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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 16, 1996
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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GADZOOKS, INC.
(Exact name of Registrant as specified in its charter)
TEXAS 74-2261048
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
4801 SPRING VALLEY ROAD
SUITE 108B
DALLAS, TEXAS 75244
(Address of Principal (Zip Code)
Executive Offices)
GADZOOKS, INC.
1995 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
GERALD R. SZCZEPANSKI
4801 SPRING VALLEY ROAD
SUITE 108B
DALLAS, TEXAS 75244
(Name and address of agent for service)
(214) 991-5500
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered (1) Per Share (2) Price (2) Fee
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value
("Common Stock") . . . . . . . . . . 30,000 $38.12 $1,143,600 $394.34
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(1) This Registration Statement also covers any additional shares that may
hereafter become purchasable as a result of
the adjustment provisions of the Plan.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(c) and calculated on the basis of the average of the high and
low sales prices of the Common Stock of Gadzooks, Inc. on September 12,
1996, as reported by the Nasdaq National Market.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents constituting Part I of this Registration Statement will be
sent or given to directors of Gadzooks, Inc. (the "Company") as specified by
Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended (the
"Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(1) The Company's Quarterly Report on Form 10-Q for the quarter ended
July 27, 1996, as filed with the Commission on September 6, 1996.
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
April 27, 1996, as filed with the Commission on June 11, 1996.
(3) The Company's Annual Report on Form 10-K for the fiscal year ended
January 27, 1996, as filed with the Commission on April 26, 1996.
(4) The description of the Company's Common Stock contained in the
Company's registration statement on Form S-1 (No. 333-00196) filed with the
Commission on January 9, 1996, as amended by Amendment No. 1 thereto filed
with the Commission on January 30, 1996, the Company's registration
statement filed pursuant to Rule 462(b) and the Final Prospectus.
In addition, 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, as
amended (the "Exchange Act"), prior to the filing of a post-effective amendment
to this Registration Statement which indicates that all securities offered
hereby have been sold or which 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
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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the shares of Common Stock offered by this
Registration Statement will be passed upon for the Company by Akin, Gump,
Strauss, Hauer & Feld, L.L.P. Ford Lacy, the sole shareholder of a
professional corporation which is a partner of Akin, Gump, Strauss, Hauer &
Feld, L.L.P.,
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is married to Cece Smith, a principal of Phillips-Smith Specialty Retail Group
II, L.P., a shareholder of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company, a Texas corporation, is empowered by Art. 2.02-1 of the Texas
Business Corporation Act (the "TBCA"), subject to the procedures and
limitations stated therein, to indemnify certain persons, including any person
who was, is or is threatened to be made a named defendant or respondent in an
action, suit or proceeding because the person is or was a director or officer,
against judgments, penalties (including excise and similar taxes), fines,
settlements and reasonable expenses (including court costs and attorneys' fees)
actually incurred by the person in connection with the action, suit or
proceeding. The Company is required by Art. 2.02-1 to indemnify a director or
officer against reasonable expenses (including court costs and attorneys' fees)
incurred by him in connection with an action, suit or proceeding in which he is
a named defendant or respondent because he is or was a director or officer if
he has been wholly successful, on the merits or otherwise, in the defense of
the action, suit or proceeding. Article 2.02-1 provides that indemnification
pursuant to its provisions is not exclusive of other rights of indemnification
to which a person may be entitled under any bylaw, agreement, vote of
shareholders or disinterested directors, or otherwise. The Second Restated
Articles of Incorporation and Bylaws of the Company provide for indemnification
by the Company of its directors and officers to the fullest extent permitted by
the TBCA. In addition, the Company has, pursuant to Article 1302-7.06 of the
Texas Miscellaneous Corporation Laws Act, provided in its Second Restated
Articles of Incorporation that, to the fullest extent permitted by applicable
law, a director of the Company shall not be liable to the Company or its
shareholders for monetary damages for an act or omission in a director's
capacity as director of the Company.
Furthermore, the Company has entered into individual Indemnification
Agreements with each director of the Company which contractually obligate the
Company to provide to the directors (i) indemnification; (ii) insurance or
self- insurance in lieu thereof; and (iii) additional indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The issuance of restricted securities was completed without registration
under the Securities Act in reliance on the exemption provided by Section 4(2)
of the Securities Act. In relying on this exemption, the Company relied on the
limited extent and purpose of the issuance.
ITEM 8. EXHIBITS.
See Index to Exhibits, attached hereto.
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:
(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;
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(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 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 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.
(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 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.
(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 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 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.
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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 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 Dallas, State of Texas on August 21, 1996.
GADZOOKS, INC.
By: /s/ Gerald R. Szczepanski
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Gerald R. Szczepanski
Chairman of the Board,
Chief Executive Officer
and President
The undersigned directors and officers of Gadzooks, Inc. hereby constitute
and appoint Gerald R. Szczepanski and Monty R. Standifer and each of them, with
full power to act without the other and with full power of substitution and
resubstitution, our true and lawful attorneys-in-fact with full power to
execute in our name and behalf in the capacities indicated below any and all
amendments (including post-effective amendments and amendments thereto) to this
Registration Statement and to file the same, with all exhibits thereto and
other documents in connection therewith with the Commission and hereby ratify
and confirm all that such attorneys-in-fact, or either of them, or their
substitutes shall lawfully 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 below by the following persons in the
capacities indicated on August 21, 1996.
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Signature Title
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<S> <C>
/s/ Gerald R. Szczepanski Chairman of the Board, Chief Executive Officer
- ----------------------------------------------- and President (Principal Executive Officer)
Gerald R. Szczepanski
/s/ Monty R. Standifer Senior Vice President, Chief Financial
- ----------------------------------------------- Officer, Treasurer and Secretary (Principal
Monty R. Standifer Financial and Accounting Officer)
/s/ Lawrence H. Titus, Jr. Director
- -----------------------------------------------
Lawrence H. Titus, Jr.
/s/ G. Michael Machens Director
- -----------------------------------------------
G. Michael Machens
/s/ Alan W. Crites Director
- -----------------------------------------------
Alan W. Crites
/s/ Robert E.M. Nourse Director
- -----------------------------------------------
Robert E.M. Nourse
</TABLE>
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INDEX TO EXHIBITS
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Exhibit
Number Description of Exhibits
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<S> <C> <C>
4.1 -- Second Restated Articles of Incorporation of the Company (filed
as Exhibit 4.1 to the Company's Form S-8 (No. 33-98038) filed
with the Commission on October 12, 1995 and incorporated herein
by reference).
4.2 -- Amended and Restated Bylaws of the Company (filed as
Exhibit 4.2 to the Company's Form S-8 (No. 33-98038) filed
with the Commission on October 12, 1995 and incorporated
herein by reference).
4.3 -- Specimen Certificate for shares of Common Stock, $.01 par
value, of the Company (filed as Exhibit 4.1 to the Company's
Amendment No. 2 to Form S-1 (No. 33-95090) filed with the
Commission on September 8, 1995 and incorporated herein by
reference).
4.4 -- 1995 Non-employee Director Stock Option Plan (filed as Exhibit
10.10 to the Company's Form S-1 (No. 333-00196) filed with the
Commission on January 9, 1996 and incorporated herein by
reference).
5.1 -- Opinion and Consent of Akin, Gump, Strauss, Hauer & Feld,
L.L.P.
23.1 -- Consent of Price Waterhouse LLP.
23.2 -- Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included
in its opinion filed as Exhibit 5.1 hereto).
24 -- Power of Attorney (included on signature page of this Registration Statement).
</TABLE>
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[AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. LETTERHEAD]
September 13, 1996 EXHIBIT 5.1
Gadzooks, Inc.
4801 Spring Valley Road, Suite 108B
Dallas, Texas 75244
Gentlemen:
We have acted as counsel to Gadzooks, Inc., a Texas corporation (the
"Company"), in connection with the proposed registration of 30,000 shares of
the Company's Common Stock, par value $.01 per share (the "Common Stock"), as
described in a Registration Statement on Form S-8 relating to the Common Stock
to be issued under the Company's 1995 Non-employee Director Stock Option Plan
(the "Plan") which Registration Statement is to be filed with the Securities
and Exchange Commission.
We have, as counsel, examined such corporate records, certificates and
other documents and reviewed such questions of law as we have deemed necessary,
relevant or appropriate to enable us to render the opinions listed below. In
rendering such opinions, we have assumed the genuineness of all signatures and
the authenticity of all documents examined by us. As to various questions of
fact material to such opinions, we have relied upon representations of the
Company.
Based upon such examination and representations, we advise you that,
in our opinion:
A. The shares of Common Stock to be issued under the Plan which
are to be registered pursuant to the Registration Statement have been duly and
validly authorized by the Company.
B. The shares of Common Stock to be issued under the Plan which
are to be registered pursuant to the Registration Statement, when issued and
delivered in accordance with the Plan, will be validly issued, fully paid and
non-assessable.
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AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
Gadzooks, Inc.
September 13, 1996
Page 2
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Sincerely,
/s/ Akin, Gump, Strauss, Hauer & Feld, L.L.P.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 18, 1996, which appears on page
29 of the 1995 Annual Report to Shareholders of Gadzooks, Inc., which is
incorporated by reference in Gadzooks, Inc.'s Annual Report on Form 10-K for
the year ended January 27, 1996.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Dallas, Texas
September 12, 1996
