-----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, PdBpKrknaeWYpMmEpKeCK6m7KR7Zw3IcEVum2IaETuVFk3ZwBSkR8Rwow8aqIma9 0s84pbyLEx6JLZcG0GVrDg== 0000908834-00-000071.txt : 20000427 0000908834-00-000071.hdr.sgml : 20000427 ACCESSION NUMBER: 0000908834-00-000071 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000426 EFFECTIVENESS DATE: 20000426 FILER: COMPANY DATA: COMPANY CONFORMED NAME: LILLY INDUSTRIES INC CENTRAL INDEX KEY: 0000059479 STANDARD INDUSTRIAL CLASSIFICATION: PAINTS, VARNISHES, LACQUERS, ENAMELS & ALLIED PRODUCTS [2851] IRS NUMBER: 350471010 STATE OF INCORPORATION: IN FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-35680 FILM NUMBER: 609662 BUSINESS ADDRESS: STREET 1: 733 S WEST ST CITY: INDIANAPOLIS STATE: IN ZIP: 46225 BUSINESS PHONE: 3176876700 MAIL ADDRESS: STREET 1: 733 S WEST STREET CITY: INDIANNAPOLIS STATE: IN ZIP: 46225 FORMER COMPANY: FORMER CONFORMED NAME: LILLY INDUSTRIAL COATINGS INC DATE OF NAME CHANGE: 19911229 S-8 1 LILLY INDUSTRIES REGISTRATION STATEMENT Registration No. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 LILLY INDUSTRIES, INC. (Exact name of Registrant as specified in its charter) Indiana 35-0471010 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 200 W. 103rd Street Indianapolis, Indiana 46290 (Address of Principal Executive Offices) (Zip Code) LILLY INDUSTRIES, INC. 1992 STOCK OPTION PLAN LILLY INDUSTRIES, INC. EMPLOYEE STOCK PURCHASE PLAN LILLY INDUSTRIES, INC. 401(k) SAVINGS PLAN (Full title of plans) John C. Elbin Vice President and Chief Financial Officer Lilly Industries, Inc. 200 W. 103rd Street Indianapolis, Indiana 46290 (Name and address of Agent For Service) Telephone number, including area code, of agent for service: 317-814-8700 CALCULATION OF REGISTRATION FEE
==================================================================================================================================== Proposed Proposed Maximum maximum Amount of Amount to be Offering Price aggregate Registration Title of securities to be registered registered (1) per share Offering Price Fee - ------------------------------------------------------------------------------------------------------------------------------------ 1992 Stock Option Plan Common Stock (available for issuance), Without par value (including Common Share Purchase Rights) 738,011 shares $11.22 (2) $8,280,483 $2,186 Common Stock (previously granted), Without par value (including Common Share Purchase Rights) 261,989 shares $14.22 (3) $3,725,484 $ 984 Employee Stock Purchase Plan Common Stock, Without par value (including Common Share Purchase Rights) 413,500 shares $11.22 (2) $4,639,470 $1,225 401(k) Savings Plan, Common Stock, Without par value (including Common Share Purchase Rights) 500,000 shares (4) $11.22 (2) $5,610,000 $1,481 Total 1,913,500 $22,255,437 $5,876 ===================================================================================================================================
(1) Any additional shares of Common Stock to be issued as a result of stock dividends, stock splits, or similar transactions shall be covered by this Registration Statement as provided in Rule 416. (2) Estimated solely to determine the registration fee and based on the average of the high and low sales prices per share of Common Stock of Lilly Industries, Inc. as reported on the New York Stock Exchange on April 19, 2000, pursuant to Rule 457(c) and (h). (3) Computation based on the exercise price of $14.22 per share for outstanding options under the referenced Plan. (4) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the 401(k) Savings Plan referenced above. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Document(s) containing information specified by Part I of the form of Registration Statement on Forms S-8, promulgated under the Securities Act of 1933, as amended (the "1933 Act"), will be sent or given to participants in the Lilly Industries, Inc. 1992 Stock Option Plan, as amended, Lilly Industries, Inc. Employee Stock Purchase Plan and Lilly Industries, Inc. 401(k) Savings Plan (the "Plans") as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the "Commission") under the 1933 Act. Such document(s) are not being filed with the Commission but constitute (along with the documents incorporated by reference into this Form S-8 Registration Statement (the "Registration Statement") pursuant to Item 3 of Part II hereof), a prospectus that meets the requirements of Section 10(a) of the 1933 Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents are hereby incorporated by reference into this Registration Statement: (1) The Annual Report on Form 10-K of Lilly Industries, Inc. (the "Registrant") for the fiscal year ended November 30, 1999 and the Form 10-Q of Lilly Industries, Inc. for the quarter ended February 29, 2000; (2) Annual Report on Form 11-K of Lilly Industries, Inc. for the 401(k) Savings Plan for the year ended December 31, 1998; (3) All other reports filed by Lilly Industries, Inc. pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "1934 Act") by the Registrant since November 30, 1999; and (4) The description of the capital stock of the Registrant contained in the Registrant's Registration Statement on Form S-3 (Registration No. 33-12398) which became effective April 1, 1987, and all amendments or reports filed for the purpose of updating such description, including, but not limited to, the Form 8-A Registration Statement No. 1-11553 filed with the Commission on January 23, 1996, and the Amendment to Form 8-A filed January 25, 1996, pertaining to the Rights Agreement dated January 12, 1996. All documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the 1934 Act prior to the filing of a post-effective amendment that indicates that all shares offered hereby have been sold or that deregisters all shares then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part thereof from the date they are filed. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Chapter 37 of the Indiana Business Corporation Law, as amended ("IBCL"), authorizes every Indiana corporation to indemnify its officers and directors under certain circumstances against liability incurred in connection with proceedings to which the officers or directors are made a party by reason of their relationship to the corporation. Officers and directors may be indemnified where they have acted in good faith, the action taken was not against the interests of the corporation, and the action was lawful or there was no reason or cause to believe the action was unlawful. Chapter 37 to the IBCL also requires every Indiana corporation to indemnify any of its officers or directors (unless limited by the articles of incorporation of the corporation) who were wholly successful on the merits or otherwise, in the defense of any such proceeding, against reasonable expenses incurred in connection with the proceeding. A corporation may also, under certain circumstances, pay for or reimburse the reasonable expenses incurred by an officer or director who is a party to a proceeding in advance of final disposition of the proceeding. The Amended and Restated Articles of Incorporation of the Company (as fully restated on June 21, 1996) provide that the Company shall (with respect to directors) and may (with respect to officers, employees and agents), to the extent empowered to do so by the IBCL or any other applicable laws, indemnify any director 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, administrative or investigative and whether formal or informal (the "Action"), by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, partner, trustee, employee or agent of another entity against expenses, including attorneys' fees, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the Action if such person acted in good faith and in a manner he reasonably believed, in the case of conduct in his official capacity was in the best interests of the Company and in all other cases was not opposed to the best interests of the Company. The Company maintains directors' and officers' liability insurance with an annual aggregate limit of $25,000,000 for the current policy period, subject to a $1,000,000 deductible at the corporate level, for each wrongful act where corporate reimbursement is available to any director or officer. When corporate reimbursement is not available as prescribed by applicable common law, statutory law or the Company's governing documents, the insurer will reimburse the directors and officers with no deductible with respect to losses sustained by them for specified wrongful acts while acting in their capacities, individually or collectively, as such directors or officers. Item 7. Exemption from Registration Claimed. Not Applicable. Item 8. Exhibits. The exhibits furnished with the Registration Statement are listed on page E-1. 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 1933 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; (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 clauses (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those clauses is contained in periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of the 1934 Act that are incorporated by reference in the Registration Statement; (2) that, for the purpose of determining any liability under the 1933 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 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 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 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final adjudication of such issue. S-1 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 Indianapolis, and the State of Indiana, on this 26th day of April, 2000. LILLY INDUSTRIES, INC. By:/s/Douglas W. Huemme -------------------------------- Douglas W. Huemme Chairman of the Board and Chief Executive Officer Each person whose signature appears below hereby authorizes Douglas W. Huemme and William C. Dorris, and each of them, to file one or more amendments (including post-effective amendments) to the registration statement, which amendments may make such changes in the registration statement as either of them deem appropriate, and each such person hereby appoints Douglas W. Huemme and William C. Dorris and each of them, as attorney-in-fact to execute in the name and on behalf of each person individually, and in each capacity stated below, any such amendment to the registration statement. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated. Signature Title Date (1) Principal Executive Officer: /s/Douglas W. Heumme - --------------------------- Chairman of the Board, April 26, 2000 Douglas W. Huemme and Chief Executive Officer (2) Principal Financial Officer: /s/John C. Elbin - ---------------------------- Vice President and April 26, 2000 John C. Elbin Chief Financial Officer (3) Controller or Principal Accounting Officer: /s/Kenneth L. Mills - ---------------------------- Corporate Controller and April 26, 2000 Kenneth L. Mills Assistant Secretary (4) A Majority of the Board of Directors /s/James M. Cornelius April 26, 2000 - ----------------------------------------- James M. Cornelius, Director /s/William C. Dorris April 26, 2000 - ----------------------------------------- William C. Dorris, Director /s/Paul K. Gaston April 26, 2000 - ----------------------------------------- Paul K. Gaston, Director /s/Douglas W. Huemme April 26, 2000 - ----------------------------------------- Douglas W. Huemme, Director /s/Harry Morrison, Ph.D. April 26, 2000 - ----------------------------------------- Harry Morrison, Ph.D., Director April 26, 2000 - ----------------------------------------- Norma J. Oman, Director /s/John D. Peterson April 26, 2000 - ----------------------------------------- John D. Peterson, Director /s/Thomas E. Reilly, Jr. April 26, 2000 - ----------------------------------------- Thomas E. Reilly, Jr., Director /s/John C. Elbin April 26, 2000 - ----------------------------------------- John C. Elbin, Director /s/Robert A. Taylor April 26, 2000 - ----------------------------------------- Robert A. Taylor, Director LILLY INDUSTRIES, INC. 401(k) SAVINGS PLAN. Pursuant to the requirements of the Securities Act of 1933, the Lilly Industries, Inc. 401(k) Savings Plan has duly caused this registration statement to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Indianapolis, Indiana, on April 26, 2000. Lilly Industries, Inc. Savings Plan By: Lilly Industries, Inc., the Plan Administrator By: /s/ Kenneth L. Mills ------------------------------------------ Kenneth L. Mills Corporate Controller and Assistant Secretary INDEX TO EXHIBITS Exhibit No. Description 4(a) Articles 6 and 7 of the Amended and Restated Articles of Incorporation of the Registrant (restated as of June 21, 1996) is incorporated by reference to Exhibit 3(a) of the Registrant's Annual Report on 10-K for the year ended November 30, 1996. (b) Article 2 of the Code of By-Laws, as amended, of the Registrant is incorporated by reference to Exhibit 3(b) of the Registrant's 10-K/A filed with the Securities and Exchange Commission on July 25, 1997. (c) Rights Agreement, dated January 12, 1996, between Lilly Industries, Inc. and KeyCorp Shareholder Services, Inc. as Rights Agent (the "Rights Agreement") is incorporated by reference to Exhibit 4 to the Registrant's Form 8-A filed with the SEC on January 23, 1996. (d) Letter Agreement dated November 29, 1999 appointing National CityBank as Rights Agent under the Rights Agreement is incorporated by reference to Exhibit 4.5 of the Registrant's Annual Report on Form 10-K for the year ended November 30, 1999. (e) Lilly Industries, Inc. 1992 Stock Option Plan is incorporated by reference to Exhibit 10(j) to Lilly Industries, Inc. Form 10-K Annual Report for the fiscal year ended November 30, 1991. First Amendment to Lilly Industries, Inc. 1992 Stock Option Plan is incorporated by reference to Exhibit 10.8 to Lilly Industries, Inc.'s Registration Statement on Form S-4 filed with the Commission on December 5, 1997 (Commission No. 333-41587). Amendment to the Lilly Industries, Inc. 1992 Stock Option Plan is incorporated by reference to Appendix A to Lilly Industries, Inc.'s Schedule 14A (definitive proxy statement for the 2000 Annual Meeting,) filed with the Commission on February 25, 2000. 5 Opinion of Barnes & Thornburg as to the legality of the securities being registered* 23.1 Consent of Ernst & Young LLP 23.2 Consent of Barnes & Thornburg (included as part of Exhibit 5) 24 Power of Attorney (included on pages S-1 and S-2) * The Registrant undertakes that the Registrant has submitted or will submit the 401(k) Savings Plan and all amendments thereto to the Internal Revenue Service ("IRS") in a timely manner and has made or will make all changes required by the IRS in order to qualify the Plan. EX-5 2 OPINION OF BARNES & THORNBURG Exhibit 5 April 25, 2000 Lilly Industries, Inc. 200 W. 103rd Street Indianapolis, IN 46290 Gentlemen: You have requested our opinion in connection with the Registration Statement on Form S-8 (the "Registration Statement") of Lilly Industries, Inc. (the "Corporation"), relating to the offer and sale of 1,000,000 shares of the Common Stock, no par value, (including Common Share Purchase Rights) of the Corporation (the "Common Stock") under the Lilly Industries, Inc. 1992 Stock Option Plan, as amended, (the "Plan"). In connection with your request, we have made such examination of the corporate records and proceedings of the Corporation and considered such questions of law and taken such further action as we deemed necessary or appropriate to enable us to render this opinion. Based upon such examination, we are of the opinion that when the Common Stock has been purchased and the purchase price therefor has been paid as described in the Plan and when the Corporation has complied with the Securities Act of 1933, as amended, and with the securities laws of the State of Indiana and all other jurisdictions in which Common Stock is to be sold pursuant to the Plans, the Common Stock will be legally issued, fully paid and nonassessable. We consent to the filing of this opinion as Exhibit 5 to the Registration Statement. In giving this consent, however, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the Rules and Regulations of the Securities and Exchange Commission thereunder. Very truly yours, BARNES & THORNBURG EX-23.1 3 CONSENT OF ERNST & YOUNG Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Lilly Industries, Inc. 1992 Stock Option Plan, Lilly Industries, Inc. Employee Stock Purchase Plan, and Lilly Industries, Inc. 401(k) Savings Plan of our report dated January 14, 2000, with respect to the consolidated financial statements and schedule of Lilly Industries, Inc. included in its Annual Report (Form 10-K) for the year ended November 30, 1999, and the financial statements and schedules of the Lilly Industries, Inc. Employee 401(k) Savings Plan included in its Annual Report (Form 11-K) for the year ended December 31, 1998, filed with the Securities and Exchange Commission Indianapolis, Indiana April 25, 2000 -----END PRIVACY-ENHANCED MESSAGE-----