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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): May 11, 2006
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ADVANCED MARKETING SERVICES, INC.
(Exact Name of Registrant as Specified in Charter)
Delaware 0-16002 95-3768341
(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
5880 Oberlin Drive, San Diego, California 92121
(Address of principal executive offices) (Zip Code)
(858) 457-2500
Registrant's telephone number, including area code
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Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
|_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
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Item 1.01 Entry Into a Material Definitive Agreement.
Amendment to Loan Agreement
On May 11, 2006, Advanced Marketing Services, Inc., a Delaware
corporation (the "Company"), Publishers Group West Incorporated, a California
corporation, and Publishers Group Incorporated, a California corporation
(collectively, the "Company Borrowers"), entered into an amendment effective as
of April 30, 2006 (the "Amendment") to that certain Loan and Security Agreement
dated April 27, 2004 (the "Loan Agreement"), by and among the Company Borrowers,
certain lenders, and Wells Fargo Foothill, Inc. ("Wells Fargo"), as amended by
Amendment Number One dated October 8, 2004 ("Amendment No. 1"); Amendment Number
Two dated February 28, 2005 ("Amendment No. 2"); Amendment Number Three dated
May 12, 2005 ("Amendment No. 3"); Amendment Number Four dated September 21, 2005
("Amendment No. 4"); Amendment Number Five dated November 16, 2005 ("Amendment
No. 5"); that certain letter agreement dated December 29, 2005 ("Amendment No.
6"); that certain letter agreement dated January 31, 2006 ("Amendment No. 7");
and that certain letter agreement dated March 16, 2006 ("Amendment No. 8"). The
Amendment amends the Loan and Security Agreement to extend the deadline to
deliver certain audited financial statements to May 31, 2006 for the fiscal year
ended March 31, 2004, and to September 30, 2006 for the fiscal years ended March
31, 2005 and March 31, 2006.
A copy of the Amendment is filed as Exhibit 10.1 to this report and is
incorporated herein by reference. A copy of the Loan Agreement was filed as an
exhibit to the Company's Current Report on Form 8-K filed with the Commission on
April 30, 2004, and is incorporated herein by reference. Copies of Amendments
No. 1 and No. 2 were filed as exhibits to the Company's Current Report on Form
8-K filed with the Commission on March 9, 2005, and are incorporated herein by
reference. A copy of Amendment No. 3 was filed as an exhibit to the Company's
Current Report on Form 8-K filed with the Commission on May 18, 2005, and is
incorporated herein by reference. A copy of Amendment No. 4 was filed as an
exhibit to the Company's Current Report on Form 8-K filed with the Commission on
September 26, 2005, and is incorporated herein by reference. A copy of Amendment
No. 5 was filed as an exhibit to the Company's Current Report on Form 8-K filed
with the Commission on November 22, 2005, and is incorporated herein by
reference. A copy of Amendment No. 6 was filed as an exhibit to the Company's
Current Report on Form 8-K filed with the Commission on January 9, 2006, and is
incorporated herein by reference. A copy of Amendment No. 7 was filed as an
exhibit to the Company's Current Report on Form 8-K filed with the Commission on
February 8, 2006, and is incorporated herein by reference. A copy of Amendment
No. 8 was filed as an exhibit to the Company's Current Report on Form 8-K filed
with the Commission on March 20, 2006, and is incorporated herein by reference.
The descriptions of the transactions contained in this report are qualified in
their entirety by reference to such exhibits.
Employment Agreement and Change of Control Agreement with Gary M. Rautenstrauch
Additionally, on May 15, 2006, the Company entered into an employment
agreement with Gary M. Rautenstrauch (the "Employment Agreement") in connection
with his appointment as President and Chief Executive Officer of the Company (as
described below under Item 5.02). The term of the Employment Agreement expires
on May 15, 2008 (the "Term") and may be earlier terminated by either party at
any time, with or without cause upon written notice to the other, subject to
payment in certain circumstances of the amounts described below, and provided
that if the Company terminates Mr. Rautenstrauch without cause more than
twenty-one (21) months after the commencement of his employment, it will be
required to provide him with three (3) months' notice.
Under the Employment Agreement, Mr. Rautenstrauch will receive a base
salary at an annual rate of $450,000. Mr. Rautenstrauch will also receive a
$50,000 bonus which will be reduced by any bonus he receives from his prior
employer and which must be returned in the event that he voluntarily terminates
his employment or is terminated for cause within one year of the start of his
employment. Additionally, Mr. Rautenstrauch will be eligible for a discretionary
annual bonus targeted at 50% of his base salary, pro rated for the remaining ten
and one-half months of fiscal year 2007 upon meeting certain objectives set by
the Company's Board of Directors, and in fiscal year 2008, he will again be
eligible for a discretionary annual bonus targeted at 50% of his base salary
upon meeting certain objectives set by the Company's Board of Directors. These
bonuses may be more or less than the targeted amounts, based on the achievement
of the agreed upon goals. Mr. Rautenstrauch will also receive within 90 days of
the date of the agreement options to purchase 100,000 shares of the Company's
common stock with an exercise price per share equal to the closing price of the
Company's common stock on the grant date. These stock options will vest in equal
annual installments of 20% on each anniversary of the grant date. The Company
will also provide Mr. Rautenstrauch with a temporary living allowance during the
first year after the date of the Employment Agreement and will reimburse him for
any expenses incurred in relocating, grossed up for applicable state and federal
income taxes, during the term of the Employment Agreement.
Under the Employment Agreement, if (i) the Company terminates Mr.
Rautenstrauch's employment other than for cause or (ii) Mr. Rautenstrauch
terminates his employment as a result of (a) a reduction in his salary or
benefits, (b) a material change in his responsibilities or (c) a change in
location of his principal place of employment (collectively, "Good Reason"), Mr.
Rautenstrauch will be entitled to (i) continued payment of his then current base
salary for the remainder of the Term and (ii) additional severance payments in
accordance with the Company's policies for senior executives in effect at the
time of termination and in any event no less than six months' base salary.
In addition, the Company and Mr. Rautenstrauch have entered into a
change of control agreement, effective May 15, 2006 (the "Change in Control
Agreement"). The Change in Control Agreement expires on May 15, 2007, and will
be automatically extended for additional one-year periods unless the Company
provides Mr. Rautenstrauch with six months' notice prior to the end of the
initial term or any extension term. The Change in Control Agreement provides
that if (i) Mr. Rautenstrauch is employed by the Company on a full-time basis
during a Protected Period (as defined below), (ii) a change of control
subsequently occurs and (iii) Mr. Rautenstrauch (a) is discharged by the Company
for any reason other than for cause prior to the one year anniversary of the
change of control, (b) terminates his employment with the Company as a result of
a failure of any successor company to assume the Change in Control Agreement or
for Good Reason prior to the one year anniversary of the change of control or
(c) terminates his employment with the Company for any reason, or for no reason,
upon not less than 90 days' prior written notice to the Company, during the
period commencing on the one year anniversary of the change of control and
ending on the 30th day following the one year anniversary of the change of
control, then any of Mr. Rautenstrauch's unvested equity awards and or unvested
amounts in the Company's Deferred Compensation Plan will vest and Mr.
Rautenstrauch will be entitled to a Severance Payment (as defined below). A
Protected Period is defined as the period beginning (i) in the case of a tender
offer, on the date of the initial tender offer, (ii) in the case of a merger,
consolidation or reorganization, on the date on which serious discussions of
such merger, consolidation or reorganization first take place, or (iii) for any
other change of control, six months prior to such change in control. Severance
Payment is defined as an amount equal to the sum of (a) two times Mr.
Rautenstrauch's base salary then in effect for the fiscal year in which a change
of control occurs, and (b) 200% of Mr. Rautenstrauch's target bonus, at budget,
for the fiscal year in which a change of control occurs.
A copy of the Employment Agreement and the Change in Control Agreement
between Advanced Marketing Services, Inc., and Gary M. Rautenstrauch is filed as
Exhibit 10.2 to this report and is incorporated herein by reference.
Item 5.02 Departure of Directors or Principal Officers; Election of Directors;
Appointment of Principal Officers.
On May 15, 2006, the Company announced the appointment of Mr.
Rautenstrauch as President and Chief Executive Officer of the Company.
Mr. Rautenstrauch spent 22 years with Baker & Taylor, a wholesale
distributor of books, video and music products and services to retailers and
libraries, and was that company's president and chief executive officer from
2001 through 2003. During his career with Baker & Taylor, Mr. Rautenstrauch held
numerous positions with the company and its subsidiaries, including executive
vice president for technology, executive vice president for distribution, and
chief operating officer. Most recently, from August 2005 until May 2006, Mr.
Rautenstrauch was the chief executive officer of Blackwell's Book Services, a
supplier of books and services to academic and research libraries. Between his
time at Baker & Taylor and Blackwell's, Mr. Rautenstrauch served in various
consulting capacities.
Mr. Rautenstrauch, who is 52, holds an MBA in finance from New York
University and a bachelor's degree in accounting from the University of Miami.
The description of Mr. Rautenstrauch's Employment Agreement and Change
in Control Agreement in Item 1.01 above is incorporated in this Item 5.02 by
reference.
A copy of the public announcement is filed as Exhibit 99.1 to this
report and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits.
10.1 Amendment to Loan and Security Agreement, effective as of April
30, 2006
10.2 Employment Agreement and Change of Control Agreement, dated May
15, 2006, between Advanced Marketing Services, Inc., and Gary M.
Rautenstrauch
99.1 Public Announcement of Advanced Marketing Services, Inc., dated
May 15, 2006
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: May 17, 2006 Advanced Marketing Services, Inc.
/s/ Curtis R. Smith
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Curtis R. Smith
Executive Vice President and
Chief Financial Officer
EXHIBIT LIST
Exhibit No. Exhibit
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10.1 Amendment to Loan and Security Agreement, effective as of
April 30, 2006
10.2 Employment Agreement and Change of Control Agreement, dated
May 15, 2006, between Advanced Marketing Services, Inc., and
Gary M. Rautenstrauch
99.1 Public Announcement of Advanced Marketing Services, Inc.,
dated May 15, 2006