-----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, GpNg7alIu0yhYoqyQkGYBmsqpKjc01u3fT7bJ3zm05Pyja5u2cqZUDvFfHJQQ6IR bWYlFxPsaGB5oh0wxEgMUA== 0000903893-96-000395.txt : 19960621 0000903893-96-000395.hdr.sgml : 19960621 ACCESSION NUMBER: 0000903893-96-000395 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19960620 EFFECTIVENESS DATE: 19960709 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: BAILEY CORP CENTRAL INDEX KEY: 0000753237 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLE PARTS & ACCESSORIES [3714] IRS NUMBER: 133229215 STATE OF INCORPORATION: DE FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-06393 FILM NUMBER: 96583459 BUSINESS ADDRESS: STREET 1: 700 LAFAYETTE RD STREET 2: P O BOX 307 CITY: SEABROOK STATE: NH ZIP: 03874 BUSINESS PHONE: 6034743011 MAIL ADDRESS: STREET 2: 700 LAFAYETTE RD CITY: SEABROOK STATE: NH ZIP: 03874 FORMER COMPANY: FORMER CONFORMED NAME: EDUTECH VENTURES INC DATE OF NAME CHANGE: 19860205 S-8 1 FORM S-8 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Bailey Corporation - -------------------------------------------------------------------------------- (Exact name of issuer as specified in its charter) Delaware 13-3229215 - -------------------------------------------------------------------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 700 Lafayette Road, P.O. Box 307, Seabrook, New Hampshire 03874 - -------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) LETTER AGREEMENTS BETWEEN THE REGISTRANT AND CERTAIN INDIVIDUALS DATED OCTOBER 6, 1995 (63 SEPARATE EMPLOYEE BENEFIT PLANS) LETTER AGREEMENT BETWEEN THE REGISTRANT AND ROBERT DUTEAU DATED NOVEMBER 14,1995 LETTER AGREEMENT BETWEEN THE REGISTRANT AND JON SCHOPF DATED NOVEMBER 23, 1995 LETTER AGREEMENT BETWEEN THE REGISTRANT AND ANTHONY A. MARTINO DATED JANUARY 12, 1996 (Full title of the plans) Roger R. Phillips President and Chief Executive Officer Bailey Corporation 700 Lafayette Road, P.O. Box 307 Seabrook, New Hampshire 03874 (603) 474-3011 - -------------------------------------------------------------------------------- (Name and address, including zip code, and telephone number, including area code, of agent for service) WITH A COPY TO: David A. Broadwin, Esquire Foley, Hoag & Eliot One Post Office Square Boston, Massachusetts 02109 (617) 832-1000 - -------------------------------------------------------------------------------- CALCULATION OF REGISTRATION FEE ================================================================================ Proposed Title of Proposed Maximum Securities Amount Maximum Aggregate Amount of to be to be Offering Price Offering Registration Registered Registered Per Share Price Fee - -------------------------------------------------------------------------------- Common Stock 536,600 $4.76 (2) $2,554,216 (2) $881 (2) (par value $0.10) shares(1) - -------------------------------------------------------------------------------- (1) Represents shares issuable upon exercise of stock options granted to certain employees of and consultants to the Registrant pursuant to the above listed letter agreements between the Registrant and such employees and consultants. (2) Calculated pursuant to Rule 457(h) based on the exercise price of such options outstanding at June 20, 1996. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed with the Securities and Exchange Commission (the "Commission") are incorporated in this Registration Statement by reference: (a) the Company's Annual Report on Form 10-K for the year ended July 30, 1995, File No. 1-9411; (b) the Company's Quarterly Report on Form 10-Q for the quarter ended October 29, 1995, File No. 1-9411; (c) the Company's Quarterly Report on Form 10-Q for the quarter ended January 28, 1996, file No. 1-9411; (d) the Company's Quarterly Report on Form 10-Q for the quarter ended April 28, 1996, file No. 1-9411; (e) the Company's Current Report on Form 8-K filed with the Commission on June 20, 1996; (f) the Company's Current Report on Form 8-K filed with the Commission on October 2, 1995; (g) the Company's Registration Statement on Form 8-A filed with the Commission on October 2, 1995, as amended by Amendment No. 1 on Form 8-A/A filed with the Commission on June 20, 1996; and (h) the description of the Company's Common Stock contained in the Registration Statement on Form 8-A dated February 5, 1987, filed under Section 12 of the Securities Exchange Act of 1934, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. II-1 ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The validity of the securities registered hereby is being passed upon for the Company by Foley, Hoag & Eliot LLP, Boston, Massachusetts. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law provides that any person made a party, or threatened to be made a party, to any threatened, pending or completed action by reason of the fact that he is or was a director, officer, employee or agent of the Company may and, in certain cases, must be indemnified by the Company against, in the case of a non-derivative action, judgments, fines, amounts paid in settlement and expenses (including attorney's fees) reasonably incurred by him as a result of such action, and in the case of a derivative action, against reasonable expenses (including attorneys' fees), if in either type of action he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. This indemnification does not apply, in the case of derivative actions, to matters as to which it is adjudged that the director, officer, employee or agent is liable to the Company, unless upon court order it is determined that, despite such adjudication of liability, but in view of all the circumstances of the case, he is fairly and reasonably entitled to indemnity for expenses; and in the case of non-derivative actions, to any criminal proceeding in which the director, officer, employee or agent had reasonable cause to believe his conduct was unlawful. Article Ninth, Section 1 of the Registrant's Amended Certificate of Incorporation in effect provides that the Registrant shall indemnify each person whom it has the power to indemnify under Section 145 of the Delaware General Corporation Law to the fullest extent permitted by said section. Article Ninth, Section 2 of the Registrant's Amended Certificate of Incorporation provides that, to the fullest extent permitted by the Delaware Corporation Law, no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except (i) for any breach of the duty of loyalty to the Registrant or to its stockholders; (ii) for acts or omissions not II-2 in good faith or which involve intentional misconduct or knowing violation of law, (iii) for any transaction from which the director derived an improper personal benefit and (iv) liability under Section 174 of the Delaware Corporation Law relating to certain unlawful dividends and stock purchases and redemptions. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. 5.1 Opinion of Counsel 23.1 Consent of Independent Accountants 23.2 Consent of Counsel (included in Exhibit 5.1) 24.1 Power of Attorney (contained on the signature page) ITEM 9. UNDERTAKINGS. 1. 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 2. The undersigned Registrant hereby undertakes: (a) 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-3 (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; and (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 2 (a)(1)(i) and 2 (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 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 herein. (b) 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) 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. 3. 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 asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its II-4 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. II-5 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 Seabrook, New Hampshire, on this 20th day of June, 1996. BAILEY CORPORATION By:/s/Roger R. Phillips ------------------------------ Roger R. Phillips President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints Roger R. Phillips, Leonard J. Heilman and David A. Broadwin, and each of them, his true and lawful attorneys-in-fact and agents with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing which he may deem necessary or advisable to be done in connection with this Registration Statement, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or any substitute or substitutes for any or all of them, may lawfully do or cause to be done by virtue hereof. 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 dates indicated. Signature Title Date - --------- ----- ---- /s/Roger R. Phillips Chairman of the June 20, 1996 - -------------------- Board, President, Roger R. Phillips Chief Executive Officer and Secretary (Principal Executive Officer) II-6 /s/Leonard J. Heilman Executive Vice President June 20, 1996 - --------------------- Finance and Administra- Leonard J. Heilman tion, Treasurer and Assistant Secretary (Principal Financial and Accounting Officer) /s/E. Gordon Young Director June 20, 1996 - ---------------------- E. Gordon Young /s/Louis T. Enos Director June 20, 1996 - ---------------------- Louis T. Enos /s/Allan B. Freedman Director June 20, 1996 - ---------------------- Allan B. Freedman /s/John G. Owens Director June 20, 1996 - ---------------------- John G. Owens /s/William A. Taylor Director June 20, 1996 - ---------------------- William A. Taylor II-7 EXHIBIT INDEX Exhibit No. Description Page --- ----------- ---- 5.1 Opinion of Counsel 23.1 Consent of Independent Accountants 23.2 Consent of Counsel (included in Exhibit 5.1) 24.1 Power of Attorney (contained on the signature page) EX-99 2 5.1 [LETTERHEAD OF FOLEY, HOAG & ELIOT] June 20, 1996 Bailey Corporation 700 Lafayette Road P.O. Box 307 Seabrook, NH 03874 Ladies and Gentlemen: We are familiar with the Registration Statement on Form S-8 (the "S-8 Registration Statement") filed today by Bailey Corporation, a Delaware corporation (the "Company"), with the Securities and Exchange Commission under the Securities Act of 1933, as amended. The S-8 Registration Statement relates to the proposed offering by the Company of 536,600 shares (the "Shares") of its Common Stock, $0.10 par value per share ("Common Stock"), issuable pursuant to the Letter Agreements between the Company and certain employees of and consultants to the Company (the "Letter Agreements"). In arriving at the opinion expressed below, we have examined and relied on the following documents: 1. The Amended Certificate of Incorporation and the Amended and Restated By-Laws of the Company. 2. The records of meetings and consents of the Board of Directors and stockholders of the Company provided to us by the Company. 3. The Letter Agreements. In addition, we have examined and relied on the originals or copies certified or otherwise identified to our satisfaction of all such corporate records of the Company and such other instruments and other certificates of public officials, officers and representatives of the Company and such other persons, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinion expressed below. Bailey Corporation June 20, 1996 Page 2 Based upon the foregoing, it is our opinion that: 1. The Company has corporate power adequate for the issuance of the Shares in accordance with the S-8 Registration Statement. 2. The Company has taken all necessary corporate action required to authorize the issuance and sale of the Shares. 3. When certificates for the Shares have been duly executed and counter-signed, and delivered against due receipt of the exercise price for the Shares as described in the Letter Agreements, the Shares will be legally-issued, fully-paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the S-8 Registration Statement. Very truly yours, FOLEY, HOAG & ELIOT LLP By:/s/ David A. Broadwin -------------------------- a partner EX-23.1 3 CONSENT OF ACCOUNTANTS [LETTERHEAD OF KPMG PEAT MARWICK LLP] Exhibit 23.1 The Board of Directors Bailey Corporation We consent to the use of our report incorporated herein by reference and to the reference to our firm under the heading "Experts" in the registration statement on Form S-8. KPMG Peat Marwick LLP Boston, Massachusetts June 19, 1996 -----END PRIVACY-ENHANCED MESSAGE-----