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As filed with the Securities and Exchange Commission on July 20, 2000
Registration No. _____________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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
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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. 1995 Stock Plan
--------------------------------------------------------------------------------
(Full title of the plan)
Robert L. Ayres, Chief Financial Officer, One Mason Drive, Jamestown, New York
14702
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(Name and address of agent for service)
(716) 665-2000
--------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
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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 Stock 875,000(2) shares $13.625 $11,921,875 $3,147.38
($.10 par value) ------ ---------- --------
TOTAL $11,921,875 $3,147.38
=========== =========
</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 exercise of stock options granted or to be
granted in accordance with the Registrant's 1995 Stock Plan (the "Plan"),
and/or shares of Class A Common Stock issuable upon the grant of stock
awards under the Plan. The Registrant has previously filed a Registration
Statement on Form S-8 with respect to the issuance of up to an aggregate
375,000 shares of Class A Common Stock in accordance with the terms of the
Plan. This Registration Statement on Form S-8 supersedes such previously
filed Registration Statement on Form S-8.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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.
The documents incorporated by reference in Item 3 of Part II hereof,
are available without charge, upon written or oral request by participants in
the Plan, and which documents were incorporated by reference in the Section
10(a) prospectus. Other documents required to be delivered to participants in
accordance with Rule 428(b) of the Securities Act are also available without
charge, upon written or oral request. Any such requests should be directed to
the Registrant's Treasurer, One Mason Drive, Jamestown, New York 14702
(716-665-2000).
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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 1, 2000.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended April 1, 2000.
(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 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 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 and/or officer
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)
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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 of 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.
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)
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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.
(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. The undersigned Registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is incorporated
by reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
D. 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.
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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 19th day of
July, 2000.
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, July 19, 2000
------------------------------------ President and Chief Executive Officer
Paul S. Bush
/s/ Robert L. Ayres Executive Vice President, Chief July 19, 2000
------------------------------------ Operating Officer, Chief Financial
Robert L. Ayres Officer and Director
/s/ Lewis H. Aronson Senior Vice President of Operations July 19, 2000
------------------------------------ and Director
Lewis H. Aronson
/s/ Douglas S. Bush Vice President of Merchandising July 19, 2000
------------------------------------ and Director
Douglas S. Bush
/s/ Gregory P. Bush Senior Vice President of Product July 19, 2000
------------------------------------ Development and Research and
Gregory P. Bush Development and Director
/s/ Donald F. Hauck Senior Vice President and Director July 19, 2000
------------------------------------
Donald F. Hauck
/s/ David G. Messinger Senior Vice President of Sales and July 19, 2000
------------------------------------ Marketing and Director
David G. Messinger
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Paul A. Benke Director July 19, 2000
------------------------------------
Paul A. Benke
/s/ Jerald D. Bidlack Director July 19, 2000
------------------------------------
Jerald D. Bidlack
/s/ David G. Dawson Director July 19, 2000
------------------------------------
David G. Dawson
/s/ Robert E. Hallagan Director July 19, 2000
------------------------------------
Robert E. Hallagan
/s/ Erland E. Kailbourne Director July 19, 2000
------------------------------------
Erland E. Kailbourne
</TABLE>
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