-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, K2dzzb2FapXnr2UHZnlV4m8LqinHZtQ6+stNRTWQxL69J9f5AfNrtSPEpj5IFMDd nVyrtR29N8Oty5gbSX6miQ== 0000950109-96-008093.txt : 19961206 0000950109-96-008093.hdr.sgml : 19961206 ACCESSION NUMBER: 0000950109-96-008093 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19961205 EFFECTIVENESS DATE: 19961205 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: BROOKSTONE INC CENTRAL INDEX KEY: 0000830134 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-RETAIL STORES, NEC [5990] IRS NUMBER: 061182895 STATE OF INCORPORATION: DE FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-17341 FILM NUMBER: 96676467 BUSINESS ADDRESS: STREET 1: 17 RIVERSIDE STREET CITY: NASHUA STATE: NH ZIP: 03062 BUSINESS PHONE: 6038809500 MAIL ADDRESS: STREET 1: 17 RIVERSIDE ST CITY: NASHUA STATE: NH ZIP: 03062 S-8 1 FORM S-8 As filed with the Commission on December 4, 1996 File No. 33-_____ SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 ------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 BROOKSTONE, INC. (Exact name of registrant as specified in its charter) Delaware 06-1182895 - ------------------------------- ---------------------- (State or other jurisdiction of (IRS Employer incorporation or organization) Identification No.) 17 Riverside Street Nashua, New Hampshire 03062 - ------------------------------------------------------------------------------- (Address of principal executive offices, including zip code) 1996 DIRECTORS' STOCK OPTION PLAN --------------------------------- (Full title of the plan) Michael A. O'Hara Brookstone, Inc. 17 Riverside Street Nashua, new Hampshire 03062 (603) 880-9500 - ------------------------------------------------------------------------------- (Name, address and telephone number of agent for service) CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------- Title of Amount Proposed Proposed Amount of Securities to be maximum maximum registration to be registered offering aggregate fee/(2)/ registered price per offering share/(1)/ price/(1)/ - -------------------------------------------------------------------- Common Stock, 150,000 $10.11 $1,516,250 $459.47 par value $0.001 - --------------------------------------------------------------------
/(1)/ Of the 150,000 shares of Common Stock, par value $0.001 per share, registered hereunder, 40,000 are subject to outstanding options at an exercise price of $10.75 per share. The offering price for the remaining 110,000 shares not subject to outstanding options has been estimated solely for the purpose of determining the registration fee pursuant to Rule 457(h) on the basis of the average of the high and low prices of Brookstone, Inc. Common Stock, par value $0.001, reported on the Nasdaq National Market System on December 3, 1996. /(2)/ The registration fee consists of (a) $130.30 payable in respect of 40,000 shares subject to options at an exercise price of $10.75 plus (b) $329.17 payable in respect of 110,000 shares at an assumed price of $9.875 per share not yet subject to outstanding options on the date hereof. Exhibit Index on Page 7. -1- PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. ---------------------------------------- The Registrant hereby incorporates the following documents herein by reference: (a) The Registrant's Annual Report on Form 10-K filed with the Securities and Exchange Commission (the "Commission") on May 1, 1996. (b) All reports filed pursuant to Section 13(a) or 15(d) of the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), since the end of the fiscal year covered by the Annual Report on Form 10-K. (c) The description of the Common Stock of the Registrant contained in the Registration Statement on Form S-1 originally filed with the Commission on April 10, 1992 (File No. 33-47123) under the Securities Act of 1933, as amended, under the caption "Description of Capital Stock" incorporated by reference into the Registrant's Registration Statement on Form 8-A filed with the Commission on March 22, 1993 under Section 12 of the Securities Exchange. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15 of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed incorporated herein by reference from the date of filing of such documents. Item 4. Description of Securities. -------------------------- Not required. Item 5. Interests of Named Experts and Counsel. --------------------------------------- No material interests. Item 6. Indemnification of Directors and Officers. ------------------------------------------ Section 145 of the General Corporation Law of the State of Delaware, as amended, provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another enterprise, against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or -2- proceeding, had no reasonable cause to believe his conduct was unlawful. Section 145 further provides that a corporation similarly may indemnify any such person serving in any such capacity who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor, against expenses actually and reasonably incurred in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or such other court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Section 102(b) (7) of the General Corporation Law of the State of Delaware, as amended, permits a corporation to include in its certificate of incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (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 Section 174 of the General Corporation Law of the State of Delaware (relating to unlawful payment of dividends and unlawful stock purchase and redemption) or (iv) for any transaction from which the director derived an improper personal benefit. The Registrant's Restated Certificate of Incorporation provides that the Company's directors shall not be liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that exculpation from liabilities is not permitted under the General Corporation Law of the State of Delaware as in effect at the time such liability is determined. The Restated Certificate of Incorporation further provides that the registrant shall indemnify its directors and officers to the full extent permitted by the laws of the State of Delaware. The Company also maintains directors' and officers' liability insurance with a limit of $5,000,000. Item 7. Exemption from Registration Claimed. ------------------------------------ Not applicable. Item 8. Exhibits. --------- Exhibit 5. Opinion of Ropes & Gray. 10.1 1996 Directors Stock Option Plan (Incorporated by reference to Exhibit A of Proxy Statement accompanying the Registrant's submission of Schedule 14A filed with the Commission on May -3- 1, 1996). 23.1 Consent of Price Waterhouse LLP. 23.2 Consent of Ropes & Gray (contained in the opinion filed as Exhibit 5 to this registration statement). 24. Powers of Attorney. 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 and (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) shall 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 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 in 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 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 -4- 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. -5- 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 Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Nashua, New Hampshire, on this 2nd day of December, 1996. BROOKSTONE, INC. By: /s/Michael F. Anthony --------------------------------- Michael F. Anthony Director, President and Chief Executive Officer and Acting Principal Financial and Accounting Officer. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE --------- ----- * Chairman of the Board of Directors - --------------------------- Merwin F. Kaminstein * President and Chief Executive Officer, - --------------------------- Director (Principal Executive Officer and Acting Michael F. Anthony Principal Financial Accounting Officer) * Director - --------------------------- Mone Anathan, III * Director - --------------------------- Michael L. Glazer * Director - --------------------------- Adam Kirsch * Director - --------------------------- Robert F. White *By: /s/Michael F. Anthony ------------------------------ For himself in the capacities indicated above and as attorney-in-fact Date: December 2, 1996
-6- EXHIBIT INDEX
Exhibit Number Title of Exhibit PAGE - ------ ---------------- ---- 5. Opinion of Ropes & Gray. 8 10.1 1996 Directors Stock Option Plan (Incorporated - by reference to Exhibit A of Proxy Statement accompanying the Registrant's submission of Schedule 14A filed with the Commission on May 1, 1996). 23.1 Consent of Price Waterhouse LLP. 9 23.2 Consent of Ropes & Gray (contained in the - opinion filed as Exhibit 5 to this registration statement). 24. Powers of Attorney. 10
EX-5 2 OPINION OF ROPES AND GRAY Exhibit 5 ROPES & GRAY ONE INTERNATIONAL PLACE BOSTON, MASSACHUSETTS 02110-2624 (617) 951-7000 FAX: (617) 951-7050 December 4, 1996 Brookstone, Inc. 17 Riverside Street Nashua, NH 03062 Ladies and Gentlemen: This opinion is furnished to you in connection with a registration statement on Form S-8 (the "Registration Statement"), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, on or about the date hereof for the registration of 150,000 shares of Common Stock, $.001 par value (the "Shares"), of Brookstone, Inc., a Delaware corporation (the "Company"). The Shares are issuable under the Company's 1996 Directors' Stock Option Plan (the "Plan"). We are familiar with the actions taken by the Company in connection with the Plan. For purposes of our opinion, we have examined and relied upon such documents, records, certificates and other instruments as we have deemed necessary. Based on the foregoing, we are of the opinion that, when the Shares have been issued and sold and consideration received therefor by the Company in accordance with the terms of the Plan, the Shares will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. It is understood that this opinion is to be used only in connection with the offer and sale of Shares while the Registration Statement is in effect. Very truly yours, /s/ Ropes & Gray Ropes & Gray EX-23.1 3 CONSENT OF PRICE WATERHOUSE Exhibit 23.1 [LETTERHEAD OF PRICE WATERHOUSE APPEARS HERE] CONSENT OF INDEPENDENT ACCOUNTANTS ---------------------------------- We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 (No. 33- ) of our report dated March 27, 1996, which appears on page 32 of the 1995 Annual Report to Shareholders of Brookstone, Inc., which is incorporated by reference in Brookstone Inc.'s Annual Report on Form 10-K for the year ended February 3, 1996. /s/ Price Waterhouse LLP Boston, Massachusetts December 4, 1996 EX-24 4 POWERS OF ATTORNEY Exhibit 24 POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and directors of Brookstone, Inc., a Delaware corporation (the "Company"), hereby constitute and appoint Merwin F. Kaminstein, Michael F. Anthony and Michael A. O'Hara and each of them severally his true and lawful attorneys-in-fact and agents, with full power of substitution, to execute in his name, place and stead, in his capacity as an officer or director or both, as the case may be, of the Company, in the name and on behalf of and for the benefit of the undersigned, any and all instruments which the said attorneys or attorney may deem necessary or advisable to enable the Company to comply with the Securities Act of 1933, as amended, and any rules, regulations, and requirements of the Securities and Exchange Commission ("SEC") in respect thereof in connection with the registration under said Act of shares of its Common Stock, $.001 par value, to be offered by the Company under its 1996 Directors' Stock Option Plan pursuant to its Registration Statement of Form S-8, and specifically, but without limiting the generality of the foregoing, the power and authority to sign the name of the undersigned, in the capacity or capacities indicated below, to the Registration Statement on Form S-8 filed or to be filed with the SEC in respect to said shares, to any and all amendments including the any post- effective amendments to the Registration Statements, and to any and all instruments or documents necessary or incidental to or filed in connection with the said Registration Statement or the said amendments thereto, and to file the same with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each of said acts and every other act requisite, necessary, expedient or appropriate to be done in and about or concerning the premises, as fully to all intents and purposes as they might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof in, about or concerning the premises or any part thereof, and the execution of any documents by said attorneys or any of them pursuant hereto shall be conclusive evidence that the instruments so executed are authorized to be executed pursuant to this Power of Attorney.
SIGNATURE TITLE --------- ----- /s/Michael F. Anthony President and Chief Executive Officer, Director - --------------------------- (Principal Executive Officer) Michael F. Anthony /s/Merwin F. Kaminstein Chairman of the Board of Directors - --------------------------- Merwin F. Kaminstein /s/Michael F. Anthony Acting Principal Financial and - --------------------------- Accounting Officer Michael F. Anthony /s/Mone Anathan, III Director - --------------------------- Mone Anathan, III /s/Michael L. Glazer Director - --------------------------- Michael L. Glazer /s/Adam Kirsch Director - --------------------------- Adam Kirsch /s/Robert F. White Director - --------------------------- Robert F. White
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