<PAGE> 1
As filed with the Securities and Exchange Commission on November 5, 1996
Registration No. 333-14895
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
Amendment No. 1
to
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
____________
MARKS BROS. JEWELERS, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-1433610
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
155 N. Wacker Drive
Chicago, Illinois 60606
(Address of Principal Executive Offices) (Zip Code)
Marks Bros. Jewelers, Inc. 1996 Long-Term Incentive Plan
Marks Bros. Jewelers, Inc. 1995 Executive Incentive Stock Option Plan
Marks Bros. Jewelers, Inc. 1995 Incentive Stock Option Plan
(Full title of the plan)
John R. Desjardins
Executive Vice President, Finance and Administration
Marks Bros. Jewelers, Inc.
155 N. Wacker Drive
Chicago, Illinois 60606
(Name and address of agent for service)
(312) 782-6800
(Telephone number, including
area code, of agent for service)
_______________
<PAGE> 2
PROSPECTUS
126,700 SHARES
MARKS BROS. JEWELERS, INC.
COMMON STOCK
($.001 PAR VALUE)
This prospectus relates to 126,700 shares of Common Stock, $.001 par value
per share, (the "Common Stock"), of Marks Bros. Jewelers, Inc., a Delaware
corporation (the "Company"), issued pursuant to the Marks Bros. Jewelers, Inc.
1995 Executive Incentive Stock Option Plan and the Marks Bros. Jewelers, Inc.
1995 Incentive Stock Option Plan (the "1995 Plans") which may be offered for
sale from time to time by certain officers of the Company (the "Selling
Stockholders").
It is anticipated that the Common Stock may be offered for sale by one or
more of the Selling Stockholders, in their discretion, on a delayed or
continuous basis from time to time in transactions in the open market at prices
prevailing at the time of sale, or in private transactions at negotiated prices
or otherwise. Such transactions may be effected directly by the Selling
Stockholders, each acting as principal for his own account. Alternatively,
such transactions may be effected through brokers, dealers or other agents
designated from time to time by the Selling Stockholders, and such brokers,
dealers or other agents may receive compensation in the form of customary
brokerage commissions or concessions from the Selling Stockholders or the
purchasers of the Common Stock. The Selling Stockholders, brokers who execute
orders on their behalf and other persons who participate in the offering of the
Common Stock on their behalf may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act of 1933, as amended (the
"Securities Act") and a portion of the proceeds of sales and commissions or
concessions therefore may be deemed underwriting compensation for purposes of
the Securities Act. However, any securities covered by this Prospectus which
qualify for sale pursuant to Rule 144 under the Securities Act may be sold
under Rule 144 rather than pursuant to this Prospectus. The Company will not
receive any part of the proceeds from the sale of Common Stock by the Selling
Stockholders.
The Company will pay all costs and expenses incurred by it in connection
with the registration of the Common Stock under the Securities Act. The Selling
Stockholders will pay the costs associated with any sales of Common Stock,
including any discounts, commissions and applicable transfer taxes.
One or more supplements to this Prospectus may be filed pursuant to Rule
424 or otherwise, under the Securities Act to describe material arrangements for
the sale of the Common Stock, if any, when such arrangements are entered into by
the Selling Stockholders.
The Common Stock is traded on the Nasdaq National Market (Nasdaq Symbol:
MBJI). On November 1, 1996, the last sale price of the Common Stock, as
reported on the Nasdaq National Market was $21.875 per share.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is November 5, 1996
<PAGE> 3
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE
OFFERING MADE BY THIS PROSPECTUS, AND IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR THE SELLING STOCKHOLDERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
BUY THE SECURITIES TO WHICH THIS PROSPECTUS RELATES IN ANY JURISDICTION TO ANY
PERSON TO WHOM IT IS NOT LAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION IN SUCH
JURISDICTION. NEITHER DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR SINCE THE DATE AS
OF WHICH INFORMATION IS SET FORTH HEREIN.
IN CONNECTION WITH THIS OFFERING THE DEALERS OR BROKERS ACTING IN
CONNECTION HEREWITH MAY ENGAGE IN PASSIVE MARKET MAKING TRANSACTIONS IN THE
COMMON STOCK ON THE NASDAQ NATIONAL MARKET IN ACCORDANCE WITH RULE 10b-6A UNDER
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. SEE PLAN OF DISTRIBUTION.
------------------------
TABLE OF CONTENTS
PAGE
Available Information ...................................... 3
Incorporation of Documents by Reference..................... 4
The Company ................................................ 5
Use of Proceeds ............................................ 5
Selling Stockholders ....................................... 5
Plan of Distribution ....................................... 6
Indemnification Under the Securities Act ................... 7
Experts .................................................... 7
2
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the periodic reporting and other
informational requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and in accordance therewith, files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). These reports, proxy statements and other information
may be inspected and copied at the public reference facilities maintained by
the Commission at Room 204, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, or at its regional offices located at Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven World
Trade Center, Suite 1300, New York, New York 10048, or on the Web site
maintained by the Commission, which contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission, the address of which is http://www.sec.gov. Copies of
such material can also be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C., 20549, at prescribed
rates.
The Company has filed with the Commission a Registration Statement on
Form S-8 (the "Registration Statement") under the Securities Act for the
registration of the Common Stock offered hereby. This Prospectus, which
constitutes a part of the Registration Statement, does not contain all of the
information set forth in the Registration Statement, certain items of which are
contained in exhibits and schedules to the Registration Statement as
permitted by the rules and regulations of the Commission. For further
information with respect to the Company and the securities offered hereby,
reference is made to the Registration Statement, including the exhibits
thereto, and financial statements and notes and schedules filed therewith or
incorporated therein by reference. Statements made in this Prospectus
concerning the contents of any document referred to herein are not necessarily
complete. With respect to each such document filed with the Commission as an
exhibit to the Registration Statement or incorporated therein by reference,
reference is made to the document for a more complete description of the matter
involved, and each such statement shall be deemed qualified in its entirety by
such reference.
The Registration Statement, including the exhibits thereto, may be
inspected without charge at the Commission's principal office at 450 Fifth
Street, N.W., Washington, D.C. 20549. Copies of the Registration Statement and
the exhibits thereto may be obtained from the Commission upon payment of the
prescribed fees.
3
<PAGE> 5
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents which have heretofore been filed by the Company
with the Commission pursuant to the Exchange Act are incorporated by reference
herein and shall be deemed to be a part hereof:
1. The Company's Prospectus dated November 1, 1996, as filed with
the Commission on November 1, 1996 pursuant to Rule 424(b)(4)
under the Securities Act, which is part of the Company's
Registration Statement on Form S-1, as amended (Registration No.
333-13903);
2. All reports filed by the Company pursuant to Section 13(a)
and 15(d) of the Exchange Act since January 31, 1996; and
3. The description of the Common Stock, par value $.001 per share,
("Common Stock"), of the Company contained in the Company's
Report on Form 8-A, dated April 10, 1996.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the termination of the offering of the Common Stock under this Prospectus shall
be deemed to be incorporated by reference herein and made a part hereof from
their respective dates of filing (such documents, and the documents enumerated
above, being hereinafter referred to as "Incorporated Documents") except as to
any portion of any future Annual or Quarterly Report to Stockholders which is
not deemed to be filed under said provisions.
Any statements contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed Incorporated
Document modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents referred to
above which have been or may be incorporated in this Prospectus by reference,
other than exhibits to such documents. Written or oral requests for such
copies should be directed to Mr. John R. Desjardins, Marks Bros. Jewelers, Inc.
155 N. Wacker Dr., Suite 500, Chicago, Illinois 60606; telephone (312)
782-6800.
4
<PAGE> 6
THE COMPANY
Marks Bros. Jewelers, Inc. is a leading, national specialty retailer of
fine jewelry, operating 163 stores in 24 states at November 1, 1996.
The Company is a Delaware corporation, with its principal executive
offices located at 155 N. Wacker Dr., Suite 500, Chicago, Illinois 60606;
telephone (312) 782-6800.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the shares
of Common Stock offered hereby. The Selling Stockholders will receive all of
the net proceeds from the sale of the shares of Common Stock offered hereby.
SELLING STOCKHOLDERS
This Prospectus relates to shares of Common Stock that were issued to
each of Hugh M. Patinkin, John R. Desjardins, Matthew M. Patinkin and Lynn D.
Eisenheim pursuant to the exercise of options under the 1995 plans. The shares
of Common Stock were subject to certain vesting criteria, all of which were
satisfied as of May 7, 1996.
<TABLE>
<CAPTION>
Name of Shares
Beneficial Ownership Prior to the Being Ownership After the
Owner Offering Offered Offering (1)
- --------------------------------------------------------------------------------------
Number Number Percent
------ -------------------
<S> <C> <C> <C> <C>
Hugh M. Patinkin 714,586(2) 72,800 641,786 7.5
John R. Desjardins 332,723(3) 12,000 320,723 3.8
Matthew M. Patinkin 450,848(4) 31,900 418,948 4.9
Lynn D. Eisenheim 72,286(5) 10,000 62,286 *
</TABLE>
(1) Assumes offer and sale of all shares of Common Stock eligible to be
offered and sold hereby by the Selling Stockholders.
(2) Includes 155,537 shares of Common Stock issuable pursuant to presently
exercisable stock options. Includes 206,035 shares beneficially owned by Hugh
M. Patinkin, which shares are held by Sheila C. Patinkin and Robert Bergman, as
Trustees of the Hugh M. Patinkin 1994 Family Trust U/A/D 11/18/94. Includes
23,376 shares held by Hugh M. Patinkin and Sheila C. Patinkin, as Trustees of
various trusts for the benefit of their children, all of which such shares are
subject to shared voting power by Hugh M. Patinkin and Sheila C. Patinkin.
Includes 11,120 shares held by Hugh M. Patinkin, Sheila C. Patinkin and Harold
Patinkin, as Trustees of various trusts for the benefit of the children of Hugh
M. Patinkin and Sheila C. Patinkin, all of which such shares are subject to
shared voting power by Hugh M. Patinkin, Sheila C. Patinkin and Harold Patinkin.
Includes 36,451 shares held by Hugh M. Patinkin, Mark A. Patinkin and Matthew M.
Patinkin, as Trustees of the Patinkin 1994 Grandchildren's Trust U/A/D 11/18/94,
with respect to which shares Hugh M. Patinkin, Mark A. Patinkin and Matthew M.
Patinkin share voting power.
(3) Includes 142,603 shares of Common Stock issuable pursuant to presently
exercisable stock options. Includes 22,282 shares beneficially owned by John R.
Desjardins, which shares are held by Cheryl Desjardins and Stephen Kendig, as
Trustees of the John R. Desjardins 1995 Family Trust U/A/D 12/28/95. Shares
beneficially owned by Mr. Desjardins include shares allocated to his account in
the Marks Bros. Jewelers, Inc. Employee Stock Ownership Trust (approximately
12,053 shares) as to which he has voting power.
(4) Includes 92,734 shares of Common Stock issuable pursuant to presently
exercisable stock options. Includes 114,235 shares beneficially owned by
Matthew M. Patinkin, which shares are held by Robin J. Patinkin and Debra
Soffer, as Trustees of the Matthew M. Patinkin 1994 Family Trust U/A/D 12/19/94.
Includes 16,646 shares held by Matthew M. Patinkin and Robin J. Patinkin, as
Trustees of various trusts for the benefit of their children, all of which such
shares are subject to shared voting power by Matthew M. Patinkin and Robin J.
Patinkin. Includes 8,854 shares held by Robin J. Patinkin, as Trustee of
various trusts for the benefit of the children of Matthew M. Patinkin and Robin
J. Patinkin, with respect to which shares Matthew M. Patinkin disclaims
beneficial ownership. Includes 36,451 shares held by Matthew M. Patinkin, Hugh
M. Patinkin and Mark A. Patinkin, as Trustees of the Patinkin 1994
Grandchildren's Trust U/A/D 11/18/94, with respect to which shares Matthew M.
Patinkin, Hugh M. Patinkin and Mark A. Patinkin share voting power.
(5) Includes 59,040 shares of Common Stock issuable pursuant to presently
exercisable stock options. Shares beneficially owned by Mr. Eisenheim include
shares allocated to his account in the Marks Bros. Jewelers, Inc. Employee
Stock Ownership Trust (approximately 3,246) as to which he has voting power.
* Less than 1%
Mr. Hugh M. Patinkin has served as President and Chief Executive Officer
of the Company since 1989 and was elected its Chairman in February 1996. He has
served as a director from 1979 to 1988 and from 1989 to the present. He joined
the Company as its Assistant Secretary in 1979.
Mr. John R. Desjardins joined the Company in 1979 and has served as
Executive Vice President, Finance and Administration, Treasurer and Secretary
and as a director of the Company since 1989.
Mr. Matthew M. Patinkin joined the Company in 1979 and has served as
Executive Vice President, Store Operations and as a director of the Company
since 1989.
Mr. Lynn D. Eisenheim joined the Company in 1991 and has served since
that time as its Executive Vice President, Merchandising.
5
<PAGE> 7
PLAN OF DISTRIBUTION
The Common Stock is being sold by the Selling Stockholders acting as
principals for their own account. The Company will not be entitled to any
proceeds from the sale of any Common Stock sold by the Selling Stockholders as
part of this offering.
The Common Stock may be sold from time to time to purchasers directly
by any of the Selling Stockholders. Alternatively, the Selling Stockholders
may sell the Common Stock in one or more transactions (which may involve one or
more block transactions) on the Nasdaq National Market, in sales occurring in
the public market, in privately negotiated transactions, or in a combination of
such transactions; each sale may be made either at market prices prevailing at
the time of such sale or at negotiated prices; some or all of the Common Stock
may be sold through brokers acting on behalf of the Selling Stockholders or to
dealers for resale by such dealers; and in connection with such sales, such
brokers or dealers may receive compensation in the form of discounts, fees or
commissions from the Selling Stockholders and/or the purchasers of such shares
for whom they may act as broker or agent (which discounts, fees or commissions
are not anticipated to exceed those customary in the types of transactions
involved). However, any securities covered by this Prospectus which qualify
for sale pursuant to Rule 144 under the Securities Act may be sold under Rule
144 rather than pursuant to this Prospectus. All expenses of registration
incurred in connection with this offering are being borne by the Company, but
all brokerage commissions and other expenses incurred by individual Selling
Stockholders will be borne by each such Selling Stockholder.
The Selling Stockholders and any dealer acting in connection with the
offering or any broker executing selling orders on behalf of the Selling
Stockholders may be deemed to be "underwriters" within the meaning of section
2(11) of the Securities Act, in which event any profit on the sale of any or
all of the Common Stock by them and any discounts or concessions received by
any such brokers or dealers may be deemed to be underwriting discounts and
commissions under the Securities Act. It is not currently expected that any
such sales would be deemed to constitute a "distribution" as defined in Rule
10b-6 promulgated under the Exchange Act. However, it is possible that, under
certain circumstances, such a distribution could be involved and, in such a
case, pursuant to regulations promulgated by the Commission, market makers in
the Common Stock who are underwriters with respect to the shares offered hereby
("passive market makers") may, subject to certain limitations, make bids for or
purchases of shares of Common Stock until the earlier of the time of
commencement (the "Commencement Date") of offers or sales of the Common Stock
contemplated by this Prospectus or the time at which a stabilizing bid for such
shares is made. In general, on and after the date two days prior to the
Commencement Date (1) such market maker's net daily purchases of the Common
Stock may not exceed 30% of the average daily trading volume in such stock for
the two full consecutive calendar months immediately preceding the filing date
of the registration statement of which this Prospectus forms a part, (2) such
market maker may not effect transactions in, or display bids for, the Common
Stock at a price that exceeds the highest bid for the Common Stock by persons
who are not passive market makers and (3) bids made by passive market makers
must be identified as such.
Any broker or dealer participating in any distribution of Common Stock
in connection with this offering may be deemed to be an "underwriter" within
the meaning of section 2(11) of the Securities Act and may be required to
deliver a copy of this Prospectus, including a Prospectus Supplement, to any
person who purchases any of the Common Stock from or through such broker or
dealer.
In order to comply with the securities laws of certain states, if
applicable, the Common Stock will be sold only through registered or licensed
brokers or dealers. In addition, in certain states, the shares may not be sold
unless they have been registered or qualified for sale in such state or an
exemption from such registration or qualification requirement is available and
is complied with.
There is no assurance that the Selling Stockholders will sell any or
all of the shares of Common Stock offered hereby.
6
<PAGE> 8
INDEMNIFICATION UNDER THE SECURITIES ACT
In accordance with Section 102(b)(7) of the General Corporation Law of
Delaware, Article Eighth of the Company's Restated Certificate of Incorporation
contains a provision providing that no director of the Company shall be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director except for breach of the director's duty
of loyalty to the Company or its stockholders, acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
unlawful payment of dividends, unlawful stock redemptions or repurchases and
transactions from which the director or officer derived an improper personal
benefit.
Section 145 of the General Corporation Law of Delaware permits or requires
indemnification of directors, officers and employees of a corporation under
certain conditions and subject to certain limitations. Article Ninth of the
Company's Restated Certificate of Incorporation and Article VI of the Company's
Restated Bylaws contain provisions for the indemnification of directors,
officers and employees of the Company generally within the limitations of
Sections 145.
The Company has a directors' and officers' liability insurance policy which
provides for indemnification of its directors and officers against certain
liabilities incurred in their capacities as such, which may include liabilities
under the Securities Act.
Rodney L. Goldstein and Samuel B. Guren are each covered by agreements with
Frontenac Venture V Limited Partnership and William Blair Venture Partners III,
respectively, which provide indemnification for such persons against certain
liabilities that may arise by reason of their status as a director of certain
entities, including the Company.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
EXPERTS
The financial statements and financial statement schedule of the Company as
of January 31, 1995 and 1996 and for each of the three years in the period ended
January 31, 1996, appearing in the Company's Prospectus dated November 1, 1996,
which is part of the Company's Registration Statement on form S-1, as amended
(Registration No. 333-13903), have been audited by Coopers & Lybrand L.L.P.,
independent public accountants, as set forth in their report dated February 27,
1996, except as to note 14 which is as of August 22, 1996, accompanying such
financial statements and financial statement schedule, and are incorporated
herein by reference in reliance upon the report of such firm, which report is
given upon their authority as experts in accounting and auditing.
7
<PAGE> 9
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities
Act"), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have heretofore been filed by Marks Bros.
Jewelers, Inc. (the "Company" or the "Registrant"), with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are incorporated by reference herein
and shall be deemed to be a part hereof:
1. The Company's Prospectus dated November 1, 1996, as
filed with the Commission on November 1, 1996 pursuant to Rule
424(b)(4) under the Securities Act, which is part of the
Company's Registration Statement on Form S-1, as amended
(Registration No. 333-13903);
2. All reports filed by the Company pursuant to Section 13(a) and
15(d) of the Exchange Act since January 31, 1996; and
3. The description of the Common Stock, par value
$.001 per share, ("Common Stock"), of the Company contained in
the Company's Report on Form 8-A, dated April 10, 1996.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this Registration Statement 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 this Registration Statement and made a part hereof from their
respective dates of filing (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents") except as to any
portion of any future Annual or Quarterly Report to Stockholders which is not
deemed to be filed under said provisions.
Any statements contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
II-1
<PAGE> 10
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In accordance with Section 102(b)(7) of the General Corporation Law of
Delaware, Article Eighth of the Company's Restated Certificate of Incorporation
contains a provision providing that no director of the Company shall be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director except for breach of the director's duty
of loyalty to the Company or its stockholders, acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
unlawful payment of dividends, unlawful stock redemptions or repurchases and
transactions from which the director or officer derived an improper personal
benefit.
Section 145 of the General Corporation Law of Delaware permits or requires
indemnification of directors, officers and employees of a corporation under
certain conditions and subject to certain limitations. Article Ninth of the
Company's Restated Certificate of Incorporation and Article VI of the Company's
Restated Bylaws contain provisions for the indemnification of directors,
officers and employees of the Company generally within the limitations of
Section 145.
The Company has a directors' and officers' liability insurance policy
which provides for indemnification of its directors and officers against
certain liabilities incurred in their capacities as such, which may include
liabilities under the Securities Act.
Rodney L. Goldstein and Samuel B. Guren are each covered by agreements
with Frontenac Venture V Limited Partnership and William Blair Venture Partners
III, respectively, which provide indemnification for such persons against
certain liabilities that may arise by reason of their status as a director of
certain entities, including the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
With respect to the issuance of restricted securities reoffered or resold
pursuant to this Registration Statement, the Registrant relied on exemption
from registration under the Securities Act pursuant to Section 4(2) thereof and
pursuant to Rule 701 thereunder. Such securities were issued to the Selling
Stockholders pursuant to the 1995 Plans.
ITEM 8. EXHIBITS.
The exhibits accompanying this Registration Statement are listed
on the accompanying Exhibit Index. The Plan is not intended to be qualified
under Section 401(a) of the Internal Revenue Code.
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
II-2
<PAGE> 11
(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 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. 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 and 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 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
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) do 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 Company 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 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 shares of Common
Stock being registered hereby which remain unsold at
the termination of the offering.
(b) The Company hereby undertakes that, for the purposes of
determining any liability under the Securities Act, each
filing of the Company's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to 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 hereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the Company pursuant to
the foregoing provisions, or otherwise, the Company 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 Company of
expenses incurred or paid by a , officer or controlling
person of the Company 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 Company will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the
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<PAGE> 12
question whether such indemnification by it is against
public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
II-4
<PAGE> 13
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 amendment to
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Chicago, State of Illinois, on the
5th day of November, 1996.
MARKS BROS. JEWELERS, INC.
By: /s/ John R. Desjardins
----------------------
John R. Desjardins
Executive Vice President,
Finance and Administration
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the 5th day of November, 1996.
<TABLE>
<S> <C>
* Chairman, President and Chief Executive Officer
----------------------- (principal executive officer) and Director
Hugh M. Patinkin
/s/ John R. Desjardins Executive Vice President, Finance and Administration and Treasurer
----------------------- (principal financial and accounting officer) and Director
John R. Desjardins
* Director
-----------------------
Matthew M. Patinkin
Director
-----------------------
Rodney L. Goldstein
* Director
-----------------------
Samuel B. Guren
* Director
-----------------------
Norman J. Patinkin
* Director
-----------------------
Jack A. Smith
*
-----------------------
John R. Desjardins
as Attorney-in-Fact
</TABLE>
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<PAGE> 14
EXHIBIT INDEX
The following documents are filed herewith or incorporated herein by
reference.
Exhibit
No. Description
- ------- -----------
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-1, as amended (Commission
File No. 333-1794) (the "Common Stock Registration
Statement")).
4.2 Restated By-Laws of the Company (incorporated by reference
to Exhibit 3.2 of the Common Stock Registration Statement).
4.3 Stockholders Rights Plan (incorporated by reference to
Exhibit 4.1 of the Company's Registration Statement on Form
S-1, as amended (Commission File No. 333-04043) (the "Notes
Registration Statement")).
4.4 Certificate of Designation of Series A Junior Participating Preferred
Stock (incorporated by reference to Exhibit 4.2 of the Common Stock
Registration Statement).
*5 Opinion of Sidley & Austin.
23.1 Consent of Independent Public Accountants.
*23.2 Consent of Sidley & Austin (contained in Exhibit 5 hereto).
24.1 Powers of Attorney (included on signature page).
*99.1 Marks Bros. Jewelers, Inc. 1996 Long-Term Incentive Plan.
*99.2 Marks Bros. Jewelers, Inc. 1995 Executive Incentive Stock Option Plan.
*99.3 Marks Bros. Jewelers, Inc. 1995 Incentive Stock Option Plan.
- ------------------
*Previously filed
II-6
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-8
of our report dated February 27, 1996, except as to Note 14 which is as of
August 22, 1996, on our audits of the financial statements of Marks Bros.
Jewelers, Inc. as of January 31, 1995 and 1996 and for the twelve months then
ended. We also consent to the reference to our firm under the caption
"Experts".
COOPERS & LYBRAND L.L.P.
Chicago, Illinois
November 5, 1996
