<PAGE>
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BUSH INDUSTRIES, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 16-0837346
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
ONE MASON DRIVE, JAMESTOWN, NEW YORK 14702
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(Address of Principal Executive Offices) (Zip Code)
BUSH INDUSTRIES, INC. 1985 STOCK PLAN
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(Full title of the plan)
ROBERT L. AYRES, CHIEF FINANCIAL OFFICER, ONE MASON DRIVE, JAMESTOWN, NY 14702
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(Name and address of agent for service)
(716) 665-2000
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(Telephone number, including area code, of agent for service)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO AMOUNT TO BE MAXIMUM AGGREGATE OFFERING REGISTRATION FEE
BE REGISTERED REGISTERED/(1)/ OFFERING PRICE
PRICE PER SHARE
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<S> <C> <C> <C> <C>
Class A Common 196,875 shares (2) $8.91 $1,754,156.25 $531.56
Stock, $.10 par value
- ---------------------------------------------------------------------------------------------------
TOTAL $1,754,156.25 $531.56
- ---------------------------------------------------------------------------------------------------
</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 from
stock splits, stock dividends or similar events.
/(2)/ Represents shares of Class A Common Stock of Bush Industries, Inc.
issuable upon the exercise of a like number of outstanding stock options
granted to a Director and Officer of the Registrant, in accordance with
the terms and conditions of the Bush Industries, Inc. 1985 Stock Plan (the
"Plan").
(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 Out side Front Cover Cover Page of Prospectus.
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 Factors Description of Plan.
and Ratio of Earnings to Fixed
Charges.
4. Use of Proceeds. Use of Proceeds.
5. Determination of Offering Price. Not Applicable.
6. Dilution. Not Applicable.
7. Selling Security Holders. Selling Security Holder.
8. Plan of Distribution. Selling Security Holder.
9. Description of Securities to be Description of Plan.
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 Indemnification of Directors and
on Indemnification for Securities Officers; Undertakings.
Act Liabilities.
14. Indemnification of Directors and Indemnification of Directors and
Officers Officers
15. Exemption from Registration Exemption from Registration Claimed.
Claimed.
16. Exhibits. Exhibits.
17. Undertakings. Undertakings.
</TABLE>
(iii)
<PAGE>
PROSPECTUS
196,875 SHARES
BUSH INDUSTRIES, INC.
CLASS A COMMON STOCK
($.10 PAR VALUE)
Bush Industries, Inc. (the "Company" or the "Registrant") is registering an
aggregate 196,875 shares of Class A Common Stock (the "Shares"), issuable upon
the exercise of a like number of outstanding stock options granted to a Director
and Officer of the Company. The options were granted pursuant to the Bush
Industries, Inc. 1985 Stock Plan (the "Plan"). The Director and Officer may
offer these Shares (upon exercise of the stock options) for sale as a principal
for his own account at any time and from time to time on the New York Stock
Exchange or otherwise at prices prevailing at the time of sale or in private
sales and at prices to be negotiated. The Director and Officer upon exercise of
the options and sale of the Shares of Common Stock issuable thereunder will
receive the entire proceeds from such sale (see "Selling Security Holder"). Such
Director and Officer of the Company may be deemed to be an affiliate of the
Company, as that term is defined under Rule 405 of the Securities Act of 1933,
as amended. Upon exercise of the above-described stock options, the Company
will receive gross proceeds of approximately $1,754,150. See "Use of Proceeds."
----------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN AS CONTAINED HEREIN IN CONNECTION WITH THE OFFER
CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR ANY PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION MAY NOT BE LAWFULLY MADE.
The date of this Prospectus is October 16, 1997.
-1-
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 and, in accordance therewith, files reports and other
information with the Securities and Exchange Commission (the "Commission").
Reports, proxy and information statements and other information concerning the
Company can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549;
500 West Madison, Chicago, Illinois 60661; 7 World Trade Center, Room 1028, New
York, New York 10048; 411 West Seventh Street, Fort Worth, Texas 76102, 8th
Floor; and 5757 Wilshire Boulevard, Suite 500 East, Los Angeles, California
90036-3648. Copies of any such material can be obtained from the Public
Reference Section of the Commission, Washington, D.C. 20549 at prescribed rates.
The Commission maintains a Web site that contains reports, proxy and information
statements and other information regarding the Registrant. The address of such
Web site is http://www.sec.gov. In addition, the Company's Class A Common Stock
is listed on the New York Stock Exchange, and reports and other information
regarding the Company can be inspected at such exchange.
The Company will provide without charge to each person to whom a Prospectus
is delivered, upon written or oral request of such person, a copy of any and all
of the information that has been incorporated herein by reference (not including
exhibits thereto). Such requests should be made to the Corporate Treasurer,
Bush Industries, Inc., One Mason Drive, Jamestown, New York 14702 (716) 665-
2000.
DESCRIPTION OF PLAN
The Company adopted the Plan for the award of non-qualified stock options,
stock appreciation rights ("SARs") and contingent stock ("Contingent Stock").
Under the terms of the Plan, no grant or award thereunder may be made after
March 1, 1995, the termination date of such Plan. Outstanding options as of such
date issued under the Plan will continue to be outstanding until the earlier of
the exercise thereof or expiration thereof pursuant to the terms of grant. As
of October 1, 1997, the maximum number of shares of Class A Common Stock
available for issuance under the Plan upon exercise of outstanding stock options
is 1,742,416, as adjusted for stock splits and/or stock dividends. The Plan is
administered by the Compensation Committee (the "Committee") of the Board of
Directors. No member of such Committee is eligible to participate in the Plan.
The Company's Plan provided for the grant of certain securities to Officers
and other key employees of the Company, including Directors who were also
employees of the Company. Such securities which may have been granted under the
Plan included non-qualified stock options to acquire shares of the Company's
Class A Common Stock, which may be accompanied by SARs, and Contingent Stock,
which are shares of the Company's Class A Common Stock, issued subject to
certain restrictions.
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<PAGE>
Non-qualified options granted under the Plan must have had an option price
that is at least 100% of the fair market value of the Class A Common Stock on
the date of grant and no non-qualified option can be exercisable within one year
after the date of grant. Unless otherwise specified in the grant, non-qualified
options expire 10 years and one day after the date of grant.
USE OF PROCEEDS
The Company will not realize any proceeds upon the sale of the Shares of
Class A Common Stock issuable upon the exercise of the stock options. Upon the
issuance of an aggregate 196,875 Shares of Class A Common Stock upon the
exercise of a like number of outstanding stock options pursuant to the terms of
the Plan, the Company will receive gross proceeds of approximately $1,754,150.
The Company intends to use such proceeds for working capital purposes.
-3-
<PAGE>
SELLING SECURITY HOLDER
The following table lists the selling stockholder with respect to the Shares
of Class A Common Stock being registered hereunder; the number of Shares of
Class A Common Stock known to the Company to be held by such selling stockholder
as of October 1, 1997; the number of stock options granted pursuant to the Plan;
the number of Shares to be sold; and the number and percentage of outstanding
Shares of Class A Common Stock to be owned after the sale of the Shares
hereunder.
The selling stockholder intends to offer the Shares issuable upon exercise
of outstanding stock options for sale as a principal for his own account at any
time and from time to time on the New York Stock Exchange or otherwise, at
prices prevailing at the time of sale, or in private sales and at prices to be
negotiated. The selling stockholder is a Director and the Senior Vice President
of Sales and Marketing of the Company.
<TABLE>
<CAPTION>
Percentage of
Total Number of Shares of
Number Options Number of Shares of Class A Common
of Shares of Granted Shares of Class A Stock Owned (3)
Selling Class A Pursuant Class A Common --------------------
Stockholder Common to Common Stock Owned Before After
Stock the Plan Stock to Be After Offering Offering Offering
Owned Sold
=============================================================================================
<S> <C> <C> <C> <C> <C> <C>
David G. 215,296(1) 196,875 196,875(2) 18,421 2.2% .2%
Messinger
</TABLE>
- -----------------
(1) Includes 840 shares of Class A Common Stock held as custodian by Mr. David
G. Messinger for his minor children, and with respect to such shares, Mr.
Messinger disclaims beneficial ownership. Includes 196,875 shares of Class
A Common Stock issuable upon exercise of outstanding options. Excludes (as
of February 10, 1997) 7,409 shares of Class A Common Stock held of record by
the Company's 401(k) Plan for the benefit of Mr. Messinger, and with respect
to such shares, the trustees of such 401(k) Plan have sole voting power.
(2) In accordance with the terms of the stock options granted under the terms of
the Plan, an aggregate 108,281 options are currently exercisable by Mr.
Messinger. The exercisability of the options currently vest at the rate of
15% per annum. Accordingly, as of the date hereof, Mr. Messinger may only
sell an aggregate 108,281 Shares issuable upon exercise of the stock
options.
-4-
<PAGE>
(3) The percentage of Shares of Class A Common Stock owned before the offering
is based on 9,894,707 shares of Class A Common Stock outstanding as of
October 1, 1997, which includes shares issuable upon exercise of stock
options owned of record by Mr. Messinger. The percentage of Shares of Class
A Common Stock owned after the offering is also based on 9,894,707 shares of
Class A Common Stock. For each selling stockholder the percentage of shares
owned (before or after the offering) includes any derivative securities
owned by only such selling stockholder.
-5-
<PAGE>
INCORPORATION OF DOCUMENTS BY REFERENCE
The documents listed in (a) through (c) below are hereby incorporated by
reference to this Registration Statement on Form S-8; and all documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated herein by reference in this Registration Statement on Form S-8, and
shall be a part hereof from the date of the filing of such documents.
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 28, 1996.
(b) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since December 28, 1996.
(c) The description of the Registrant's Common Stock contained in Registration
Statements filed under the Securities Exchange Act of 1934, including any
amendment or report filed for the purpose of updating such description.
LEGAL OPINION
The legality of the securities being offered hereby is being passed upon by
Akerman, Senterfitt & Eidson, P.A., special counsel to the Registrant.
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
-6-
<PAGE>
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.
Further, the Registrant has adopted a charter provision pursuant to
Delaware law which purports to limit the liability of Directors for monetary
damages.
EXEMPTION FROM REGISTRATION CLAIMED
The stock options granted to the Officer and Director of the Company
pursuant to the Plan were issued without registration under the Securities Act
of 1933, as amended, in accordance with an exemption from registration provided
by Section 4(2) of such Act.
EXHIBITS
5.1 Opinion of Akerman, Senterfitt & Eidson, P.A., as to the legality of the
Securities being offered hereunder.
10.1* Bush Industries, Inc. 1985 Stock Plan.
23.1 The consent of Akerman, Senterfitt & Eidson, P.A., is included in the
opinion filed as Exhibit 5.1 to the Registration Statement.
23.2 Consent of Deloitte & Touche LLP, independent public accountants.
- --------------------
* Incorporated herein by reference to the Registrant's Registration
Statement of Form S-8, declared effective on July 27, 1993 (SEC File Number
33-66540). Amendments to the Plan are incorporated herein by reference to the
Registrant's Proxy Statement with respect to the Registrant's Annual Meeting of
Stockholders held on June 16, 1994.
-7-
<PAGE>
UNDERTAKINGS
1. The undersigned Registrant hereby undertakes 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. The undersigned Registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, 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. The undersigned Registrant hereby undertakes 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.
4. The undersigned Registrant hereby undertakes that 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's 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 such time shall be deemed to be
the initial bona fide offering thereof.
5. 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 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.
-8-
<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-8 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 15th day of
October, 1997.
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 date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Paul S. Bush Chairman of the Board of Directors, October 15, 1997
- -------------------- President and Chief Executive Officer
Paul S. Bush
/s/ Robert L. Ayres Executive Vice President, Chief October 15, 1997
- -------------------- Operating Officer, Chief Financial
Robert L. Ayres Officer and Director
/s/ Lewis H. Aronson Senior Vice President of Strategic October 15, 1997
- -------------------- Planning and Business Development
Lewis H. Aronson and Director
/s/ Douglas S. Bush Vice President of Merchandising October 15, 1997
- -------------------- and Director
Douglas S. Bush
</TABLE>
-9-
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Gregory P. Bush Vice President of Information October 15, 1997
- ---------------------- Technology and Director
Gregory P. Bush
/s/ Donald F. Hauck Senior Vice President and Director October 15, 1997
- ----------------------
Donald F. Hauck
/s/ David G. Messinger Senior Vice President of Sales and October 15, 1997
- ---------------------- Marketing and Director
David G. Messinger
/s/ Paul A. Benke Director October 15, 1997
- ----------------------
Paul A. Benke
/s/ Jerald D. Bidlack Director October 15, 1997
- ----------------------
Jerald D. Bidlack
/s/ Robert E. Hallagan Director October 15, 1997
- ----------------------
Robert E. Hallagan
</TABLE>
-10-
<PAGE>
EXHIBIT 5.1
<PAGE>
AKERMAN, SENTERFITT & EIDSON, P.A.
One S.E. Third Avenue
Miami, Florida 33131
October 14, 1997
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 196,875 shares of the Company's Class A Common Stock (the "Shares")
in a Registration Statement on Form S-8. The Shares are issuable upon exercise
of stock options issued in accordance with and under the terms of the Bush
Industries, Inc. 1985 Stock Plan (the "Plan").
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 Shares have been duly
authorized and when issued upon payment therefor in accordance with the terms of
the options granted under the Plan, 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.
<PAGE>
Bush Industries, Inc.
October 14, 1997
Page 2
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement on Form S-8 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>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
Board of Directors and Stockholders
Bush Industries, Inc.
We consent to the incorporation by reference in this Registration Statement of
Bush Industries, Inc. on Form S-8 of our report dated February 7, 1997,
appearing in this Annual Report on Form 10-K of Bush Industries, Inc. for the
year ended December 28, 1996.
DELOITTE & TOUCHE LLP
Buffalo, New York
October 14, 1997
