Registration No. 33 -
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BABY SUPERSTORE, INC.
(Exact name of registrant as specified in its charter)
SOUTH CAROLINA 57-0527831
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1201 WOODS CHAPEL ROAD
DUNCAN, SOUTH CAROLINA 29334
(Address of principal executive offices) (Zip code)
BABY SUPERSTORE, INC.
1995 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
(Full title of the plan)
LINDA M. ROBERTSON
PRESIDENT AND CHIEF OPERATING OFFICER
1201 WOODS CHAPEL ROAD
DUNCAN, SOUTH CAROLINA 29334
(864) 968-9292
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) REGISTRATION FEE
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Common Stock, no
par value per share....... 120,000 $24 9/16 $2,947,500 $894
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(1) PURSUANT TO RULE 416(A), THIS REGISTRATION STATEMENT ALSO REGISTERS
SUCH INDETERMINATE NUMBER OF ADDITIONAL SHARES AS MAY BECOME ISSUABLE
UNDER THE PLAN IN CONNECTION WITH SHARE SPLITS, SHARE DIVIDENDS, AND
SIMILAR TRANSACTIONS.
(2) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE
PURSUANT TO RULE 457(C) AND (H) UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, BASED ON THE AVERAGE OF THE HIGH AND LOW PRICES OF THE
REGISTRANT'S COMMON STOCK ON THE NASDAQ NATIONAL MARKET ON JANUARY 3,
1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, filed by 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 herein by
reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended January 31, 1996;
(b) All other reports filed by the Registrant with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act since
the end of the Registrant's fiscal year ended January 31,
1996; and
(c) The description of the common stock, no par value, of the
Registrant contained in the Registrant's Registration
Statement on Form S-1 (File no. 33-82236), including any
amendment or report filed for the purpose of updating such
description.
In addition, all documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and 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 into this Registration Statement and to
be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
As permitted by the South Carolina Business Corporations Act of 1988,
as amended, the Registrant's Amended and Restated Articles of Incorporation
provide that a director of the Registrant shall not be personally liable to the
Registrant or any of its shareholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Registrant or its shareholders, (ii) for acts
or omissions not in good faith or which involve gross negligence, intentional
misconduct or a knowing violation of law, (iii) for any unlawful distribution as
set forth in the Code of Laws of South Carolina or (iv) for any transaction from
which the director derived an improper personal benefit. These provisions may
have the effect in certain circumstances of reducing the likelihood of
derivative litigation against directors. While these provisions eliminate the
right to recover monetary damages from directors except in limited
circumstances, rights to seek injunctive or other non-monetary relief is not
eliminated.
The Registrant's Bylaws set forth certain indemnification provisions as
a contractual right of the Registrant's directors, officers and agents.
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Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Registrant pursuant to the arrangements described above, 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits listed on the Exhibit Index to this Registration Statement
are incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) RULE 415 OFFERINGS. 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
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 the 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 subparagraphs (i) and (ii) do not
apply if the information required to be included in a
post-effective amendment by those subparagraphs is contained
in periodic reports filed by the Registrant pursuant to
Section 13 or 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.
Page II - 2
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(b) INCORPORATION OF SUBSEQUENT EXCHANGE ACT DOCUMENTS. 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 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) INDEMNIFICATION OF MANAGEMENT AND CONTROL PERSONS. 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 provisions described
in Item 6, or otherwise, the Registrant has been advised that
in the opinion of the Commission such indemnification is
against public policy as expressed in such 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, as amended,
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 Duncan, State of South Carolina, on January 6,
1997.
BABY SUPERSTORE, INC.
By: /s/ Jack P. Tate
Jack P. Tate, Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ Jack P. Tate Chairman of the Board and Chief January 6, 1997
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Jack P. Tate Executive Officer
/s/ Linda M. Robertson President, Chief Operating Officer January 6, 1997
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Linda M. Robertson and Director
/s/ Jodi L. Taylor Chief Financial Officer and January 6, 1997
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Jodi L. Taylor Treasurer (principal financial and
accounting officer)
/s/ Robert E. Howard Director January 6, 1997
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Robert E. Howard
/s/ Kenneth G. Langone Director January 6, 1997
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Kenneth G. Langone
/s/ Roger G. Owens Director January 6, 1997
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Roger G. Owens
/s/ Thomas L. Teague Director January 6, 1997
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Thomas L. Teague
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EXHIBIT INDEX
Exhibit
Number Description
5.1 Opinion of Nexsen Pruet Jacobs & Pollard, LLP.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Nexsen Pruet Jacobs & Pollard, LLP (included in
their opinion filed as Exhibit 5.1).
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Exhibit 5.1
January 6, 1997
Baby Superstore, Inc.
1201 Woods Chapel Road
Duncan, South Carolina 29334
RE: Registration Statement on Form S-8
Gentlemen:
This opinion is being furnished to you in connection with your filing
with the Securities and Exchange Commission of a Registration Statement on Form
S-8 (the "Registration Statement") relating to the Baby Superstore, Inc. 1995
Stock Option Plan for Outside Directors (the "Plan") and the sale of common
stock, no par value per share (the "Common Stock"), of Baby Superstore, Inc.
(the "Company") pursuant to the exercise of options granted under the Plan and
exercised in accordance with the provisions of the Plan. In this connection, we
have familiarized ourselves with the Articles of Incorporation and the Bylaws of
the Company, and have examined the originals, or copies certified or otherwise
identified to our satisfaction, of corporate records, including minute books, of
the Company. We have also examined the Registration Statement, together with the
exhibits thereto, and such other certificates of officers, documents, and
records as we have deemed necessary for the purpose of expressing the opinion
contained herein.
On the basis of, and in reliance upon, the foregoing, and subject to
the assumptions and qualifications set forth herein, we are of the opinion that
the shares of Common Stock to be issued pursuant to the provisions of the Plan
have been duly authorized, and when (a) the Registration Statement has become
effective under the Securities Act of 1933, as amended, and the pertinent
provisions of any state securities laws, as may be applicable, have been
complied with and (b) the shares of Common Stock are issued in accordance with
the terms of the Plan as set forth in the Registration Statement, the shares of
Common Stock so issued will be validly issued, fully paid, and nonassessable.
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The opinion expressed herein is based upon applicable laws, statutes,
ordinances, rules and regulations as existed on this date and we express no
opinion as to the effect which any future amendments, changes, additions or
modifications thereof may have on the opinion expressed herein. We assume no
obligation to update or supplement our opinion to reflect any facts or
circumstances which may hereafter come to our attention, or changes in law which
may hereafter occur. This opinion is provided to you as a legal opinion only,
and not as a guaranty or warranty of the matters discussed herein or of any
transaction or obligation. We are furnishing this opinion for the sole and
exclusive benefit of the addressee.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement with respect to the Plan. By giving such consent, we do
not admit that we are within 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 issued thereunder.
Very truly yours,
NEXSEN PRUET JACOBS & POLLARD, LLP
By: /s/ Julian Hennig III
Julian Hennig III
Partner
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Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Baby Superstore, Inc.:
We consent to the incorporation by reference in this Registration Statement of
Baby Superstore, Inc. on Form S-8 of our report dated March 29, 1996 appearing
in and incorporated by reference in the Annual Report on Form 10-K of Baby
Superstore, Inc. for the year ended January 31, 1996.
DELOITTE & TOUCHE LLP
Greenville, South Carolina
January 6, 1997
