<PAGE>
As filed with the Securities and Exchange Commission on July 31, 1996
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------
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.
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 [_].
Calculation Of Registration Fee
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Title of each Amount to be Proposed Proposed Amount of
class of registered (1) maximum maximum registration
securities to offering price aggregate
be registered per share (2) offering
price (2)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A 197,753 $19.375 $ 3,831,464.38 $1,321.19
Common Stock, shares
par value $.10
per share
- --------------------------------------------------------------------------------
Class A 84,376 $ 8.91 (3) $ 751,790.16 $ 259.24
Common Stock, shares (3)
par value $.10
per share (3)
- --------------------------------------------------------------------------------
Total: $ 4,583,254.54 $ 1,580.43
- --------------------------------------------------------------------------------
</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.
(3) Represents shares of the Registrant's Class A Common Stock issuable upon
exercise of outstanding stock options at an exercise price of $ 8.91 per share.
-------------------------------------------
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.
<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> <C>
1. Forepart of the Registration
Statement and Outside Front Cover Page of Prospectus.
Cover Page of Prospectus.
2. Inside Front and Outside Back Inside Front and Outside Back Cover
Cover Pages of Prospectus. Pages of Prospectus.
3. Summary Information, Risk Prospectus Summary;
Factors and Ratio of Earnings Summary Financial Information;
to Fixed 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>
(iv)
<PAGE>
PRELIMINARY PROSPECTUS, DATED JULY 31, 1996
SUBJECT TO COMPLETION
-----------------
BUSH INDUSTRIES, INC.
282,129 Shares of Class A Common Stock, $.10 par value
This Prospectus relates to 282,129 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"). Of the shares of Class A
Common Stock offered hereby, 282,129 shares are to be sold by certain security
holders of the Company (the "Selling Securityholders"). Of such shares, 84,376
shares of Class A Common Stock in the aggregate to be sold by Selling
Securityholders are issuable to the Selling Securityholders upon exercise of a
like number of outstanding stock options, exercisable at $ 8.91 per share. The
Company will not receive any of the proceeds from any of the shares sold by the
Selling Securityholders, but will receive gross proceeds of $ 751,790.16, upon
the exercise of all of the stock options by the Selling Securityholders
described above. 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". This Registration Statement also covers the exercise of
the above-described stock options by certain of the Selling Securityholders.
The Class A Common Stock is listed on the New York Stock Exchange under the
symbol "BSH." On July 30, 1996, the closing price of the Class A Common Stock
was $19.375 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
------------
1
<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 Report on
Form 10-Q for the quarter ended 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 is filed. Any statement contained in a
2
<PAGE>
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 appearing elsewhere
in this Prospectus. Each investor is urged to read this Prospectus in its
entirety. Unless the context otherwise requires, all information in this
Prospectus (i) has been adjusted to reflect the three-for-two stock split
effectuated in the form of a fifty (50%) percent stock dividend which became
effective as of June 14, 1996 and (ii) assumes no exercise of any outstanding
options or warrants. 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, which was completed 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 is scheduled to be completed in the later part
of 1996. Manufacturing capacity, incorporating advanced technology, will be
added to this facility as demand requires.
4
<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....................... $ 1,580.43
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...................................
$14,080.43
==========
</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.
(b) Financial Statement Schedules
-----------------------------
Schedule II - Valuation and Qualifying Accounts
All other 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. Undertaking.
(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 30th day of
July, 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 Directors, July 30, 1996
- --------------------- President and Chief Executive Officer
Paul S. Bush
/s/ Robert L. Ayres Executive Vice President, Chief July 30, 1996
- --------------------- Operating Officer, Chief Financial
Robert L. Ayres Officer and Director
/s/ Lewis H. Aronson Vice President of Corporate July 30, 1996
- --------------------- Development and Director
Lewis H. Aronson
/s/ Douglas S. Bush Vice President of Merchandising and July 30, 1996
- --------------------- Director
Douglas S. Bush
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gregory P. Bush Vice President of Administration and July 30, 1996
- ---------------------- New Business Development and
Gregory P. Bush Director
/s/ Donald F. Hauck Senior Vice President and Director July 30, 1996
- ----------------------
Donald F. Hauck
/s/ David G. Messinger Senior Vice President of Sales and July 30, 1996
- ---------------------- Marketing and Director
David G. Messinger
/s/ Jerald D. Bidlack Director July 30, 1996
- ----------------------
Jerald D. Bidlack
/s/ Paul A. Benke Director July 30, 1996
- ----------------------
Paul A. Benke
/s/ Robert E. Hallagan Director July 30, 1996
- ----------------------
Robert E. Hallagan
</TABLE>
II-5
<PAGE>
AKERMAN, SENTERFITT & EIDSON, P.A.
ONE SOUTHEAST THIRD AVENUE
28TH FLOOR
MIAMI, FLORIDA 33131-1704
(305) 374-5600
July 30, 1996
Bush Industries, Inc.
One Mason Drive
Jamestown, New York 14702
RE: Registration Statement on Form S-8
-----------------------------------
Gentlemen:
We are special counsel to Bush Industries, Inc., a Delaware corporation
(the "Company"), and our opinion has been requested with respect to the
inclusion of an aggregate 282,129 shares of the Company's Class A Common Stock
(the "Shares") in a Registration Statement on Form S-3, of which 84,376 Shares
are issuable upon exercise of outstanding stock options.
This opinion has been prepared and is to be construed in accordance with
the Report on Standards for Florida Opinions dated April 8, 1991, issued by the
Business Law Section of The Florida Bar, 46 The Business Lawyer, No. 4 (the
-------------------
"Report"). The Report is incorporated by reference into this opinion.
Based upon the foregoing, it is our opinion that the outstanding Shares
included in the Registration Statement on Form S-3 have been duly authorized and
are validly issued, and with respect to an aggregate 84,376 Shares issuable upon
exercise of outstanding stock options, such Shares have been duly authorized and
when issued upon payment therefor in accordance with the terms of the
outstanding options granted, will be validly issued, fully paid and non-
assessable.
In rendering this opinion, we advise you that members of this Firm are
members of the Bar of the State of Florida, and we express no opinion herein
concerning the applicability or effect of any laws of any other jurisdiction,
except the securities laws of the United States of America referred to herein,
and the general corporation laws of the State of Delaware.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement on Form S-3 relating to the Shares, as filed under the
Securities Act of 1933, as amended, with the Securities and Exchange Commission.
Very truly yours,
AKERMAN, SENTERFITT & EIDSON, P.A.
<PAGE>
DELOITTE &
TOUCHE LLP
- ----------- -------------------------------------------------
Suite 250 Telephone: (716) 843-7200
Key Bank Tower Facsimile: (716) 856-7760
50 Fountain Plaza
Buffalo, New York 14202
INDEPENDENT AUDITOR'S 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, 1995,
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
July 30, 1996
