As filed with the Securities and Exchange Commission on July 24, 1998.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LECHTERS, INC.
(Exact name of registrant as specified in its charter)
New Jersey No. 13-2821526
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1 Cape May Street, Harrison,
New Jersey 07029-9998
(Address of principal executive office, including zip code)
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LECHTERS, INC.
1998 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
------------------
Donald Jonas
Chairman of the Board,
Chief Executive Officer and President
Lechters, Inc.
1 Cape May Street, Harrison, New Jersey, 07029
(973) 481-1100
(Name, address, and telephone number, including area code, of agent for service)
------------------
Copies to:
Bernard D. Fischman, Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019-5389
(212) 424-8000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------
Title of each Amount to be Proposed maximum Proposed maximum Amount of
class of securities registered* offering price aggregate offering registration fee
to be registered per share price**
- --------------------------------------------------------------------------------------------------------
Common Stock 1,000,000 $5.00 $5,000,000 $1,475
(without par value) shares
- --------------------------------------------------------------------------------------------------------
</TABLE>
*In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this
registration statement also covers any additional securities to be offered or
issued in connection with a stock split, stock dividend or similar transaction.
**Determined on the basis of the average of the high and low sale price on July
20, 1998, solely for the purpose of calculating the registration fee pursuant to
Rule 457(h) under the Securities Act of 1933.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have heretofore been filed by Lechters, Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are hereby incorporated by reference in this Registration Statement:
1. The Company's Annual Report on Form 10-K for the year ended January 31,
1998.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended May 2,
1998.
3. The description of the Company's Common Stock contained in Item 1 of the
Company's Registration Statement filed on Form 8-A pursuant to Section 12 of the
Securities Exchange Act of 1934 and any amendments thereto.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, 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 by reference in the registration
statement and to be part hereof from the date of filing of such documents.
Item 5. Interests of Named Experts and Counsel.
The financial statements and schedules of the Company, which are
incorporated herein by reference to the Company's Annual Report on Form 10-K for
the year ended January 31, 1998, have been audited by Deloitte & Touche LLP,
independent auditors, as indicated in their report with respect thereto. Such
financial statements and schedules are included herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
reports.
The legality of the shares of Common Stock of the Company will be passed
upon for the Company by LeBoeuf, Lamb, Greene & MacRae, L.L.P. Bernard D.
Fischman, a director and shareholder of Lechters, Inc., is Of Counsel to
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
Item 6. Indemnification of Directors and Officers.
Section 14A:3-5(2), (3) and (4) of the New Jersey Business Corporation Act
("NJBCA") provides that: "(2) Any corporation organized for any purpose under
any general or special law of this State shall have the power to indemnify a
corporate agent against his expenses and liabilities in connection with any
proceeding involving the corporate agent by reason of his being or having been
such a corporate agent, other than a proceeding by or in the right of the
corporation, if (a) such corporate agent 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 (b) with respect to any criminal proceeding, such corporate
agent had no reasonable cause to believe his conduct was unlawful.
II-1
<PAGE>
The termination of any proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendere or its equivalent, shall not of itself create a
presumption that such corporate agent did not meet the applicable standards of
conduct set forth in paragraphs 14A:3-5(2)(a) and 14A:3-5(2)(b). (3) Any
corporation organized for any purpose under any general or special law of this
State shall have the power to indemnify a corporate agent against his expenses
in connection with any proceeding by or in the right of the corporation to
procure a judgment in its favor which involves the corporate agent by reason of
his being or having been such corporate agent, if 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. However, in such proceeding no indemnification shall be
provided in respect of any claim, issue or matter as to which such corporate
agent shall have been adjudged to be liable to the corporation, unless and only
to the extent that the Superior Court or the court in which such proceeding was
brought shall determine upon application that despite the adjudication of
liability, but in view of all circumstances of the case, such corporate agent is
fairly and reasonably entitled to indemnity for such expenses as the Superior
Court or such other court shall deem proper. (4) Any corporation organized for
any purpose under any general or special law of this State shall indemnify a
corporate agent against expenses to the extent that such corporate agent has
been successful on the merits or otherwise in any proceeding referred to in
subsections 14A:3-5(2) and 14A:3-5(3) or in defense of any claim, issue or
matter therein."
Section B of Article SEVENTH of the Company's Restated Certificate of
Incorporation provides that: "every Corporate Agent of the Company who was or is
made a party or is threatened to be made a party to or is involved in any
Proceeding by reason of his or her service as a Corporate Agent of the Company,
whether or not the basis of such Proceeding is an alleged action in an official
capacity as a director, employee or agent or in any other capacity (including
service with respect to an employee benefit plan), shall be indemnified and held
harmless by the Company to the fullest extent permitted by the Act, as the same
exists today or may hereafter be amended (but, in the case of such amendment,
only to the extent that such amendment permits the Company to provide broader
indemnification rights than the Act permitted the Company to provide prior to
such amendment), against all Expenses and Liabilities (including without
limitation ERISA excise taxes or penalties). The rights provided herein are
intended to extend to all Proceedings (including, without limitation,
Proceedings by or in the right of the Company), and the indemnification against
Liabilities in connection with Proceedings by or in the right of the Company is
specifically provided for to the fullest extent permitted by law. The rights of
indemnification provided hereunder shall also include the right to the advance
of Expenses to the fullest extent permitted by law. The rights provided
hereunder shall not exclude any other rights to which a Corporate Agent may be
entitled under the bylaws of the Company or under any agreement, vote of
shareholders or otherwise."
NJBCA Section 14A:2-7(3) provides that: "The certificate of incorporation
may provide that a director or officer shall not be personally liable, or shall
be liable only to the extent therein provided, to the corporation or its
shareholders for damages for breach of any duty owed to the corporation or its
shareholders, except that such provision shall not relieve a director or officer
from liability for any breach of duty based upon an act or omission (a) in
breach of such person's duty of loyalty to the corporation or its shareholders,
(b) not in good faith or involving a knowing violation of law or (c) resulting
in receipt by such person of an improper personal benefit. As used in this
subsection, an act or omission in breach of a person's duty of loyalty means an
act or omission which that person knows or believes to be contrary to the best
interests
II-2
<PAGE>
of the corporation or its shareholders in connection with a matter in which he
has a material conflict of interest."
Article SIXTH of the Company's Restated Certificate of Incorporation
provides that: "No director or officer of the Company shall be personally liable
to the Company or its shareholders for damages for breach of any duty owed to
the Company or its shareholders, except that this Article Sixth shall not
relieve any director or officer from liability for any breach of duty based upon
an act or omission (a) in breach of such officer's or director's duty of loyalty
to the Company or its shareholders, (b) not in good faith or involving a knowing
violation of law or (c) resulting in receipt by such director or officer of an
improper personal benefit. No amendment to or repeal of this Article Sixth and
no amendment, repeal or termination of effectiveness of any law permitting the
exemption from liability provided for herein shall apply to or have any effect
on the liability or alleged liability of any director or officer for or with
respect to any acts or omissions of such director or officer occurring prior to
such amendment, repeal or termination of effectiveness."
The Company has an insurance policy insuring the Company and its directors
and officers against certain liabilities, including liabilities under the
Securities Act of 1933.
Item 8. Exhibits.
Exhibit No.
*4(a) Certificate of Incorporation of the Company, as restated
(incorporated herein by reference to Exhibit 3.2 to the Company's
Registration Statement, File No. 33-29465)
*4(b) By-laws of the Company (incorporated herein by reference to
Exhibit 3.2 to the Company's Registration Statement, File No.
33-40372)
*4(c) Preferred Stock Purchase Agreement dated April 5, 1996
(incorporated herein by reference to the Company's Annual
Report on Form 10-K for the year ended February 1, 1997)
*4(d) Indenture, dated as of September 27, 1991, between the Company
and Chemical Bank, as Trustee (Chase Manhattan Bank as
successor) (incorporated herein by reference to the Company's
Annual Report on Form 10-K for the year ended January 25,
1992)
5 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
23(a) Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included in
Exhibit 5)
23(b) Consent of Deloitte & Touche LLP
II-3
<PAGE>
24 Power of Attorney (included on the signature page)
* Incorporated herein by reference
Item 9. Undertakings.
The undersigned 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:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(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.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b), if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Securities and
Exchange Commission by the registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934, that are incorporated by reference in the
registration statement.
(2) 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) 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) 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 section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant
II-4
<PAGE>
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.
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 provisions described under Item 6 above, 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.
II-5
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, an officer
and/ or director of Lechters, Inc. (the "Company"), does hereby constitute Ira
S. Rosenberg his true and lawful attorney and agent with full power and
authority on his behalf to sign his name in such capacity to any and all
amendments (including post-effective amendments) to this Registration Statement
on Form S-8 and other necessary or appropriate forms or statements to be filed
with the Securities and Exchange Commission for the purpose of registering,
under the Securities Act of 1933 shares of common stock of the Company to be
issued pursuant to the Company's 1998 Long-Term Incentive Plan.
SIGNATURES
The Registrant. 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 Harrison, State of New Jersey on the 23rd day of
July, 1998.
LECHTERS, INC.
By: /s/ Donald Jonas
-----------------------------
Donald Jonas
Chairman of the Board,
Chief Executive Officer and
President
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<PAGE>
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 or dates indicated.
Signature Title Date
/s/ Donald Jonas Chairman of the Board, July 23, 1998
- ------------------------------- Chief Executive Officer
Donald Jonas and President
/s/ James J. Sheppard Senior Vice President and July 23, 1998
- ------------------------------- Chief Financial Officer
James J. Sheppard
/s/ Martin S. Begun Director July 23, 1998
- -------------------------------
Martin S. Begun
/s/ Charles A. Davis Director July 23, 1998
- -------------------------------
Charles A. Davis
/s/ Bernard D. Fischman Director July 23, 1998
- -------------------------------
Bernard D. Fischman
/s/ Robert Knox Director July 23, 1998
- -------------------------------
Robert Knox
II-7
<PAGE>
Signature Title Date
/s/ Anthony E. Malkin Director July 23, 1998
- ------------------------------
Anthony E. Malkin
/s/ Roberta S. Maneker Director July 23, 1998
- ------------------------------
Roberta S. Maneker
/s/ Norman Matthews Director July 23, 1998
- -------------------------------
Norman Matthews
/s/ John Wolff Director July 23, 1998
- -------------------------------
John Wolff
/s/ Stephen Westerfield Director July 23, 1998
- -------------------------------
Stephen Westerfield
II-8
<PAGE>
EXHIBIT INDEX
Exhibit
No. Page No.
*4(a) Certificate of Incorporation of the Company, as restated (incorporated
herein by reference to Exhibit 3.2 to the Company's Registration
Statement, File No. 33-29465)
*4(b) By-laws of the Company (incorporated herein by reference to Exhibit
3.2 to the Company's Registration Statement, File No. 33-40372)
*4(c) Preferred Stock Purchase Agreement dated April 5, 1996 (incorporated
herein by reference to the Company's Annual Report on Form 10-K for
the year ended February 1, 1997)
*4(d) Indenture, dated as of September 27, 1991, between the Company and
Chemical Bank, as Trustee, (Chase Manhattan Bank, as successor)
(incorporated herein by reference to the Company's Annual Report on
Form 10-K for the year ended January 25, 1992)
5 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
23(a) Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included in Exhibit
5)
23(b) Consent of Deloitte & Touche LLP
24 Power of Attorney (included on the signature page)
- ----------------------------------------
* Incorporated herein by reference
LeBoeuf, Lamb, Greene & MacRae
L.L.P.
A Limited Liability Partnership Including Professional Corporations
125 West 55th Street
New York, NY 10019-5389
(212) 424-8000
facsimile: (212-424-8500
July 23, 1998
Lechters, Inc.
1 Cape May Street
Harrison, New Jersey 07029-9998
Ladies and Gentlemen:
You have requested our opinion as counsel for Lechters, Inc., a New
Jersey Corporation (the "Company"), in connection with the Registration
Statement on Form S-8 (the "Registration Statement"), which the Company proposes
to file with the Securities and Exchange Commission on or shortly after the date
hereof under the Securities Act of 1933 with respect to 1,000,000 additional
shares (the "Shares") of Common Stock, without par value, of the Company, to be
issued pursuant to the Company's 1998 Long-Term Incentive Plan (the "Plan").
In connection with rendering this opinion, we have examined such
corporate records, certificates and other documents as we have considered
necessary for the purposes hereof. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as copies and the conformity to the original documents of all documents
submitted to us as copies and the authenticity of the originals of such latter
documents. As to any facts material to our opinion, we have, when relevant facts
were not independently established, relied upon the aforesaid records,
certificates and documents.
Based upon the foregoing, we advise you that in our opinion upon
issuance, delivery and payment therefor the Shares will be validly issued, fully
paid and non-assessable.
This opinion is limited to the laws of the State of New Jersey and the
Federal laws of the United States.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name therein under the caption
"Interests of Named Experts and Counsel."
Very truly yours,
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
Exhibit 23(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Lechters, Inc. (the "Registrant") covering 1,000,000 shares of
common stock, no par value, of the Registrant of our report dated March 18,
1998, appearing in the Annual Report on Form 10-K of the Registrant for the year
ended January 31, 1998. We also consent to the reference to us under the heading
"Interests of Named Experts and Counsel" in such Registration Statement.
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
July 24, 1998
