DISMISSED ARTHUR ANDERSEN LLP AS OUR INDEPENDENT
PUBLIC ACCOUNTANTS AND ON APRIL 8, 2002 HIRED DELOITTE & TOUCHE LLP AS
OUR INDEPENDENT PUBLIC ACCOUNTANTS FOR THE YEAR ENDING MARCH 31, 2002.
AS A PUBLIC COMPANY, WE ARE REQUIRED TO FILE WITH THE SEC PERIODIC
FINANCIAL STATEMENTS AUDITED OR REVIEWED BY AN INDEPENDENT PUBLIC
ACCOUNTANT, INCORPORATED HEREIN. BECAUSE OUR FORMER AUDIT PARTNER HAS
LEFT ARTHUR ANDERSEN LLP, WE HAVE NOT BEEN ABLE TO OBTAIN THE WRITTEN
CONSENT OF ARTHUR ANDERSEN LLP AS REQUIRED BY SECTION 7 OF THE
SECURITIES ACT AFTER REASONABLE EFFORTS. ACCORDINGLY, INVESTORS WILL
NOT BE ABLE TO SUE ARTHUR ANDERSEN LLP PURSUANT TO SECTION 11(A)(4) OF
THE SECURITIES ACT AND THEREFORE MAY HAVE THEIR RECOVERY LIMITED AS A
RESULT OF THE LACK OF CONSENT.
23.2 Consent of Hughes Hubbard & Reed LLP Contained in Exhibit 5.1 -