<PAGE> 1
As filed with the Securities and Exchange Commission on December 16, 1996
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
BED BATH & BEYOND INC.
(Exact name of registrant as specified in its charter)
New York 11-2250488
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
715 Morris Avenue
Springfield, New Jersey 07081
(Address of principal executive offices) (Zip code)
Bed Bath & Beyond Inc. 1996 Stock Option Plan
(Full title of the Plan)
Mr. Warren Eisenberg
Bed Bath & Beyond Inc.
715 Morris Avenue
Springfield, New Jersey 07081
(201) 379-1520
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Klaus Eppler, Esq.
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036
(212) 969-3000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of securities to be registered Amount to be Proposed maximum Proposed maximum Amount of
registered(1) offering price aggregate offering Registration
per share(2) price(2) Fee
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 2,000,000 shares $ 24.4375 $50,875,000 $15,416.67
</TABLE>
(1) The maximum number of shares as to which awards may be granted under
the Bed Bath & Beyond Inc. 1996 Stock Option Plan (the "Plan").
Pursuant to Rule 416 of the Securities Act of 1933, as amended, this
Registration Statement also registers such additional indeterminate
number of shares of Common Stock as may be offered or issued to adjust
for any stock splits, stock dividends or similar transactions, as
provided for by the Plan.
(2) Computed pursuant to Rule 457(h) promulgated under the Securities Act
of 1933 and is the product of multiplying the 2,000,000 shares as to
which options may be granted by $24.4375 which is the average of the
high and low price of the Registrant's Common Stock reported on the
Nasdaq National Market on December 12, 1996. The price stated is
estimated solely for the purpose of calculating the Registration Fee.
<PAGE> 2
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The Section 10(a) prospectus for the Bed Bath & Beyond Inc.
1996 Stock Option Plan is not being filed with the Securities and Exchange
Commission (the "Commission") as part of this Registration Statement.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Bed Bath & Beyond Inc., a New York corporation (the "Registrant" or the
"Company"), is registering herewith 2,000,000 shares of its common stock, par
value $.01 per share (the "Common Stock"), which are issuable pursuant to the
Plan.
Item 3. Incorporation of Documents by Reference
The following documents filed with the Commission by the Company are
incorporated herein by reference:
(1) Annual Report on Form 10-K for the fiscal year ended February
25, 1996.
(2) Quarterly Report on Form 10-Q for the quarter ended May 26,
1996.
(3) Quarterly Report on Form 10-Q for the quarter ended August 25,
1996.
(3) Definitive Proxy Statement dated May 28, 1996 filed in
connection with the Company's 1996 Annual Meeting of
Shareholders.
(4) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed May 11,
1992, and any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all remaining securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated herein and to be part hereof from the date of filing such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Certain legal matters relating to the issuance of the shares of Common
Stock offered hereby have been passed upon by Proskauer Rose Goetz &
Mendelsohn LLP, 1585 Broadway, New York, New York 10036.
Klaus Eppler, Esq., a member of Proskauer Rose Goetz & Mendelsohn LLP,
is a director of the Company.
3
<PAGE> 4
Item 6. Indemnification of Directors and Officers.
Section 402(b) of the New York Business Corporation Law provides that,
subject to conditions and qualifications provided by statute, a Certificate of
Incorporation may set forth a provision eliminating or limiting the personal
liability of directors to the corporation or its shareholders for damages for
any breach of duty in such capacity.
The Company's Amended and Restated Certificate of Incorporation
provides that no director of the corporation shall be personally liable to the
corporation or any of its shareholders for damages for any breach of duty in
such capacity except for liability of any director if a judgment or other final
adjudication adverse to him establishes that his acts or omissions were in bad
faith or involved intentional misconduct or a knowing violation of law or that
he personally gained in fact a financial profit or other advantage to which he
was not legally entitled or that his acts violated Section 719 of the Business
Corporation Law. If the Business Corporation Law hereafter is amended to
authorize the further elimination or limitation of the liability of directors,
then the liability of a director of the corporation, in addition to the
limitation on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended Business Corporation Law. Any repeal or
modification of this Article shall be prospective only, and shall not adversely
affect any limitation on the personal liability of a director of the corporation
existing at the time of such repeal or modification.
The Company's By-laws provide that the corporation shall, to the
fullest extent permitted by applicable law as in effect at any time, indemnify
any director (and may indemnify any officer) made, or threatened to be made, a
party to an action or proceeding, whether civil or criminal, including an action
by or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the corporation served in any
capacity at the request of the corporation, by reason of the fact that he, his
testator or intestate, was a director or officer of the corporation, or served
such other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise in any capacity, against judgments, fines, amounts paid in
settlement and reasonable expenses, including reasonable attorneys' fees
incurred as a result of such action or proceeding, or any appeal therein;
provided that to the extent prohibited by applicable law no indemnification may
be made to or on behalf of any director or officer if a judgment or other final
adjudication adverse to the director or officer establishes that his acts were
committed in bad faith or were the result of active and deliberate dishonesty
and were material to the cause of action so adjudicated, or that he personally
gained in fact a financial profit or other advantage to which he was not legally
entitled. The right to indemnification pursuant to this Article V is intended to
be retroactive and shall, to the extent permitted by applicable law, be
available with respect to events occurring prior to the adoption hereof and
shall continue to exist after any future rescission or restrictive modification
hereof with respect to any alleged cause of action that accrues, or any other
incident or matter that occurs, prior to such rescission or modification.
The Company has obtained directors and officers liability insurance
which insures the Company's officers and directors against certain liabilities.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission such
4
<PAGE> 5
indemnification is against public policy as expressed in the Securities Act of
1933 and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
Exhibit
Number Description
------- -----------
3.1 Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (Registration No.
33-47250))
3.2 By-laws of the Company (incorporated by reference to Exhibit
3.2 to the Company's Registration Statement on Form S-1
(Registration No. 33-47250))
5.1 Opinion of Proskauer Rose Goetz & Mendelsohn LLP*
23.1 Consent of KPMG Peat Marwick LLP*
23.2 Consent of Proskauer Rose Goetz & Mendelsohn LLP (included in
Exhibit 5.1)*
24 Power of Attorney (included on signature page)*
* Filed herewith.
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;
(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
5
<PAGE> 6
aggregate, the changes in volume and price represent no more
than a 20% 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 (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by (i) and (ii) is contained in
periodic reports filed with 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 the
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 securities being registered which remain
unsold at the termination of the offering.
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
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.
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 foregoing provisions, 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.
6
<PAGE> 7
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 and State of New York, on December 16, 1996.
BED BATH & BEYOND INC.
By: /s/Warren Eisenberg
---------------------------------
Warren Eisenberg, Chairman, Co-Chief
Executive Officer and Director
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Warren Eisenberg and Leonard Feinstein,
and each of them acting singly, his or her attorney-in-fact, with full power of
substitution, for him or her in all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitutes, may do or
cause to be done by virtue hereof.
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>
NAME CAPACITY DATE
<S> <C> <C>
/s/Warren Eisenberg Chairman, Co-Chief Executive December 16, 1996
- ----------------------------------------- Officer and Director
Warren Eisenberg (Principal Executive Officer)
/s/Leonard Feinstein President, Co-Chief Executive December 16, 1996
- ----------------------------------------- Officer and Director
Leonard Feinstein
/s/Robert J. Swartz Director December 16, 1996
- -----------------------------------------
Robert J. Swartz
/s/Klaus Eppler Director December 16, 1996
- -----------------------------------------
Klaus Eppler
/s/Robert S. Kaplan Director December 16, 1996
- -----------------------------------------
Robert S. Kaplan
/s/Ronald Curwin Chief Financial Officer December 16, 1996
- ----------------------------------------- and Treasurer (Principal
Ronald Curwin Financial and
Accounting Officer)
</TABLE>
<PAGE> 8
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
3.1 Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (Registration No.
33-47250))
3.2 By-laws of the Company (incorporated by reference to Exhibit
3.2 to the Company's Registration Statement on Form S-1
(Registration No. 33-47250))
5.1 Opinion of Proskauer Rose Goetz & Mendelsohn LLP*
23.1 Consent of KPMG Peat Marwick LLP*
23.2 Consent of Proskauer Rose Goetz & Mendelsohn LLP (included in
Exhibit 5.1)*
24 Power of Attorney (included on signature page)*
* Filed herewith.
<PAGE> 1
EXHIBIT 5.1
December 16, 1996
Bed Bath & Beyond Inc.
715 Morris Avenue
Springfield, NJ 07081
Dear Sirs:
We are acting as counsel to Bed Bath & Beyond Inc., a New York corporation
(the "Company"), in connection with the registration statement on Form S-8 (the
"Registration Statement") filed by the Company under the Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder, relating to
the registration of 2,000,000 shares (the "Shares") of Common Stock, par value
$.01 per share, of the Company. The Shares are to be issued by the Company
pursuant to the Company's 1996 Stock Option Plan (the "Plan").
As such counsel, we have participated in the preparation of the
Registration Statement and have reviewed the corporate minutes relating to the
issuance of the Shares pursuant to the Plan and have also examined and relied
upon originals or copies, certified or otherwise authenticated to our
satisfaction, of all such corporate records, documents, agreements, and
instruments relating to the Company, and certificates of public officials and of
representatives of the Company.
Based upon, and subject to, the foregoing, we are of the opinion that the
Shares are duly authorized and, upon issuance of the Shares in accordance with
the terms of the Plan, will be, assuming no change in the applicable law or
pertinent facts, validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Proskauer Rose Goetz & Mendelsohn LLP
-----------------------------------------
<PAGE> 1
EXHIBIT 23.1
The Board of Directors and Shareholders
Bed Bath & Beyond Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Bed Bath & Beyond Inc. of our report dated March 22, 1996, relating to
the consolidated balance sheets of Bed Bath & Beyond Inc. and subsidiaries as of
February 25, 1996 and February 26, 1995, and the related consolidated statements
of earnings, changes in shareholders' equity, and cash flows and related
schedules for each of the fiscal years in the three-year period ended February
25, 1996, which report appears in the February 25, 1996 Annual Report on Form
10-K of Bed Bath & Beyond Inc.
/s/ KPMG Peat Marwick LLP
-------------------------
New York, New York
December 12, 1996
