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As filed with the Securities and Exchange Commission on August 30, 1996
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
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EINSTEIN/NOAH BAGEL CORP.
(Exact name of Registrant as specified in its charter)
DELAWARE 84-1294908
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
14123 DENVER WEST PARKWAY
P.O. BOX 4086
GOLDEN, COLORADO 80401
(303) 215-9300
(Address of Registrant's Principal Executive Offices)
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EINSTEIN/NOAH BAGEL CORP. AMENDED AND
RESTATED 1995 STOCK OPTION PLAN
AND
EINSTEIN/NOAH BAGEL CORP. 1996 STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
(Full Title of the Plans)
PAUL A. STRASEN COPIES TO:
VICE PRESIDENT AND GENERAL COUNSEL KEVIN J. MCCARTHY
EINSTEIN/NOAH BAGEL CORP. BELL, BOYD & LLOYD
14123 DENVER WEST PARKWAY 70 WEST MADISON STREET
GOLDEN, COLORADO 80401 CHICAGO, ILLINOIS 60602
(303) 215-9300 (312) 372-1121
(Name, Address, and Telephone Number,
Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
=====================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 3,569,436 Shares (1)(2) $ 6.8932 $ 24,604,836.24 $ 8,484.42
- ---------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share 1,725,759 Shares (1)(3) $26.8125 (4) $46,271,913.19 (4) $15,955.83
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This registration statement also covers an indeterminate number of shares
of Common Stock which may be issuable under the antidilution and other
adjustment provisions of the respective plans pursuant to Rule 416(a) of
the Securities Act of 1933, as amended (the "Securities Act").
(2) This amount reflects an aggregate of 3,569,436 shares of Common Stock
which are issuable pursuant to options granted at a weighted average
exercise price of $6.8932 per share under the following plans: the
Einstein/Noah Bagel Corp. Amended and Restated 1995 Stock Option Plan (the
"Plan") -- 3,556,482 shares; and the Einstein/Noah Bagel Corp. 1996 Stock
Option Plan for Non-Employee Directors (the "Directors' Plan") -- 12,954
shares.
(3) This amount reflects an aggregate of 1,725,759 shares of Common Stock
which are issuable under the following plans: the Plan -- 1,638,713
shares; and the Directors' Plan -- 87,046 shares.
(4) Estimated in accordance with Rule 457(h) solely for purposes of
calculating the registration fee and based upon the average of the high
and low sale prices of the Common Stock on the Nasdaq National Market on
August 23, 1996, as reported in The Wall Street Journal (Western
Edition).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be included herewith.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be included herewith.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. DOCUMENTS INCORPORATED BY REFERENCE.
This registration statement on Form S-8 relates to the registration of
shares of common stock of Einstein/Noah Bagel Corp. (the "Company"), $.01 par
value per share (the "Common Stock").
The Company incorporates herein by reference the following documents
heretofore filed by the Company with the Securities and Exchange Commission:
(1) The Company's Prospectus dated August 1, 1996 filed pursuant to
Rule 424(b) under the Securities Act on August 5, 1996, as supplemented on
August 6, 1996;
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended July 14, 1996; and
(3) The description of the Company's Common Stock set forth under
the caption "Description of Capital Stock" in the Company's Prospectus
described in (1) above, which description is incorporated by reference in
the Company's registration statement on Form 8-A filed on July 26, 1996,
for the registration of the Common Stock under Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including all amendments thereto.
All documents subsequently 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 to this registration statement which indicates that all of
the securities offered hereby have been sold or which deregisters all of such
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 filing of such documents. Any statement, including financial statements,
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 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.
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes
indemnification of directors, officers, employees, and agents of the Company;
allows the advancement of costs of defending against litigation; and permits
companies incorporated in Delaware to purchase insurance on behalf of directors,
officers, employees,
2
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and agents against liabilities whether or not in the circumstances such
companies would have the power to indemnify against such liabilities under
the provisions of the statute.
The Company's Restated Certificate of Incorporation provides for
indemnification of the Company's officers and directors to the fullest
extent permitted by Section 145 of the Delaware General Corporation Law. The
Company has obtained directors and officers insurance covering its executive
officers and directors.
The Company's Restated Certificate of Incorporation eliminates, to the
fullest extent permitted by Delaware law, liability of a director to the
Company or its stockholders for monetary damages for a breach of such
director's fiduciary duty of care except for liability where a director (a)
breaches his or her duty of loyalty to the Company or its stockholders, (b)
fails to act in good faith or engages in intentional misconduct or knowing
violation of law, (c) authorizes payment of an illegal dividend or stock
repurchase, or (d) obtains an improper personal benefit. While liability for
monetary damages has been eliminated, equitable remedies such as injunctive
relief or rescission remain available. In addition, a director is not
relieved of his or her responsibilities under any other law, including the
federal securities laws.
Insofar as indemnification by the Company for liabilities arising under
the Securities Act, may be permitted to directors, officers, and controlling
persons of the Company pursuant to the foregoing provisions, 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 Securities
Act and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable
ITEM 8. EXHIBITS
The exhibits to this registration statement are listed in the Exhibit
Index which appears elsewhere herein and is hereby incorporated by
reference.
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;
(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;
(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 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 Company pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities 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 which remain unsold at the
termination of the offering.
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(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company'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)-(g) Inapplicable.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling
persons of the Company pursuant to the provisions described under Item 6
above 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 Securities 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 Securities Act and will be
governed by the final adjudication of such issue.
(i)-(j) Inapplicable.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company 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, or amendment thereto, to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Golden, State of
Colorado, on August 29, 1996.
EINSTEIN/NOAH BAGEL CORP.
By: /s/ Mark R. Goldston
-----------------------------------
Mark R. Goldston
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement, or amendment thereto, has been signed by the
following persons in the capacities indicated on August 29, 1996.
SIGNATURE TITLE
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/s/ Mark R. Goldston President and Chief Executive Officer
------------------------------ (Principal Executive Officer)
Mark R. Goldston
/s/ W. Eric Carlborg Senior Vice President--Finance (Principal
------------------------------ Financial and Accounting Officer)
W. Eric Carlborg
Director
------------------------------
Noah C. Alper
/s/ Scott A. Beck Director
------------------------------
Scott A. Beck
Director
------------------------------
Kyle T. Craig
/s/ M. Laird Koldyke Director
------------------------------
M. Laird Koldyke
/s/ Gail A. Lozoff Director
------------------------------
Gail A. Lozoff
/s/ John H. Muehlstein, Jr. Director
------------------------------
John H. Muehlstein, Jr.
/s/ John A. Offerdahl Director
------------------------------
John A. Offerdahl
/s/ Lloyd D. Ruth Director
------------------------------
Lloyd D. Ruth
/s/ David G. Stanchak Director
------------------------------
David G. Stanchak
5
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EXHIBIT 5.1
August 30, 1996
Einstein/Noah Bagel Corp.
14123 Denver West Parkway
Golden, Colorado 80401
Einstein/Noah Bagel Corp. Amended and
Restated 1995 Stock Option Plan and
Einstein/Noah Bagel Corp. 1996 Stock Option
Plan for Non-Employee Directors
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Einstein/Noah Bagel Corp., a Delaware
corporation (the "Company"), in connection with the preparation, execution,
and filing of the registration statement on Form S-8 of the Company (the
"Registration Statement"), which covers an aggregate of 5,295,195 shares
(the "Shares") of common stock, $.01 par value per share (the "Common
Stock") of the Company, offered under the Company's Amended and Restated
1995 Stock Option Plan and 1996 Stock Option Plan for Non-Employee Directors
(collectively, the "Plans"). We have examined originals, or copies
certified or otherwise identified to our satisfaction, of the Plans and such
other documents, corporate and other records, certificates, and other papers
as we deemed it necessary to examine for the purposes of this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and legally existing under
the laws of the State of Delaware.
2. The Company has taken all action necessary to authorize (i) the Plans,
(ii) the granting of options pursuant to the Plans, and (iii) the
issuance of shares of its Common Stock in accordance with the Plans and
upon the exercise of options granted pursuant to the Plans.
3. The Shares, when issued and paid for in accordance with the Plans and
upon the exercise of options granted pursuant to the Plans will, upon
such issuance, constitute legally issued, fully paid, and nonassessable
shares of Common Stock.
We hereby consent to the filing of this Opinion Letter as an exhibit to
the Registration Statement for the registration of the Shares under the
Securities Act of 1933, as amended. In giving this consent, we do not admit
that we are within the category of persons whose consent is required by
Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Bell, Boyd & Lloyd
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the use of our
report on Einstein/Noah Bagel Corp. and Subsidiaries dated July 16, 1996
(and to all reference to our Firm) included in or made a part of this
Registration Statement on Form S-8.
/s/ Arthur Andersen LLP
Denver, Colorado
August 29, 1996
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Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
-----------------------------
We consent to the incorporation by reference in this Registration Statement
of Einstein/Noah Bagel Corp. on Form S-8 of our report dated May 7, 1996 on
the consolidated financial statements of Noah's New York Bagels, Inc. as of
December 31, 1994 and December 30, 1995 and for each of the three fiscal
years in the period ended December 30, 1995 appearing in the Registration
Statement No. 333-04725 of Einstein/Noah Bagel Corp.
DELOITTE & TOUCHE LLP
/s/ Deloitte & Touche LLP
San Francisco, California
August 29, 1996
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Exhibit 23.3
INDEPENDENT AUDITORS' CONSENT
-----------------------------
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of Einstein/Noah Bagel Corp. of our report dated April 26, 1996
on the financial statements of Bagel & Bagel, Inc. appearing in the
Prospectus, which is also incorporated by reference.
MAYER HOFFMAN McCANN L.C.
/s/ Mayer Hoffman McCann L.C.
Kansas City, Missouri
August 29, 1996
<PAGE>
Exhibit 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the use of our report on
Offerdahl's Bagel Gourmet, Inc. and Affiliates dated April 24, 1996 (and to all
reference to our Firm) included in or made a part of this Registration Statement
on Form S-8.
/s/ Arthur Andersen LLP
Denver, Colorado
August 29, 1996
<PAGE>
Exhibit 23.5
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the use of our report on
Baltimore Bagel Co. dated April 24, 1996 (and to all reference to our Firm)
included in or made a part of this Registration Statement on Form S-8.
/s/ Arthur Andersen LLP
Denver, Colorado
August 29, 1996
