S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on March 30, 2010
As
filed with the Securities and Exchange Commission on March 30,
2010
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
___________________
PATRICK
INDUSTRIES, INC.
(Exact
name of Registrant as specified in its charter)
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Indiana
(State
or other jurisdiction of incorporation or
organization)
|
35-1057796
(I.R.S.
Employer Identification No.)
|
107
West Franklin Street, P.O. Box 638
Elkhart,
IN 46515
(574) 294-7511
(Address,
including zip code, and telephone number,
including
area code, of Registrant's principal executive offices)
___________________
|
PATRICK
INDUSTRIES, INC. 2009 OMNIBUS INCENTIVE PLAN
(Full
title of the Plan)
Andy
L. Nemeth
Executive
Vice President-Finance and Chief Financial Officer
107
West Franklin Street, P.O. Box 638
Elkhart,
IN 46515
Telephone:
(574) 294-7511
(Name,
address, including zip code, and telephone number,
including
area code, of Registrant's agent for
service)
|
___________________
|
Copy
to:
|
|
Robert
A. Schreck, Jr., P.C.
McDermott
Will & Emery LLP
227
West Monroe Street
Chicago,
IL 60606
Telephone:
(312) 372-2000
|
___________________
Indicate
by check mark whether the Registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
CALCULATION
OF REGISTRATION FEE
|
Title
of securities
to
be registered
|
Amount
to be registered
(1)
(2)
|
Proposed
maximum
offering
price
per
share (3)
|
Proposed
maximum aggregate offering price (3)
|
Amount
of
registration
fee
|
|
Common
Stock, without par value, including Preferred Share Purchase Rights
(4)
|
750,000
|
$3.05
|
$2,287,500
|
$164
|
|
(1)
|
In
addition, the number of shares available for issuance under the Patrick
Industries, Inc. 2009 Omnibus Incentive Plan (the “2009 Plan”) include
shares subject to outstanding awards under the Registrant’s 1987 Stock
Option Program, as amended and restated (the “Prior Plan”) and shares that
were available for future awards under the Prior Plan as of October 19,
2009, all of which were previously registered under Registrant's
Registration Statement on Form S-8 (SEC No.
333-145717).
|
|
(2)
|
Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the “Securities
Act”), this Registration Statement shall also cover any additional shares
of Common Stock which may become issuable pursuant to the antidilution
provision of the 2009 Plan.
|
|
(3)
|
Estimated
solely for purposes of computing the registration fee pursuant to Rule
457(c) and (h) under the Securities Act on the basis of the
average of the high and low sales prices of the Common Stock reported on
The Nasdaq Global Market on March 25,
2010.
|
|
(4)
|
Prior
to the occurrence of certain events, the Preferred Share Purchase Rights
will not be evidenced separately from the Common Stock.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information
required by Part I to be contained in the Section 10(a) prospectus is omitted
from this Registration Statement in accordance with Rule 428 under the
Securities Act, as amended, and the Note to Part I of Form S-8.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of
Documents by Reference.
The
Registrant hereby incorporates by reference into this Registration Statement the
following documents previously filed with the SEC:
(a) The
Registrant’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2009, filed with the SEC on March 30, 2010;
(b) The
Registrant’s current report on Form 8-K filed with the SEC on January 4, 2010;
and
(c) The
description of the Registrant’s Common Stock and the Preferred Share Purchase
Rights contained in a Registration Statement on Form 8-A filed with the SEC on
April 3, 1996 pursuant to Section 12 of the Exchange
Act.
All
documents subsequently filed by the Registrant 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
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference to this
Registration Statement and to be a part hereof from the date of filing 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 is also deemed to be incorporated
by reference 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.
|
Not
applicable.
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Item 6. Indemnification
of Directors and Officers.
The
Registrant’s Articles of Incorporation provide that it shall indemnify its
directors and officers to the fullest extent permitted by the Indiana Business
Corporation Law. The Registrant’s By-laws require the company to indemnify its
directors and officers and such provisions require it, among other things,
(i) to indemnify officers and directors against certain liabilities that
may arise by reason of their status or service as directors or officers provided
such persons acted in good faith and in a manner reasonably believed to be in
the best interests of the Registrant and, with respect to any criminal action,
had no cause to believe their conduct was unlawful; (ii) to advance the
expenses actually and reasonably incurred by its officers and directors as a
result of any proceeding against them as to which they
could be indemnified, and (iii) to obtain directors’ and officers’
insurance if available on reasonable terms. The Registrant maintains directors’
and officers’ liability insurance covering all directors and officers of the
Registrant against claims arising from the performance of their duties. There is
no action or proceeding pending or, to our knowledge, threatened which may
result in a claim for indemnification by any director, officer, employee or
agent.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
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3.1
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Articles
of Incorporation of Patrick Industries, Inc. (incorporated herein by
reference to Exhibit 3.1 to Form 10-K filed on March 30,
2010).
|
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3.2
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Amended
and Restated By-Laws of Patrick Industries, Inc. (incorporated herein by
reference to Exhibit 3.1 to Form 8-K filed on January 21,
2009).
|
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4.1
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Second
Amended and Restated Registration Rights Agreement, dated as of December
11, 2008, by and among Patrick Industries, Inc., Tontine Capital Partners,
L.P., Tontine Capital Overseas Master Fund, L.P. and the lenders party
thereto (incorporated herein by reference to Exhibit 10.3 to Form 8-K
filed on December 15, 2008).
|
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4.2
|
Patrick
Industries, Inc. 2009 Omnibus Incentive Plan (incorporated herein by
reference to Appendix A to the revised Definitive Proxy Statement on
Schedule 14A filed on October 20,
2009).
|
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5.1
|
Opinion
of McDermott Will & Emery LLP.
|
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10.1
|
Rights
Agreement, dated March 21, 2006, by and between Patrick Industries, Inc.
and National City Bank (incorporated herein by reference to Exhibit 10.1
to Form 8-K filed on March 23,
2006).
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10.2
|
Amendment
No. 1 to Rights Agreement, dated May 18, 2007, by and between Patrick
Industries, Inc. and National City Bank (incorporated herein by reference
to Exhibit 10.5 to Form 8-K filed on May 24,
2007).
|
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10.3
|
Amendment
No. 2 to Rights Agreement, dated March 12, 2008, between Patrick
Industries, Inc. and National City Bank, as Rights Agent (incorporated
herein by reference to Exhibit 10.3 to Form 8-K filed on March 13,
2008).
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23.1
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Consent
of Crowe Horwath LLP.
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23.2
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Consent
of Ernst & Young LLP.
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23.3
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Consent
of McDermott Will & Emery LLP (included in Exhibit
5.1).
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24.1
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Power
of Attorney (filed as part of signature
page).
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Item
9. Undertakings
(a) The
undersigned 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
of 1933;
(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 SEC pursuant to Rule 424(b) if, in the 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; 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), (a)(1)(ii) and (a)(1)(iii) of this section do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the SEC by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the Registration
Statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
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 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.
(h)
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 SEC 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.
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
Elkhart, State of Indiana, on March 30, 2010.
PATRICK
INDUSTRIES, INC.
By: /s/ Andy L.
Nemeth
Andy L. Nemeth
Executive Vice President – Finance and
Chief Financial Officer
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby
constitutes and appoints Todd M. Cleveland and Andy L. Nemeth, and each of them
(each with full power to act alone), his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
to this Registration Statement (in each case including, without limitation, any
post-effective amendments), 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 to perform each and every act and thing
requisite and necessary to be done in and about the premises, as full and to all
intents and purposes as he might or would 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 of 1933, this Registration Statement
has been signed by the following persons in the capacities indicated on the 30th
day of March, 2010.
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Signature
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Title
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/s/ Paul E.
Hassler
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Chairman
of the Board
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Paul
E. Hassler
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/s/
Todd M. Cleveland
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President
and Chief Executive Officer and Director
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Todd
M. Cleveland
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(Principal
Executive Officer)
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/s/
Andy L. Nemeth
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Executive
Vice President-Finance and Chief Financial Officer
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Andy
L. Nemeth
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and
Director (Principal Financial Officer)
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/s/
Darin R. Schaeffer
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Vice
President, Corporate Controller, and Principal
Accounting
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Darin
R. Schaeffer
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Officer
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/s/ Terrence D.
Brennan
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Director
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Terrence
D. Brennan
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/s/
Joseph M. Cerulli
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Director
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Joseph
M. Cerulli
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/s/ Keith V.
Kankel
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Director
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Keith
V. Kankel
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/s/
Larry D. Renbarger
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Director
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Larry
D. Renbarger
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/s/ Walter E.
Wells
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Director
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Walter
E. Wells
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