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As filed with the Commission on October 25, 2000 File No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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BROOKSTONE, INC.
(Exact name of registrant as specified in its charter)
Delaware 06-1182895
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
17 Riverside Street
Nashua, New Hampshire 03062
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(Address of principal executive offices, including zip code)
2000 EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plan)
Philip Roizin
Brookstone, Inc.
17 Riverside Street
Nashua, New Hampshire 03062
(603) 880-9500
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(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Proposed Amount of
Securities to be maximum maximum registration
to be registered offering aggregate fee
registered price per offering
share/(1)/ price/(1)/
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Common Stock, 75,000 $13.19 $989,250.00 $261.16
par value $0.001
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/(1)/ The offering price for the 75,000 shares to be registered has been
estimated solely for the purpose of determining the registration fee pursuant to
Rule 457(h) on the basis of the average of the high and low prices of
Brookstone, Inc. Common Stock, par value $0.001, reported on the NASDAQ National
Market System on October 18, 2000.
Exhibit Index on Page 7.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Registrant hereby incorporates the following documents herein by
reference:
(a) The Registrant's Annual Report on Form 10-K filed with the Securities
and Exchange Commission (the "Commission") on April 28, 2000.
(b) All reports filed pursuant to Section 13(a) or 15(d) of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the fiscal year covered by the Annual Report on Form
10-K.
(c) The description of the Common Stock of the Registrant contained in
the Registration Statement on Form S-1 originally filed with the
Commission on April 10, 1992 (File No. 33-47123) under the Securities
Act of 1933, as amended, under the caption "Description of Capital
Stock" incorporated by reference into the Registrant's Registration
Statement on Form 8-A filed with the Commission on March 22, 1993
under Section 12 of the Securities Exchange.
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15 of the Exchange Act prior to the filing of a post-effective
amendment to this Registration Statement that indicates that all securities
offered have been sold or which deregisters all securities then remaining unsold
shall be deemed incorporated herein by reference from the date of filing of such
documents.
Item 4. Description of Securities.
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Not required.
Item 5. Interests of Named Experts and Counsel.
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No material interests.
Item 6. Indemnification of Directors and Officers.
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Section 145 of the General Corporation Law of the State of Delaware, as
amended, provides that a corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another enterprise, against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding 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, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. Section 145 further provides that a corporation similarly
may indemnify any such person serving in any such capacity
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who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor, against expenses actually and reasonably
incurred in connection with the defense or settlement of such action or suit 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 and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or such other
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 indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 102(b) (7) of the General Corporation Law of the State of Delaware,
as amended, permits a corporation to include in its certificate of incorporation
a provision eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision shall not eliminate or limit
the liability of a director (i) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the General Corporation Law of the State of Delaware
(relating to unlawful payment of dividends and unlawful stock purchase and
redemption) or (iv) for any transaction from which the director derived an
improper personal benefit.
The Registrant's Restated Certificate of Incorporation provides that the
Company's directors shall not be liable to the Registrant or its stockholders
for monetary damages for breach of fiduciary duty as a director, except to the
extent that exculpation from liabilities is not permitted under the General
Corporation Law of the State of Delaware as in effect at the time such liability
is determined. The Restated Certificate of Incorporation further provides that
the registrant shall indemnify its directors and officers to the full extent
permitted by the laws of the State of Delaware.
The Company also maintains directors' and officers' liability insurance
with a limit of $10,000,000.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Exhibit
4. Brookstone, Inc. 2000 Employee Stock Purchase
Plan (Incorporated by reference to Exhibit A of
Proxy Statement accompanying the Registrant's
submission of Schedule 14A filed with the
Commission on May 11, 2000).
5. Opinion of Ropes & Gray.
23.1 Consent of PricewaterhouseCoopers LLP.
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23.2 Consent of Ropes & Gray (contained in the
opinion filed as Exhibit 5 to this registration
statement).
24. Power of Attorney.
Item 9. Undertakings
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(a) 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 this 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 this Registration
Statement and (iii) to include any material information
with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material
change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
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shall not apply if the information required to be included
in a post-effective amendment by those paragraphs is
contained in periodic reports filed 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 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 in the initial bona fide offering thereof; and
(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 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 that is incorporated by reference in this 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
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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.
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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 Form S-8 and has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
Nashua, New Hampshire, on this 7th day of March, 2000.
BROOKSTONE, INC.
By: /s/ Michael F. Anthony
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Michael F. Anthony
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 below by the following persons in the capacities and
on the dates indicated.
Signature Title
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/s/ Michael F. Anthony Chairman of the Board of Directors,
---------------------------------- President and Chief Executive Officer
Michael F. Anthony (Principal Executive Officer)
/s/ Philip Roizin Executive Vice President, Treasurer
---------------------------------- and Secretary
Philip Roizin (Principal Financial and Accounting Officer)
/s/ Mone Anathan, III Director
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Mone Anathan, III
/s/ Michael L. Glazer Director
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Michael L. Glazer
/s/ Kenneth Nisch Director
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Kenneth Nisch
/s/ Robert F. White Director
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Robert F. White
Date: October 25, 2000
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EXHIBIT INDEX
Exhibit
Number Title of Exhibit Page
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4. 2000 Employee Stock Purchase Plan (Incorporated by -
reference to Exhibit A of Proxy Statement accompanying
the Registrant's submission of Schedule 14A filed with
the Commission on May 11, 2000).
5. Opinion of Ropes & Gray. 8
23.1 Consent of PricewaterhouseCoopers LLP. 9
23.2 Consent of Ropes & Gray (contained in the opinion filed as -
Exhibit 5 to this registration statement).
24. Power of Attorney. 10
