<PAGE>
As filed with the Securities and Exchange Commission on November 3, 1999
Registration No. _________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BUSH INDUSTRIES, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 16-0837346
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Mason Drive, Jamestown, New York 14702
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Bush Industries, Inc. 1995 Stock Plan
- --------------------------------------------------------------------------------
(Full title of the plan)
Robert L. Ayres, Chief Financial Officer,
One Mason Drive, Jamestown, New York 14702
- --------------------------------------------------------------------------------
(Name and address of agent for service)
(716) 665-2000
- --------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Proposed
maximum Proposed
offering price maximum
Title of securities Amount to be per unit (1) aggregate offering Amount of
to be registered registered (1) share price (1) registration fee (1)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common 375,000(2) $14.6875 $5,507,813 $1,669.03
Stock ($.10 par shares ------- --------- --------
value)
TOTAL $5,507,813 $1,669.03
========= ========
</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. (the
"Registrant"), issuable upon the grant of stock awards under the
Registrant's 1995 Stock Plan.
i
<PAGE>
PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in Bush Industries, Inc.'s 1995 Stock
Plan, as specified by Rule 428 (b) (1), promulgated by the Securities and
Exchange Commission (the "Commission"), under the Securities Act of 1933, as
amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
(Not Required in Prospectus)
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Registrant with the Commission are
incorporated herein by reference.
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended January 2, 1999.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended July 3, 1999.
(c) The description of the Registrant's Common Stock contained in
Registration Statements filed under the Securities Exchange Act
of 1934 (the "Exchange Act"), including any amendment or report
filed for the purpose of updating such description.
In addition, all documents filed by the Registrant with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the
date of this Registration Statement and prior to the termination of the offering
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of the filing of such document with the
Commission. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of the
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or superseded such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of the Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. 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.
2
<PAGE>
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits filed as part of this Registration Statement are as
follows:
EXHIBIT
NUMBER DESCRIPTION
------- -----------
5.1 -- Opinion of Akerman, Senterfitt & Eidson, P.A., as to the
legality of the securities being offered hereunder.
10.1 -- Bush Industries, Inc. 1995 Stock Plan. (1)
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 auditors
(1) Incorporated herein by reference to the
Registrant's Proxy Statement with respect to the
Registrant's Annual Meeting of Stockholders held on May
18, 1995.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
A. (1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act.
(ii) To reflect in the Prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed or furnished to the Commission
by the
3
<PAGE>
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act, and
is, therefore unenforceable in the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred 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 of whether such indemnification by it is against
public policy and as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
4
<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 2nd day of
November, 1999.
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.
Signature Title Date
- --------- ----- ----
/s/ Paul S. Bush Chairman of the Board of Directors, November 2, 1999
- ---------------------- President and Chief Executive Officer
Paul S. Bush
/s/ Robert L. Ayres Executive Vice President, Chief November 2, 1999
- ---------------------- Operating Officer, Chief Financial
Robert L. Ayres Officer and Director
/s/ Lewis H. Aronson Senior Vice President of November 2, 1999
- ---------------------- Operations and Director
Lewis H. Aronson
/s/ Douglas S. Bush Vice President of Merchandising November 2, 1999
- ---------------------- and Director
Douglas S. Bush
/s/ Gregory P. Bush Vice President of Furniture Research November 2, 1999
- ---------------------- and Development and Advanced Systems
Gregory P. Bush Technology and Director
/s/ Donald F. Hauck Senior Vice President and Director November 2, 1999
- ----------------------
Donald F. Hauck
/s/ David G. Messinger Senior Vice President of Sales and November 2, 1999
- ---------------------- Marketing and Director
David G. Messinger
5
<PAGE>
/s/ Paul A. Benke Director November 2, 1999
- ----------------------
Paul A. Benke
/s/ Jerald D. Bidlack Director November 2, 1999
- ----------------------
Jerald D. Bidlack
/s/ Robert E. Hallagan Director November 2, 1999
- ----------------------
Robert E. Hallagan
/s/ David G. Dawson Director November 2, 1999
- ----------------------
David G. Dawson
6
<PAGE>
EXHIBIT 5.1
AKERMAN, SENTERFITT & EIDSON, P.A.
One S.E. Third Avenue
Miami, Florida 33131
November 2, 1999
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 375,000 shares of the Company's Class A Common Stock
(the "Shares") in a Registration Statement on Form S-8. The Shares are issuable
upon the exercise of stock options or the award of Shares in accordance with and
pursuant to the terms of the Bush Industries, Inc. 1995 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
and conditions of the Plan and, if applicable, upon the terms and conditions of
options relating to such Shares, 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-8 relating to the Shares, as filed under the
Securities Act of 1933, as amended, with the Securities and Exchange Commission.
Very truly yours,
/s/ AKERMAN, SENTERFITT & EIDSON, P.A.
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Bush Industries, Inc. on Form S-8 of our report dated February 12, 1999,
appearing in the Annual Report on Form 10-K of Bush Industries, Inc. for the
year ended January 2, 1999.
/s/ DELOITTE & TOUCHE LLP
Buffalo, New York
November 2, 1999
