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Filed with the Securities and Exchange Commission on October 1, 1998
Registration No. _____________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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bebe stores, inc.
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(Exact name of registrant as specified in its charter)
California 942450490
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
380 Valley Drive
Brisbane, CA 94005
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(Address of principal executive offices) (Zip code)
1997 Stock Plan
1998 Employee Stock Purchase Plan
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(Full title of the plan)
Blair Lambert
Chief Financial Officer
bebe stores, inc.
380 Valley Drive
Brisbane, CA 94005
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (415) 715-3900
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
Securities to be Amount to be offering price aggregate Amount of
registered (1) registered (2) per share (3) offering price (3) registration fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Plan
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Common Stock, 1,059,879 $15.625 $16,560,609.38 $4,885.38
par value $0.001 1,770,121 $2.5856 $4,576,824.80 $1,350.16
Employee Stock Purchase Plan
- ----------------------------
Common Stock, 750,000 $13.28125 $9,960,937.50 $2,938.48
par value $0.001
TOTALS 3,580,000 $31,098,371.68 $9,174.02
</TABLE>
- -----------------------------
(1) The securities to be registered include options and rights to acquire Common
Stock.
(2) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any stock
split, stock dividend or similar transaction.
(3) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised options
and purchase rights under the Stock Plan, the price is computed on the basis of
the weighted average exercise price. As to the remaining shares under the Stock
Plan, the price is based upon the average of the high and low prices of the
Common Stock on September 24, 1998 as reported on the Nasdaq National Market
System. The Employee Stock Purchase Plan establishes a purchase price equal to
85% of the fair market value of the Company's Common Stock, and, therefore, the
price for shares under this plan is based upon 85% of the average of the high
and low prices of the Common Stock on September 24, 1998 as reported on the
Nasdaq National Market System.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
bebe stores, inc. (the "Company") hereby incorporates by reference in
this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), containing audited financial statements for the Company's
latest fiscal year ended June 30, 1998 as filed with the Securities and
Exchange Commission.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on June 5, 1998 under the
Exchange Act, 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 Exchange Act, prior to the filing of
a post-effective amendment to this registration statement which indicates that
all securities offered hereby have been sold or which deregisters all securities
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.
Item 4. DESCRIPTION OF SECURITIES
The class of securities to be offered is registered under Section 12
of the Exchange Act.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation provide that the liability of
the directors for monetary damages shall be eliminated to the fullest extent
permissible under California law. Pursuant to California law, the Company's
directors shall not be liable for monetary damages for breach of the directors'
fiduciary duty of care to the Company and its shareholders. However, this
provision does not eliminate the duty of care, and in appropriate circumstances,
equitable
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remedies such as injunctive or other forms of nonmonetary relief will remain
available under California law.
In addition, each director will continue to be subject to liability
for (i) acts or omissions that involve intentional misconduct or a knowing and
culpable violation of law, (ii) acts or omissions that a director believes to be
contrary to the best interests of the Company or its shareholders or that
involve the absence of good faith on the part of the director, (iii) any
transaction from which a director derived an improper personal benefit,
(iv) acts or omissions that show a reckless disregard for the director's duty to
the Company or its shareholders in circumstances in which the director was
aware, or should have been aware, in the ordinary course of performing a
director's duties, of a risk of serious injury to the Company or its
shareholders, (v) acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the director's duty to the Company
or its shareholders, (vi) any transaction that constitutes an illegal
distribution or dividend under California law, and (vii) any transaction
involving an unlawful conflict of interest between the director and the Company
under California law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws.
In addition, the Company's Articles of Incorporation provide that the
Company is authorized to provide indemnification of agents (as defined under
California law) for breach of duty to the Company and its shareholders through
bylaw provisions or through agreements with the agents, or through shareholder
resolutions, or otherwise, in excess of the indemnification otherwise permitted
by California law, subject to the limits on such excess indemnification set
forth in California law.
The Company's Bylaws provide that the Company will indemnify its
directors and executive officers and may indemnify its other officers, employees
and other agents to the fullest extent permitted by California law. Such
indemnification is intended to provide the full flexibility available under
California law and may, under certain circumstances, include indemnification for
negligence, gross negligence and certain types of recklessness. Under
California law and the Company's Bylaws, the Company will be permitted to
indemnify its directors, executive officers, officers, employees and other
agents, within the limits established by law and public policy, pursuant to an
express contract, bylaw provision, shareholder vote or otherwise, any or all of
which could provide indemnification rights broader than those expressly
available under California law.
The Company is also empowered under its Bylaws to enter into
indemnification agreements with its directors and officers and to purchase
insurance on behalf of any person whom it is required or permitted to indemnify.
The Company has entered into agreements with its directors and certain of its
executive officers that require the Company to indemnify such persons against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
an executive officer of the Company or any of its affiliated enterprises,
provided such person acted in good faith and in a manner such
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person reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal proceeding, had no reasonable cause to
believe his conduct was unlawful. The indemnification agreements also set forth
certain procedures that will apply in the event of a claim for indemnification
thereunder.
Section 317 of the California Corporations Code makes provisions for
the indemnification of officers, directors and other corporate agents in terms
sufficiently broad to indemnify such persons, under certain circumstances, for
liabilities (including reimbursement of expenses incurred) arising under the
Securities Act of 1933, as amended (the "Securities Act"). Section 317 also
provides that the indemnification provided by this section is not exclusive
to the extent additional rights are authorized in a corporation's articles of
incorporation.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
Item 8. EXHIBITS
See Exhibit Index.
Item 9. UNDERTAKINGS
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; 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 (1)(i) and (l)(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 registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
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(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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act each filing of the
registrant's annual report pursuant to Section 13(a) or Section 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.
Insofar as indemnification for liabilities arising under the
Securities Act 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 Securities 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 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.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Brisbane, State of California, on September 30, 1998.
bebe stores, inc.
By: /s/ Blair Lambert
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Blair Lambert
Chief Financial Officer
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of bebe stores, inc. whose signatures appear
below, hereby constitute and appoint Manny Mashouf and Blair Lambert, and each
of them, their true and lawful attorneys-in-fact and agents, with full power of
substitution, each with power to act alone, to sign and execute on behalf of the
undersigned any amendment or amendments to this registration statement on
Form S-8, and each of the undersigned does hereby ratify and confirm all that
each of said attorney-in-fact and agent, or their or his substitutes, shall do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities indicated on September 30, 1998.
Signature Title
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/s/ Manny Mashouf President, Chief Executive Officer and
- ------------------------------- Chairman of the Board
Manny Mashouf (Principal Executive Officer)
/s/ Blair Lambert Chief Financial Officer
- ------------------------------- (Principal Financial and
Blair Lambert Accounting Officer)
/s/ Neda Mashouf Director
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Neda Mashouf
Director
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Barbara Bass
Director
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Corrado Federico
/s/ Philip Schlein Director
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Philip Schlein
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EXHIBIT INDEX
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4.1 Amended and Restated Articles of Incorporation of the Company is
incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 filed with the Securities and
Exchange Commission on May 19, 1998 (File No. 333-50333)
4.2 Certificate of Correction of the Amended and Restated Articles of
Incorporation is incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 filed with the Securities
and Exchange Commission on May 19, 1998 (File No. 333-50333)
4.3 Bylaws of the Company are incorporated by reference to Exhibit 3.2 to
the Company's Registration Statement on Form S-1 filed with the
Securities and Exchange Commission on May 19, 1998 (File No. 333-
50333)
5 Opinion of legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: 650-328-6561 Fax: 650-327-3699 www.gcwf.com
September 30, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for bebe stores, inc., a California corporation (the Company"),
we are rendering this opinion in connection with the registration under the
Securities Act of 1933, as amended, of up to 3,580,000 shares of the Common
Stock, $0.001 par value, of the Company which may be issued pursuant to the 1997
Stock Plan (the "Stock Plan") and the 1998 Employee Stock Purchase Plan (the
"Purchase Plan").
We have examined all instruments, documents and records which we deemed relevant
and necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California and the federal law of the
United States.
Based on such examination, we are of the opinion that the 3,580,000 shares of
Common Stock which may be issued pursuant to the Stock Plan and the Purchase
Plan, are duly authorized shares of the Company's Common Stock, and, when issued
against receipt of the consideration therefor in accordance with the provisions
of the Stock Plan and the Purchase Plan will be validly issued, fully paid and
nonassessable. We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich LLP
GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT AND REPORT ON SCHEDULE
We consent to the incorporation by reference in Registration Statement No.
333-50333, of bebe stores, inc. (dba bebe) on Forms S-8 of our report dated July
29, 1998, incorporated by reference in this Annual Report on Form 10-K of bebe
stores, inc. (dba bebe) for the fiscal year ended June 30, 1998.
Our audits of the financial statements referred to in our aforementioned
report also included the financial statement schedule of bebe stores, inc.,
listed in Item 16(b). This financial statement schedule is the responsibility
of the Company management. Our responsibility is to express an opinion based
on our audits. In our opinion, such financial statement schedule, when
considered in relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set forth therein.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
San Francisco, CA
September 25, 1998
