<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. 1999 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 Amount of
Title of Securities Amount to be per unit (1) aggregate offering registration fee
to be Registered registered (1) share price (1) (1)
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common 350,000(2) $14.6875 $5,140,625 $1,557.77
Stock ($.10 par shares -------- ---------- ---------
value)
TOTAL $5,140,625 $1,557.77
========== =========
</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 1999 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 1999 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. 1999 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 auditors.
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 Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
3
<PAGE>
(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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/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
</TABLE>
5
<PAGE>
<TABLE>
<S> <C> <C>
/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
</TABLE>
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 350,000 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 award of Shares in accordance with and under the terms of the
Bush Industries, Inc. 1999 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, 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 10.1
BUSH INDUSTRIES, INC.
1999 STOCK PLAN
1. Purpose. The purpose of the Bush Industries, Inc. 1999 Stock Plan
(the "Plan") is to further the interests of Bush Industries, Inc. (the
"Company"), its subsidiaries and its stockholders by providing incentives in the
form of grants of stock bonuses to persons who contribute to the success and
profitability of the Company. The grants will recognize and reward outstanding
individual performances and contributions and will give such persons a
proprietary interest in the Company, thus enhancing their personal interest in
the Company's continued success and progress. This program will also assist the
Company, its affiliates, and its subsidiaries in attracting and retaining key
persons.
2. Definitions. The following definitions shall apply to this Plan:
(a) "Board" means the Board of Directors of the Company.
(b) "Common Stock" means the Class A Common Stock, par value $.10 per
share of the Company.
(c) "Company" means Bush Industries, Inc.
(d) "Plan" means this Bush Industries, Inc. 1999 Stock Plan.
(e) "Share" means a share of the Common Stock.
3. Administration. This Plan will be administered by either the Board of
Directors of the Company or a Committee appointed by the Board to administer the
Plan. The Board of Directors of the Company and/or the Committee, if one is
appointed, shall have the exclusive power to select the recipients of awards
pursuant to this Plan, to establish the terms of the awards granted to each
recipient, and to make all other determinations necessary or advisable under the
Plan. The Board and/or the Committee shall have the sole and absolute
discretion to determine whether the performance of a person warrants an award
under the Plan, and to determine the size and type of the award, and any and all
restrictions and/or limitations relating thereto. The Board and/or Committee
shall have the full and exclusive power to construe and interpret the Plan, to
prescribe, amend, and rescind rules and regulations relating to the Plan, and to
take all actions necessary or advisable for the Plan's administration. The
Board and/or the Committee, in the exercise of its powers, may correct any
defect or supply any omission, or reconcile any inconsistency in the Plan, or in
any agreement, in the manner and to the extent it shall deem necessary or
expedient to make the Plan fully effective. In exercising this power, the Board
and/or the Committee may retain counsel at the expense of the Company. Any
determinations made by the Board and/or the Committee will be final and binding
on all persons. A member of the Board and/or the Committee will not be liable
for performing any act
<PAGE>
or making any determination in good faith.
4. Shares Subject to Plan. Subject to the provisions of the Plan, the
maximum aggregate number of Shares that may be subject to awards under the Plan
shall be 350,000. If an award should expire, the Shares that were subject to
such award shall, unless the Plan has then terminated, be available for other
awards under the Plan.
5. Eligibility. Any person that the Committee in its sole discretion
designates is eligible to receive an award under this Plan. The Board's and/or
the Committee's grant of an award to a recipient in any year does not require
the Board and/or the Committee to grant an award to any such recipient in any
other year. Furthermore, the Board and/or the Committee may grant different
awards to different recipients and has full discretion to choose whether to
grant awards to any person. Recipients may include employees, agents,
independent contractors, consultants, Directors and/or Officers of the Company
and/or affiliates, provided that any such awards to such persons are deemed in
the best interest of the Company and its stockholders and/or its affiliates.
Notwithstanding anything contained herein to the contrary, no awards may be
given under the Plan to any Officers and/or Directors of the Company, unless the
Plan has been previously approved by the requisite vote of the Company's
stockholders. In addition, for purposes hereof, Officers shall mean Executive
Officers of the Company.
6. Taxes; Compliance with Law; Approval of Regulatory Bodies; Legends.
The Board and/or the Committee may make such provisions and take such steps as
it may deem necessary or appropriate for the withholding of any taxes that the
Company is required by any law or regulation of any governmental authority,
whether federal, state or local, domestic or foreign, to withhold in connection
with any award, including, but not limited to, (i) the withholding of delivery
of Shares until the holder reimburses the Company for the amount the Company is
required to withhold with respect to such taxes, (ii) the canceling of any
number of Shares in an amount sufficient to reimburse the Company for the amount
it is required to so withhold, or (iii) withholding the amount due from any such
person's wages or compensation due such person.
Awards can be granted, and Shares can be delivered under this Plan, only in
compliance with all applicable federal and state laws and regulations and the
rules of all stock exchanges on which the Company's Shares are listed at any
time. Shares awarded under this Plan may or may not be registered with the
Securities and Exchange Commission under the Securities Act of 1933, as amended.
Any certificate issued to evidence Shares issued under the Plan may bear
appropriate legends, and shall be subject to receipt by the Company of any
written representation and/or such transfer restrictions and/or limitations, as
the Board and/or Committee deems advisable to assure compliance with federal and
state laws and regulations and with the requirements of the Plan.
With respect to persons subject to Section 16 of the Securities Exchange
Act of 1934 ("1934 Act"), transactions under this Plan are intended to comply
with all applicable conditions of Rule 16b-3 under the 1934 Act, as such Rule
may be amended from time to time, or its successor under the 1934
2
<PAGE>
Act. To the extent any provision of the Plan or action by the Plan
administrators fails to so comply, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the Plan administrators.
7. Adjustment Upon Change of Shares. If a reorganization, merger,
consolidation, reclassification, recapitalization, combination or exchange of
shares, stock split, stock dividend, or other expansion or contraction of the
Common Stock of the Company occurs, the number and class of Shares for which
awards are authorized to be granted under this Plan shall be equitably adjusted
by the Board and/or the Committee to reflect such changes.
8. Liability of the Company. The Company and/or its affiliates shall not
be liable to any person for any tax consequences incurred by a recipient or
other person with respect to an award.
9. Awards.
(a) The Company and/or the Committee may, from time to time, award its
employees, agents, independent contractors, consultants, Directors and/or
Officers of the Company and/or affiliates, except as otherwise provided herein,
Shares subject to the restrictions and/or limitations herein set forth and such
other restrictions and/or limitations as the Company and/or the Committee shall
determine.
(b) Shares may be awarded for such consideration as the Company and/or
the Committee shall determine, and may be awarded for no or a nominal amount of
money or other property. If an award is in the form of a sale, the terms and
conditions of sale shall be determined by the Company and/or the Committee.
Shares may be sold at a purchase price which is less than fair market value (as
determined in good faith by the Company and/or the Committee) on the date of
sale and may be paid for, subject to the applicable law and regulation, in whole
or in part, by a promissory note, which may be secured or unsecured and which
may or may not be non-recourse to the maker.
(d) The award of Shares shall be evidenced by a written instrument in
such form and upon such terms and conditions as the Company and/or the Committee
shall determine. Notwithstanding anything to the contrary herein, the Company
and/or the Committee, in its sole discretion, may at any time and from time to
time, relax or remove any restrictions and/or limitations it determines with
respect to the Shares and the grant thereof.
10. Amendment and Termination of Plan. The Board may alter, amend, or
terminate this Plan from time to time without approval of the stockholders of
the Company. The Board may, however, condition any amendment on the approval of
the stockholders of the Company if such approval is necessary or advisable with
respect to tax, securities or other applicable laws to which the Company, the
Plan and/or recipients of an award under the Plan are or may be subject.
11. Expenses of Plan. The Company shall bear the expenses of
administering the Plan.
3
<PAGE>
12. Applicable Law. The validity, interpretation, and enforcement of this
Plan are governed in all respects by the laws of the State of Delaware, without
application to the principles of conflicts of laws.
13. Effective Date. The effective date of this Plan shall be the date on
which the Board adopts the Plan.
14. Not a Contract of Employment. Nothing contained in the Plan or in any
agreement executed pursuant hereto shall be deemed to confer upon a recipient
any right to remain in the employ of the Company and/or its affiliates or in any
way limit the right of the Company and/or its affiliates to terminate the
employment of a recipient, or to terminate any other relationship with a
recipient, including that of independent contractor or consultant.
15. Other Compensation Plans. The adoption of this Plan shall not affect
any other stock option plan, incentive plan or any other compensation plan in
effect for the Company, nor shall this Plan preclude the Company from
establishing any other form of stock option plan, incentive plan or any other
compensation plan.
4
<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
