As filed with the Securities and Exchange Commission on July 25, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LEVITZ FURNITURE INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 23-2351830
(State of incorporation) (I.R.S. Employer Identification No.)
6111 Broken Sound Parkway, N.W., Boca Raton, Florida 33487-2799
(Address of principal executive offices) (Zip code)
LEVITZ FURNITURE INCORPORATED
RESTRICTED STOCK AWARD AGREEMENTS
BETWEEN LEVITZ FURNITURE INCORPORATED AND
EACH OF MICHAEL BOZIC AND EDWARD F. GILLIGAN
(Full title of the plans)
Edward P. Zimmer, Esq.
Vice President and General Counsel
6111 Broken Sound Parkway, N.W., Boca Raton, Florida 33487-2799
(407) 994-6006
(Name, address and telephone number, including area code,
of agent for service)
Copies to:
Robert B. Pincus, Esq.
Skadden, Arps, Slate, Meagher & Flom
One Rodney Square
Wilmington, Delaware 19801
(302) 651-3000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share (1)(2) Price (1)(2) Fee
<S> <C> <C> <C> <C>
Common Stock,
par value
$.01 per share 700,000 shares $4.75 $3,325,000 $1,147
</TABLE>
(1)Estimated pursuant to paragraphs (c) and (h) of Rule 457 under the
Securities Act of 1933, as amended (the "Securities Act"), on the basis of
the average of the high and low sale prices for a share of Common Stock on
the New York Stock Exchange on July 24, 1996, which is within five business
days prior to filing.
(2)Estimated solely for the purpose of calculating the registration fee.
This Registration Statement on Form S-8 is being filed by Levitz
Furniture Incorporated (the "Registrant") with respect to (i) the 500,000
shares of common stock, par value $.01 per share (the "Common Stock"), of the
Registrant issuable upon grant of restricted shares of Common Stock pursuant
to the Levitz Furniture Incorporated Restricted Stock Award Agreement with
Michael Bozic, Chief Executive Officer and Chairman of the Board of Directors
of the Registrant, dated as of November 1, 1995 and (ii) the 200,000 shares of
Common Stock issuable upon grant of restricted shares of Common Stock pursuant
to the Levitz Furniture Incorporated Restricted Stock Award Agreement with
Edward F. Gilligan, President - Merchandise/Marketing of the Registrant, dated
as of November 28, 1995.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents By Reference.
The following documents of the Registrant heretofore filed with the
Securities and Exchange Commission (the "Commission") are incorporated in this
Registration Statement by reference: (a) the Registrant's Annual Report on
Form 10-K for the fiscal year ended March 31, 1996, (b) the Proxy Statement
relating to the Registrant's 1996 Annual Meeting of Stockholders and (c) the
description of the Common Stock contained in the Registrant's Registration
Statement on Form 8-A as filed with the Commission on June 3, 1993, as amended
in the Registrant's Amended Registration Statement on Form 8-A/A as filed with
the Commission on June 30, 1993 under Section 12 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), with respect to the Common
Stock.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all securities offered have been
sold or that deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
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 document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any 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.
Item 5. Interests Of Named Experts And Counsel.
The legality of the shares of Common Stock being offered hereby will be
passed upon by Skadden, Arps, Slate, Meagher & Flom, Wilmington, Delaware.
Item 6. Indemnification Of Directors And Officers.
The Restated Certificate of Incorporation of the Registrant (the
"Certificate") provides that the Registrant shall advance expenses to and
indemnify each director and officer of the Registrant to the fullest extent
permitted by law.
The Registrant's Certificate also provides that a director of the
Registrant shall not be personally liable to it or its stockholders for
monetary damages to the fullest extent permitted by the Delaware General
Corporation Law (the "DGCL"). Section 102(b)(7) of the DGCL currently provides
that a director's liability for breach of fiduciary duty to a corporation or
its stockholders may be eliminated or limited except for liability (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 the Delaware
statutory provision making directors personally liable for unlawful payment
of dividends or unlawful stock purchases or redemptions, and (iv) for any
transaction from which the director derived an improper personal benefit. This
provision offers persons who serve on the board of directors of a Delaware
corporation protection against awards of monetary damages for negligence in
the performance of their duties. It does not affect the availability of
equitable remedies such as an injunction or rescission based upon a director's
breach of his duty of care. Any amendment to this provision of the DGCL will
automatically be incorporated by reference in the Registrant's Certificate,
without any vote on the part of the Registrant's stockholders, unless
otherwise required.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following documents are being filed herewith or incorporated herein
by reference as exhibits to this Registration Statement:
Exhibit No. Description
*3(a) Restated Certificate of Incorporation of Levitz
Furniture Incorporated. Incorporated by reference to
Exhibit 4.1 to the Registration Statement on Form S-8
of Levitz Furniture Incorporated, filed on September
28, 1994 (Registration No. 33-84474).
*3(b) By-Laws of Levitz Furniture Incorporated. Incorporated
by reference to Exhibit 4.2 to the Registration
Statement on Form S-8 of Levitz Furniture Incorporated,
filed on September 28, 1994 (Registration No. 33-84474).
*4(a) Stockholder Rights Plan, including exhibits.
Incorporated by reference to the Company's and Levitz's
Registration Statement Nos. 33-61534 and 33-61534-01 on
Form S-1 filed on April 23, 1993.
5(a) Opinion of Skadden, Arps, Slate, Meagher & Flom.
23(a) Consent of Skadden, Arps, Slate, Meagher & Flom
(included in Exhibit 5(a)).
23(b) Consent of Arthur Andersen LLP.
24 Power of Attorney (see signature page).
- -----------
* Previously filed.
Item 9. Undertakings.
(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 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;
(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; 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, each filing of the
Registrant'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 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 Delaware General Corporation Law and the Restated
Certificate of Incorporation of the Registrant, or otherwise, the Registrant
has been advised that in the opinion of the 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 Securities Act and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 autho-
rized, in the City of Boca Raton, State of Florida, on the 24th day of July,
1996.
LEVITZ FURNITURE INCORPORATED
By /s/ Edward P. Zimmer
---------------------------------------------
Edward P. Zimmer
Vice President and General Counsel
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Patrick J. Nolan and Edward P. Zimmer,
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and revocation, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement and to file the same
with all exhibits thereto, and other documents in connection therewith, with
the securities and exchange commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS ON
BEHALF OF THE REGISTRANT AND IN THE CAPACITIES INDICATED AS OF JULY 24, 1996.
SIGNATURE TITLE
/s/ Michael Bozic
- ------------------------------ Chairman of the Board and
Michael Bozic Chief Executive Officer
/s/ Patrick J. Nolan
- ------------------------------ Vice President and
Patrick J. Nolan Chief Financial Officer
(Principal Financial
Officer and Principal
Accounting Officer)
/s/ Richard M. Cashin
- ------------------------------ Director
Richard M. Cashin
/s/ Robert M. Harrell
- ------------------------------ Director
Robert M. Harrell
/s/ Bruce C. Leadbetter
- ------------------------------ Director
Bruce C. Leadbetter
/s/ Kenneth D. Moelis
- ------------------------------ Director
Kenneth D. Moelis
/s/ Henry B. Reiling
- ------------------------------ Director
Henry B. Reiling
/s/ Wayne W. Wright
- ------------------------------ Director
Wayne W. Wright
LIST OF EXHIBITS
Exhibit No. Description
*3(a) Restated Certificate of Incorporation of Levitz Furniture
Incorporated. Incorporated by reference to Exhibit 4.1 to the
Registration Statement on Form S-8 of Levitz Furniture
Incorporated, filed on September 28, 1994 (Registration
No. 33-84474).
*3(b) By-Laws of Levitz Furniture Incorporated. Incorporated by
reference to Exhibit 4.2 to the Registration Statement on
Form S-8 of Levitz Furniture Incorporated, filed on
September 28, 1994 (Registration No. 33-84474).
*4(a) Stockholder Rights Plan, including exhibits. Incorporated by
reference to the Registration Statement on Form S-8 of Levitz
Furniture Incorporated, filed on September 28, 1994 (Registration
No. 33-84474)
5(a) Opinion of Skadden, Arps, Slate, Meagher & Flom.
23(a) Consent of Skadden, Arps, Slate, Meagher & Flom (included in
Exhibit 5(a)).
23(b) Consent of Arthur Andersen LLP.
24 Power of Attorney (set forth on signature page to this Form S-8
Registration Statement).
- ---------------
*Previously filed.
EXHIBIT 5(a)
July 25, 1996
Levitz Furniture Incorporated
6111 Broken Sound Parkway, N.W.
Boca Raton, Florida 33487-2799
Re: Registration Statement on Form S-8 of Levitz Furniture
Incorporated
Ladies and Gentlemen:
We have acted as special counsel to Levitz Furniture Incorporated, a
Delaware corporation (the "Company"), in connection with the preparation of
the Registration Statement on Form S-8 of the Company (the "Registration
Statement") being filed today with the Securities and Exchange Commission
(the "Commission"). The Registration Statement relates to the issuance of
700,000 shares (the "Shares") of the Company's Common Stock, par value $.01
per share (the "Common Stock"), pursuant to the Levitz Furniture Incorporated
Restricted Stock Award Agreement, dated as of November 1, 1995, between
Michael Bozic and the Company, and the Restricted Stock Award Agreement, dated
as of November 28, 1995, between Edward F. Gilligan and the Company
(collectively, the "Agreements").
This opinion is being furnished to you in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as
amended (the "1933 Act").
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction,
of the following: (i) the Registration Statement, (ii) the proposed forms
of the Agreements, (iii) the Restated Certificate of Incorporation of the
Company and the By-Laws of the Company, each as currently in effect, and
(iv) certain resolutions adopted by the Board of Directors of the Company
relating to, among other things, the execution and delivery of the
Agreements, the issuance of the Shares and the filing of the Registration
Statement and related matters.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity of all documents submitted to
us as certified, conformed or photostatic copies and the authenticity of the
originals of such documents. In making our examination of documents executed
by parties other than the Company, we have assumed that such parties had the
power, corporate or other, to enter into and perform all obligations
thereunder and have also assumed the due authorization by all requisite
action, corporate or other, and execution and delivery by such parties of
such documents and the validity, binding effect and enforceability thereof.
For purposes of this opinion, we have also assumed that the Agreements will
be executed in substantially the form reviewed by us. As to any facts
material to the opinions expressed herein that we did not independently
establish or verify, we have relied upon statements and representations of
officers and other representatives of the Company and others.
Members of this Firm are admitted to the Bar of the State of Delaware and
we express no opinion as to the laws of any other jurisdiction.
Based upon and subject to the foregoing, and to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that the Shares have been duly authorized for issuance, and, when
issued and delivered in accordance with the terms of the Agreements, will be
validly issued, fully paid and nonassessable.
This opinion is being furnished to you solely for your benefit in
connection with the filing of the Registration Statement and, except as set
forth in the next sentence, is not to be used, circulated, quoted, or
otherwise referred to for any other purpose or relied upon by any other person
for any other purpose without our express prior written consent. We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to us under the caption "Interests of Named
Experts and Counsel." In giving this consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of
the 1933 Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
Skadden, Arps, Slate, Meagher & Flom
EXHIBIT 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated July 1, 1996,
included in the Levitz Furniture Incorporated's Form 10-K for the year ended
March 31, 1996 and to all references to our Firm included in this registration
statement.
Arthur Andersen LLP
Philadelphia, Pa.
July 24, 1996
