<PAGE>
As filed with the Securities and Exchange Commission on December 12, 1996
Registration Statement No. 333-14819
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
BUSH INDUSTRIES, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware
- --------------------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
16-0837346
- --------------------------------------------------------------------------------
(I.R.S. Employer Identification No.)
One Mason Drive
Jamestown, New York 14702
(716) 665-2000
- --------------------------------------------------------------------------------
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Robert L. Ayres, Chief Financial Officer
Bush Industries, Inc.
One Mason Drive
Jamestown, New York 14702
(716) 665-2000
- --------------------------------------------------------------------------------
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
Alan H. Aronson, Esq.
Akerman, Senterfitt & Eidson, P.A.
One S.E. 3rd Avenue, 27th Floor
Miami, Florida 33131-1704
(305) 374-5600
- --------------------------------------------------------------------------------
Approximate date of proposed sale to the public: As soon as practicable after
this Registration Statement becomes effective.
<PAGE>
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reimbursement plans, check the following box. [ X ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
<CAPTION>
Calculation Of Registration Fee
- --------------------------------------------------------------------------------
Title of each Amount to be Proposed Proposed Amount of
class of registered (1) maximum maximum registration
securities to offering price aggregate fee
be registered per share (2) offering
price (2)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A 153,689 $17.125 $2,631,924.13 $797.55
Common Stock, shares
par value $.10
per share
- --------------------------------------------------------------------------------
Total: $2,631,924.13 $797.55
- --------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(c), promulgated under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount
of securities to be offered or sold as a result of any adjustments for
stock splits, stock dividends or similar events.
(2) Estimated solely for the purpose of calculating the registration fee.
-----------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
(ii)
<PAGE>
BUSH INDUSTRIES, INC.
CROSS REFERENCE SHEET
Pursuant to Item 501(b) of Regulation S-K
<TABLE>
<CAPTION>
Registration Statement Caption or
Item Number and Caption Location in Prospectus
----------------------- ----------------------
<S> <C>
1. Forepart of the Registration
Statement and Outside Front Cover Cover Page of Prospectus.
Page of Prospectus.
2. Inside Front and Outside Back Inside Front and Outside Back
Cover Pages of Prospectus. Cover Pages of Prospectus.
3. Summary Information, Risk Factors Prospectus Summary;
and Ratio of Earnings to Fixed Summary Financial Information;
Charges. Risk Factors
4. Use of Proceeds. Use of Proceeds.
5. Determination of Offering Price. Not Applicable.
6. Dilution. Not Applicable.
7. Selling Securityholders. Selling Securityholders.
8. Plan of Distribution. Selling Securityholders.
9. Description of Securities to be Not Applicable.
Registered.
10. Interests of Named Experts and Legal Opinion.
Counsel.
11. Material Changes. Not Applicable.
12. Incorporation of Certain Incorporation of Documents by
Information by Reference. Reference.
13. Disclosure of Commission Position Not Applicable.
on Indemnification for Securities
Act Liabilities.
</TABLE>
iii
<PAGE>
PRELIMINARY PROSPECTUS, DATED DECEMBER 12, 1996
SUBJECT TO COMPLETION
--------------------
BUSH INDUSTRIES, INC.
153,689 Shares of Class A Common Stock, $.10 par value
This Prospectus relates to 153,689 shares of Class A Common Stock, par
value $.10 per share (the "Common Stock"), of Bush Industries, Inc., a Delaware
corporation (the "Registrant" or the "Company"). All of the shares of Class A
Common Stock offered hereby are to be sold by certain security holders of the
Company (the "Selling Securityholders"). The Company will not receive any of
the proceeds from any of the shares sold by the Selling Securityholders, except
that one of the Selling Securityholders may use a portion of such proceeds to
repay a current outstanding loan to the Company in the principal amount of not
more than $125,000. See "Selling Securityholders".
The Company will pay all the expenses of this offering. The Selling
Securityholders, however, will bear the cost of all brokerage commissions and
discounts incurred in connection with the sale of their shares of Class A Common
Stock and their respective legal expenses. The shares of Class A Common Stock
may be sold by Selling Securityholders directly or through underwriters, dealers
or agents in market transactions or in privately-negotiated transactions. See
"Plan of Distribution".
The Class A Common Stock is listed on the New York Stock Exchange under
the symbol "BSH." On December 10, 1996, the closing price of the Class A Common
Stock was $17 3/4 per share.
AN INVESTMENT IN THE SECURITIES OFFERED HEREBY INVOLVES CERTAIN RISKS.
PROSPECTIVE INVESTORS SHOULD CONSIDER CAREFULLY THE DISCUSSION UNDER "RISK
FACTORS" COMMENCING ON PAGE 8.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES COMMISSION, NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this Prospectus is ___________, 1996
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act"), and, in accordance therewith, files
reports and other information with the Securities and Exchange Commission (the
"Commission"). Such reports and other information can be inspected and copied
at the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C., and at its following regional offices: Suite
788, 1375 Peachtree St. N.E., Atlanta, Georgia 30367; Suite 1400, 500 West
Madison Street, Chicago, Illinois; and 7 World Trade Center, New York, New York.
Copies of such material can also be obtained at prescribed rates from the Public
Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (the "Act") with respect to the
securities being offered by this Prospectus. This Prospectus does not contain
all of the information set forth in the Registration Statement and the exhibits
thereto. For further information about the Company and the securities offered
hereby, reference is made to the Registration Statement and to the exhibits
filed as a part thereof. The statements contained in this Prospectus as to the
contents of any contract or other document identified as exhibits in this
Prospectus are not necessarily complete and, in each instance, reference is made
to a copy of such contract or document filed as an exhibit to the Registration
Statement, each statement being qualified in any and all respects by such
reference. The Registration Statement, including exhibits, may be inspected
without charge at the principal reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies of all
or any part thereof may be obtained upon payment of fees prescribed by the
Commission from the Public Reference Section of the Commission at its principal
office in Washington, D.C. set forth above. In addition, the Commission
maintains a Web site that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission (http://www.sec.gov).
The Company's Common Stock is listed on the New York Stock Exchange under
the symbol "BSH." All of the reports required to be filed by the Company with
the New York Stock Exchange and other information concerning the Company can be
inspected at 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are hereby incorporated
by reference in this Prospectus: (1) the Company's Annual Report on Form 10-K
for the year ended December 30, 1995, and (2) the Company's Quarterly Reports on
Form 10-Q for the quarters ended September 28, 1996, June 29, 1996, and March
30, 1996. Each document filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act, subsequent to the date of this Prospectus but
prior to the termination of this offering to which this Prospectus relates,
shall be deemed to be incorporated by reference in this Prospectus and made a
part of this Prospectus from the date any such document
2
<PAGE>
is filed. Any statement 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 Prospectus 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 Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy
of any or all of the documents described above, other than exhibits to such
documents (unless such exhibits have been specifically incorporated by reference
therein). Requests for such copies should be directed to the Company's
Treasurer, at the principal executive offices of the Company at One Mason Drive,
Jamestown, New York 14702, telephone (716) 665-2000.
3
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by reference to the
detailed information, financial statements and related notes both appearing in
and incorporated by reference elsewhere in this Prospectus. Each investor is
urged to read this Prospectus in its entirety. Investors should carefully
consider the information set forth under the heading "Risk Factors".
The Company
Bush Industries, Inc. (the "Company" or the "Registrant"), and through its
subsidiaries, is primarily engaged in the design, manufacture and sale of ready-
to-assemble ("RTA") furniture products in various price ranges for both business
and consumer use. The Company also designs, manufactures and sells assembled
furniture. The Company's RTA furniture product line includes audio/video home
entertainment centers, home theater furniture systems, audio cabinets,
television/VCR carts, room dividers, wall units, bookcases, bedroom and
kitchen/utility furniture, microwave carts, computer desks and workstations,
hutches, printer stands, double pedestal executive desks, credenzas, storage
armoires and file cabinets. The Company's assembled products include home
entertainment centers, home theater furniture systems, and furniture for the
home and commercial office.
The Company's varied RTA furniture product line is designed for ease of
assembly, so that such products can be readily assembled by following simple,
easy to read diagramed instructions, contained with each RTA product sold. In
addition, the Company maintains a toll free number to assist consumers with any
questions with respect to the assembly of any product.
The Company was incorporated under the laws of the State of Delaware on
February 5, 1985. The Company was a successor to a corporation of the same name
incorporated under the laws of the State of New York in 1959.
In January 1994, the Company expanded its operations with the acquisition
of approximately 450,000 square feet of manufacturing and warehouse space in
Jamestown, New York. In 1995, the Company began the first phase of a two phase
expansion program which will ultimately include a new approximately one million
square-foot manufacturing and distribution facility in Erie County,
Pennsylvania, which is about 50 miles west of the Company's main manufacturing
complex in Jamestown, New York. The first phase of this expansion, or
approximately 500,000 square feet, is completed and, in April 1996, replaced
the Company's leased distribution and warehouse facility in Saybrook, Ohio.
Construction of the second phase of the expansion program, for an additional
approximately 500,000 square feet commenced in the second quarter of 1996, and
the Company took possession of approximately one-half of the second phase in the
third quarter of 1996 and expects the balance to be substantially completed in
the fourth quarter. Manufacturing capacity, incorporating newly developed
advanced technology, will be added to this facility as demand requires, with the
first equipment installation currently underway.
4
<PAGE>
As of May 30, 1996, the Company consummated the purchase of a majority
interest in The Color Works, Inc., a North Carolina corporation, for $5,481,603,
payable principally in the Company's Class A Common Stock, as described below.
The Color Works, Inc., a North Carolina based finishing and decorating firm,
holds the master license to the "HydroGraFix" film processing technology in
North and South America, Central Europe and South Africa. Such technology
involves three-dimensional dipping and color decorating of various substrate
materials. Pursuant to the terms of a stock purchase agreement, the Company
acquired approximately 67.1% of the issued and outstanding capital stock of The
Color Works, Inc. for an aggregate 197,753 shares of the Company's Class A
Common Stock and a cash payment of $826,692. In addition, on September 25,
1996, the Company acquired the remaining issued and outstanding capital stock of
The Color Works, Inc. not previously acquired by the Company, for, among other
things and subject to an adjustment, an aggregate 153,689 shares of the
Company's Class A Common Stock. The shares that were issued in connection with
such acquisition consummated on September 25, 1996 are being registered
hereunder for the benefit of the Selling Securityholders. In addition, the
Company had previously included an aggregate 197,753 shares of the Company's
Class A Common Stock in a registration statement, filed with and declared
effective by the Securities and Exchange Commission that were issued in
connection with the initial purchase of a majority interest in The Color Works.
See "Selling Securityholders".
The Company's principal place of business is located at One Mason Drive,
Jamestown, New York 14702 (716-665-2000).
5
<PAGE>
The Offering
<TABLE>
<S> <C>
Shares of Class A Common Stock
offered by Selling Securityholders 153,689 shares
Number of Selling Securityholders 3 persons
Number of Shares of Class A Common
Stock outstanding before the 9,647,721 shares (1)
Offering
Number of Shares of Class A Common
Stock outstanding after the Offering 9,647,721 shares (1)
Gross Proceeds to the Company None. See "Use of Proceeds" (2)
Risk Factors The offering involves certain
risks. See "Risk Factors".
New York Stock Exchange symbol "BSH"
</TABLE>
(1) Excludes the issuance of an aggregate 3,855,365 shares of Class A Common
Stock issuable upon conversion of a like number of outstanding shares of
the Company's Class B Common Stock, par value $.10 per share. In addition,
excludes up to an aggregate 1,926,886 shares of Class A Common
Stock issuable upon the exercise of outstanding stock options granted
outside a plan or under the Company's 1985 Stock Plan and 1985 Incentive
Stock Option Plan. Also excludes up to an aggregate 375,000 shares of
Class A Common Stock issuable upon the grant of shares or upon the exercise
of options to be granted and/or currently outstanding under the Company's
1995 Stock Plan.
(2) The Company will not receive any proceeds from the sale of shares of Class
A Common Stock by the Selling Securityholders, except that one of the Selling
Securityholders may use a portion of such proceeds to repay a current
outstanding loan to the Company in the principal amount of not more than
$125,000. See "Selling Securityholders."
6
<PAGE>
SUMMARY FINANCIAL DATA
The following summary financial data of the Company for the 1991 through
1995 fiscal years and for the interim periods listed below have been derived
from the Consolidated Financial Statements of the Company. This summary
financial data should be read in conjunction with the Consolidated Financial
Statements and notes thereto included elsewhere herein.
<TABLE>
<CAPTION>
(In Thousands, except share and per share data)
-----------------------------------------------
Thirty-Nine Fiscal Year Ended
September 28, September 30,
1996 1995 1995 1994 1993 1992 1991
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings
Data (1)
Net Sales............. $183,870 $154,702 $220,014 $213,216 $170,285 $127,990 $126,459
Earnings Before
Income Taxes.......... $20,969 $12,622 $20,744 $19,842 $11,908 $4,569 $4,249
Net Earnings.......... $13,056 $7,637 $12,550 $12,004 $7,145 $2,771 $2,405
Earnings Per Share
Primary.......... $0.93 $0.58 $0.95 $0.86 $0.55 $0.21 $0.19
Fully Diluted.... $0.93 $0.57 $0.91 $0.86 $0.55 $0.21 $0.19
Weighted Average
Shares Outstanding
Primary.......... 14,025,638 13,243,082 13,270,543 14,012,071 13,021,512 13,041,012 12,870,270
Fully Diluted.... 14,025,638 13,281,912 13,841,191 14,012,071 13,045,116 13,042,845 12,936,207
Balance Sheet
Data
Working Capital....... $33,421 $29,746 $24,018 $34,421 $26,903 $23,634 $11,130
Net Plant, Property
and Equipment......... $74,417 $39,088 $49,616 $34,417 $29,041 $27,524 $28,835
Total Assets.......... $147,795 $96,256 $102,606 $100,958 $83,522 $72,161 $78,017
Long-term Debt........ $36,738 $11,012 $15,031 $16,774 $16,108 $18,809 $10,284
Stockholders'
Equity................ $79,139 $58,435 $59,113 $52,265 $39,938 $31,852 $29,249
- ---------------------
</TABLE>
7
<PAGE>
(1) Earnings per share and the number of weighted average Class A and Class B
Shares of Common Stock outstanding have been adjusted to reflect the 3-for-2
stock split effectuated in the form of a fifty percent dividend paid on June 28,
1996 to stockholders of record as of June 14, 1996; the 5-for-4 stock split
effectuated in the form of a twenty-five percent dividend paid on January 20,
1995 to stockholders of record as of January 6, 1995; and the 3-for-2 stock
split effectuated in the form of a fifty percent dividend paid on January 7,
1994 to stockholders of record as of December 20, 1993.
8
<PAGE>
RISK FACTORS
An investment in the shares of Class A Common Stock offered hereby involves
a certain degree of risk. Therefore, in evaluating the Company and its business
prospects, prospective investors should carefully consider the following risk
factors in addition to the other information set forth elsewhere in this
Prospectus before purchasing shares of Class A Common Stock in this offering.
Financial Conditions; Results of Operations. Although the Company achieved
record third quarter sales for the 13 week period ending September 28, 1996, no
assurance can be given that the Company will be able to sustain such record
growth in the future. In addition, although the Company achieved seven
consecutive years of increased sales, no assurance can be given that such trend
will continue. The Company's results of operations are affected by numerous
factors, many of which are beyond the control of the Company. These factors
include general business and economic conditions, factors generally affecting
consumer spending, and factors generally affecting the level of retail
sales.
New Product Development. The Company's results of operations depend, in
part, upon its continued ability to develop, market and launch new products in
the RTA furniture industry. New products must be developed, tested and
manufactured on a cost-effective basis before such products can be successfully
marketed. The development and marketing process is time consuming and costly.
Although the Company expends time and resources to develop products in an effort
to satisfy changing consumer demand, no assurance can be given that new products
can be developed on a cost-effective basis to meet such consumer demand. In
addition, no assurance can be given that any new products developed would be
commercially accepted.
Competition. The Company competes with numerous companies that manufacture,
sell and distribute RTA furniture. Some of these companies have greater assets
and possess greater financial resources than the Company.
Dependence on Principal Customer. For the fiscal year ended December 30,
1995, the Company had one customer, which accounted for approximately 14% of the
Company's total gross sales. No other single customer accounted for more than
10% of the Company's total gross sales. While the loss of any substantial
customer could have a material short-term impact on the Company's business, the
Company believes that its diverse distribution channels would minimize the long-
term impact of any such loss.
Sources and Availability of Raw Materials. The Company purchases the raw
materials used in the manufacture of its furniture product lines from various
sources located throughout the United States and abroad. Although the Company
believes that none of the materials required for its core manufacturing
operations are proprietary in nature and that an adequate supply of raw
materials is available from multiple sources, no assurances can be given that
shortages in these raw materials will not occur in the future.
9
<PAGE>
Reliance on Executive Officers and Key Employees. The continued success of
the Company is dependent to a significant degree upon the services of its
executive officers and upon the Company's ability to attract and retain
qualified personnel experienced in the various phases of the Company's business.
The Company has employment agreements with certain of its executive officers.
The ability of the Company to operate successfully could be jeopardized if one
or more of its executive officers were unavailable and capable successors were
not found. The employment agreements between the Company and its executive
officers are individually terminable by each executive officer upon a change of
control of the Company.
Price Volatility of Stock Market. The market price of the Class A Common
Stock is subject to significant fluctuations. From time to time in recent years,
the securities markets have experienced significant price and volume
fluctuations that have often been unrelated or disproportionate to the operating
performance of particular companies. These broad fluctuations may adversely
affect the market price of the Company's Class A Common Stock.
Credit Facility Restrictions; Future Availability. The Company has a $85
million revolving line of credit with Mellon Bank, N.A. and other lending
institutions. The agreement governing the line of credit contains covenants that
impose limitations on the Company, and requires the Company to be in compliance
with certain financial ratios. If the Company fails to make required payments,
or if the Company fails to comply with the various covenants contained in its
agreement, the lender may be able to accelerate the maturity of such
indebtedness. As of September 28, 1996, the Company was in compliance with the
required financial ratios and the Company believes that it is presently in
compliance with all other covenants under this agreement. The revolving line of
credit agreement expires on July 31, 2000.
Environmental Compliance. In November 1995, the Company was notified by the
New York State Department of Environmental Conservation ("DEC") of an alleged
violation of a certain environmental regulation concerning the presence of
contaminates in the groundwater, including trichloroethene ("TCE"), beneath the
Company's plant located in Little Valley, New York. Based on available data, the
Company believes that there is no conclusive evidence that its plant is the
source of such contamination, nor has the Company ever used TCE in its
manufacturing operations. The Company has proposed to the DEC in a "Statement of
Work", certain monitoring and testing procedures to be undertaken by the Company
to obtain more reliable data as to the extent and sources of the TCE
contamination. Such "Statement of Work", if acceptable to the DEC, may form the
basis of an Order On Consent with the DEC with respect to those measures to be
undertaken by the Company. As of this date, the DEC is still reviewing the
Company's proposed "Statement of Work." On June 17, 1996, an approximate five-
mile area in Little Valley, New York was added to the federal Superfund national
priorities list, and with respect thereto, no potentially responsible parties
have been identified as of the date hereof. The Company is in the process of
responding to a request for information from the United States Environmental
Protection Agency (the "EPA"), relating to the Company's Little Valley, New York
property. No assurance can be given that the Company's response will be
sufficient for the EPA, or that the EPA will not pursue further inquiries.
Although no assurance can be given, the Company believes that its operations
will not be adversely affected by
10
<PAGE>
the foregoing. The Company has also become aware of the possible presence of
certain levels of contaminates on the Greensboro, North Carolina property owned
by The Color Works, Inc., a North Carolina corporation, of which the Company
recently became the sole stockholder. The Company has been indemnified to a
certain extent by the former shareholders of The Color Works, Inc., which
include certain of the Selling Securityholders hereunder, and James H. Peeples,
a Selling Securityholder hereunder, and has procured a $20,000,000 environmental
insurance policy relating thereto. In the unlikely event any such environmental
costs are not covered by such indemnification or insurance, the Company may be
responsible for certain costs. However, based on an initial assessment of the
situation, the Company believes, although no assurance can be given, that the
Company's operations will not be materially adversely affected by the foregoing.
11
<PAGE>
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
shares of Class A Common Stock being offered by the Selling Securityholders
hereunder, except that one of the Selling Securityholders may use a portion of
such proceeds to repay a current outstanding loan to the Company in the
principal amount of not more than $125,000.
12
<PAGE>
SELLING SECURITYHOLDERS
<TABLE>
<CAPTION>
Number of
Number of Shares (and
Shares Owned Number of percentage of
Prior to Shares to Shares) After
Offering be Sold Offering
------------ ----------- ---------------
<S> <C> <C> <C>
James H. Peeples (3) 61,262 61,262(1) 0
Anne G. Peeples (3) 11,066 4,391 6,675(2)(4)
The Peeples Family Trust (3) 93,926 88,036 5,890(2)(4)
</TABLE>
(1) Said shares are being held in escrow pursuant to the terms of a pledge
agreement, entered into by and between the Company and Mr. Peeples to secure the
repayment of the principal amount of a current outstanding loan made by the
Company to Mr. Peeples, plus accrued interest, which principal amount of such
loan is not to exceed $125,000.
(2) Represents shares which have been included for resale by such Selling
Securityholder under a registration statement filed by the Company and declared
effective by the Securities and Exchange Commission on August 30, 1996.
(3) Anne G. Peeples and James H. Peeples are the trustees of The Peeples Family
Trust. Anne G. Peeples is the mother of James H. Peeples.
(4) Less than one percent.
13
<PAGE>
PLAN OF DISTRIBUTION
The distribution of the shares of Class A Common Stock by the Selling
Securityholders may be effectuated from time to time in one or more transactions
(which may involve block transactions), on the New York Stock Exchange, or on
any exchange on which the shares of Class A Common Stock may then be listed, in
negotiated private transactions, or a combination of such methods of sale, at
market prices prevailing at the time of sale, or at prices relating to such
prevailing market prices or at negotiated prices. The Selling Securityholders
may effectuate such transactions by selling shares to or through broker-dealers,
and such broker-dealers may receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling Securityholders and/or
purchasers of shares of Common Stock for whom they may act as agent (which
compensation may be in excess of customary commissions).
The Selling Securityholders and any broker-dealers that act in connection
with the sale of the shares of Class A Common Stock may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Act and the
commissions received by them and any profit on the resale of such shares might
be deemed to be underwriting discounts or commissions under the Act. The Selling
Securityholders may agree to indemnify any agent, dealer or broker-dealer that
participates in transactions involving sales of the shares of Class A Common
Stock against certain liabilities including liabilities arising under the Act.
14
<PAGE>
EXPERTS
The financial statements as of December 30, 1995 and December 31, 1994 and
for each of the three fiscal years in the period ended December 30, 1995
incorporated by reference in this Prospectus have been audited by Deloitte &
Touche, LLP, independent auditors as stated in their reports incorporated by
reference herein and elsewhere in the Registration Statement, and are included
in reliance upon the reports of such firm given upon their authority as experts
in accounting and auditing.
LEGAL MATTERS
Akerman, Senterfitt & Eidson, P.A., Miami, Florida, has acted as counsel to
the Company in connection with the Registration Statement and has rendered an
opinion as to the validity of the shares of Common Stock offered hereby.
15
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses to be incurred in
connection with the Offering:
<TABLE>
<CAPTION>
Amount*
-------
<S> <C>
SEC Registration Fee................... $ 797.55
Printing and Engraving................. 1,000.00
Legal Fees and Expenses................ 5,000.00
Accounting Fees and Expenses........... 5,000.00
Blue Sky Fees and Expenses............. 500.00
Miscellaneous.......................... 1,000.00
Total............................... ----------
$13,297.55
==========
</TABLE>
- -----------------
* Estimated, except SEC Registration Fee.
Item 15. Indemnification of Directors and Officers.
In accordance with the provisions of the General Corporation Law of
the State of Delaware (the "Act"), Article VI of the Registrant's Bylaws
requires indemnification of Directors and Officers of the Company to the fullest
extent provided by Section 145 of the Act, and also provides that such rights to
indemnification are not exclusive of any other right to which Directors and
Officers may otherwise be entitled.
In addition to the above-described provisions, Section 145 of the Act
contains provisions prescribing the extent to which directors and officers shall
or may be indemnified. Section 145 of the Act permits a corporation, with
certain exceptions, to indemnify a present or former director against liability
if (i) he acted in good faith, and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and (ii) in the case of
any criminal proceeding, he had no reasonable cause to believe his conduct was
unlawful. A corporation may not indemnify a person in respect of a claim, issue
or matter as to which such person shall have been adjudged liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnification or
such expenses which the Court of Chancery or such other court shall deem proper.
Section 145 of the Act requires a corporation to indemnify a director
or officer in the defense of any proceeding to which he was a party against
expenses actually and reasonably incurred by him when he is successful in his
defense on the merits or otherwise.
II-1
<PAGE>
Further, the Registrant has adopted a charter provision pursuant to
Delaware law which purports to limit the liability of Directors for monetary
damages.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits
--------
5.1 Opinion of Akerman, Senterfitt & Eidson, P.A., as to the legality of
the securities being offered hereby.*
23.1 Consent of Akerman, Senterfitt & Eidson, P.A. (included as part of
Exhibit 5.1).*
23.2 Consent of Deloitte & Touche, LLP, independent certified public
accountants.
* Previously filed.
(b) Financial Statement Schedules
-----------------------------
All schedules are omitted because they are not applicable, or not
required because the required information is included in the Consolidated
Financial Statements or notes thereto.
II-2
<PAGE>
Item 17. Undertakings.
(A) The 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 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.
(2) For the purposes of determining any liability under the Securities
Act of 1933, as amended, 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 post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) 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
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.
(5) 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
plans' 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 therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-3
<PAGE>
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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Jamestown, State of New York, on this 10th day
of December, 1996.
BUSH INDUSTRIES, INC.
------------------------------------------------
Registrant
By: /s/ Paul S. Bush
---------------------------------------------
Paul S. Bush, Chairman of the Board of
Directors, President and Chief Executive
Officer
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Paul S. Bush Chairman of the Board of December 10, 1996
- ---------------------- Directors, President and
Paul S. Bush Chief Executive Officer
/s/ Robert L. Ayres Executive Vice President, Chief December 10, 1996
- ---------------------- Operating Officer, Chief Financial
Robert L. Ayres Officer and Director
/s/ Lewis H. Aronson Vice President of Corporate December 10, 1996
- ---------------------- Development and Director
Lewis H. Aronson
/s/ Douglas S. Bush Vice President of Merchandising
- ---------------------- and Director December 10, 1996
Douglas S. Bush
</TABLE>
- --------------------------------------------------------------------------------
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gregory P. Bush Vice President of Administration December 10, 1996
- ---------------------- and New Business Development
Gregory P. Bush and Director
/s/ Donald F. Hauck Senior Vice President and December 10, 1996
- ---------------------- Director
Donald F. Hauck
/s/ David G. Messinger Senior Vice President of Sales December 10, 1996
- ---------------------- and Marketing and Director
David G. Messinger
/s/ Jerald D. Bidlack Director December 10, 1996
- ----------------------
Jerald D. Bidlack
/s/ Paul A. Benke Director December 10, 1996
- ----------------------
Paul A. Benke
/s/ Robert E. Hallagan Director December 10, 1996
- ----------------------
Robert E. Hallagan
</TABLE>
II-5
<PAGE>
Exhibit 23.2
DELOITTE &
TOUCHE LLP
- ----------- ------------------------------------------------
Suite 250 Telephone: (716)843-7200
Key Bank Tower Facsimile: (716)856-7760
50 Fountain Plaza
Buffalo, New York 14202
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Bush Industries, Inc. on Form S-3 of our report dated February 9, 1996,
appearing in the Annual Report on Form 10-K of Bush Industries, Inc. for the
year ended December 30, 1995 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/S/ DELOITTE & TOUCHE LLP
December 12, 1996
