<PAGE>
As filed with the Securities and Exchange Commission on March 30, 1999
Registration No. 333-71483-1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933*
DURA AUTOMOTIVE SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 38-3185711
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
4508 IDS Center 55402
Minneapolis, Minnesota (Zip Code)
(Address of Principal Executive Offices)
EXCEL INDUSTRIES, INC. 1994 STOCK COMPENSATION PLAN
(Full Title of the Plan)
Stephen E.K. Graham
Vice President and Chief Financial Officer
Dura Automotive Systems, Inc.
2791 Research Drive
Rochester Hills, Michigan 48309
(Name and Address of Agent for Service)
(248) 299-7500
(Telephone Number, including Area Code of Agent for Service)
COPY TO:
Dennis M. Myers
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE AMOUNT TO BE MAXIMUM OFFERING AGGREGATE REGISTRATION
REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Class A Common Stock,
par value $.01 per share........... 321,900 shares N/A** N/A** N/A**
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</TABLE>
* Filed as a Post-Effective Amendment No. 1 on Form S-8 to such
S-4 Registration Statement pursuant to the procedures described herein.
See "Explanatory Note."
** Fee previously paid.
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<PAGE>
EXPLANATORY NOTE
Dura Automotive Systems, Inc. ("DURA" or "REGISTRANT") hereby amends
its Registration Statement on Form S-4 (No. 333-71483), declared effective on
February 17, 1999, as amended (the "S-4"), by filing this Post-Effective
Amendment No. 1 on Form S-8 relating to up to 321,900 shares of Class A
Common Stock, par value $0.01 per share, of Dura ("DURA COMMON STOCK")
issuable upon the exercise of options to acquire shares of Dura Common Stock
pursuant to the provisions of the Excel Industries, Inc. 1994 Stock
Compensation Plan (the "1994 PLAN").
At a special meeting of stockholders of Dura, held on March 23, 1999,
Dura's stockholders approved the issuance of shares of Dura Common Stock,
pursuant to the merger (the "Merger") of Excel Industries, Inc., an Indiana
corporation ("EXCEL") with and into Dura Operating Corp. ("DURA OPERATING"), a
wholly owned subsidiary of Dura, upon the terms and subject to the conditions of
the Agreement and Plan of Merger, dated January 19, 1999, as amended as of March
9, 1999, by and among Dura, Dura Operating and Excel (the "MERGER AGREEMENT").
The Merger was consummated on March 23, 1999. Pursuant to the Merger Agreement,
among other things, at the effective time of the Merger (the "EFFECTIVE TIME"):
(i) each share of common stock, no par value, of Excel ("EXCEL COMMON STOCK")
issued and outstanding immediately prior to the Effective Time was converted
into either: (A) 0.8 of a share of Dura Common Stock or (B) $25.50 in cash, and
(ii) Dura assumed the 1994 Plan (and all outstanding stock options granted
thereunder).
Prior to the Effective Time, stock options granted under the 1994 Plan
related to shares of Excel Common Stock, which shares had been registered by
Excel under a Registration Statement on Form S-8 (No. 33-53543).
This Post-Effective Amendment No. 1 relates to up to 321,900 shares of
Dura Common Stock issuable pursuant to the 1994 Plan. When the S-4 was filed,
Dura registered 5,335,932 shares of Dura Common Stock (the "S-4 REGISTERED
SHARES"). The S-4 Registered Shares included 321,900 shares of Dura Common Stock
("S-4 OPTION SHARES") anticipated to be exchanged for shares of Excel Common
Stock underlying options to acquire Excel Common Stock ("EXCEL OPTIONS") in the
event Excel Options were exercised after the filing of the S-4 but prior to the
Effective Time. Prior to the Effective Time, none of the S-4 Option Shares were
issued. No additional options have been granted after the Effective Time under
the 1994 Stock Plan. Consequently, up to 321,900 shares of Dura Common Stock
will be issued in connection with Dura's assumption of the 1994 Stock Plan.
The designation of this Post-Effective Amendment as Registration No.
333-71483-1 denotes that this Post-Effective Amendment relates only to the up to
321,900 shares of Dura Common Stock issuable upon exercise of the Excel Options
and that this is the first Post-Effective Amendment to the S-4.
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<PAGE>
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 of 1933, as amended (the "SECURITIES ACT") and the
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by Dura with the Securities and Exchange
Commission (the "COMMISSION") are incorporated herein by reference except to the
extent any statement or information therein is modified, superseded or replaced
by a statement or information contained in this document or in any other
subsequently filed document incorporated herein by reference:
(b) Dura's Current Reports on Form 8-K, filed with the Commission
on January 22, 1999, February 3, 1999 and February 16, 1999.
(c) The description of Dura's Class A Common Stock, par value $.01
per share contained in Item 1 of Dura's Registration Statement on Form 8-A,
filed with the Commission pursuant to Section 12 of the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), on August 5, 1996.
(d) All reports and other documents subsequently filed by Dura pursuant
to Sections 13(a), 13(c), 14 and 15(d) of 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 herein and to be a part hereof from
the date of the filing of such reports and 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 also is
incorporated or 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.
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<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Dura is incorporated under the laws of the State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware provides
that a Delaware corporation may indemnify any persons who are, or are
threatened to be made, parties to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation),
by reason of the fact that such person was an officer, director, employee or
agent of such corporation or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation
or enterprise. The indemnity may include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best
interests and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was illegal. A Delaware
corporation may indemnify any persons who are, or are threatened to be made,
a party to any threatened, pending or completed action or suit by or in the
right of the corporation by reason of the fact that such person was a
director, officer, employee or agent of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. The indemnity may include
expenses (including attorney's fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit,
provided such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporation's best interest except
that no indemnification is permitted without judicial approval if the officer
or director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any
action referred to above, the corporation must indemnify him against the
expenses which such officer or director has actually and reasonably incurred.
Dura's Amended and Restated Certificate of Incorporation and Amended
and Restated Bylaws provide for the indemnification of directors and officers of
Dura to the fullest extent permitted by the General Corporation Law of the State
of Delaware.
In that regard, the Amended and Restated By-laws of Dura provide that
Dura shall indemnify any person who was or is a party or is threatened to be
made a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that he, or a
person of whom he is the legal representative, is or was a director or officer
of Dura, or is or was serving at the request of Dura as a director, officer,
employee, fiduciary, or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, liabilities and losses
(including attorneys' fees actually and reasonably incurred in connection with
such proceeding); provided that Dura shall indemnify any such person seeking
indemnification in connection with a proceeding initiated by such person only if
such proceeding was authorized by the Board of Directors of Dura.
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<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<S> <C>
5.1 Opinion of Kirkland & Ellis with respect to the legality of
the shares of the Class A Common Stock being registered
hereby.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Kirkland & Ellis (included in opinion filed as
Exhibit 5.1).
24.1 Powers of Attorney (previously filed with the S-4).
</TABLE>
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 of 1933; (ii) to reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or 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 this
Registration Statement or any material change to such information in this
Registration Statement; PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the Registration Statement is on Form S-8 and 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
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 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; 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 (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 herein, 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
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<PAGE>
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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<PAGE>
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 this Post-Effective Amendment No. 1 on Form S-8
to Registration Statement (Registration No. 333-71843-1) and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in City of Minneapolis, State of Minnesota, on the
30th day of March, 1999.
DURA AUTOMOTIVE SYSTEMS, INC.
By: /S/ S.A. Johnson
--------------------------
S.A. Johnson
CHAIRMAN OF THE BOARD
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 on Form S-8 to Form S-4 Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated on the 30th day of March, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/s/ S.A. Johnson Chairman of the Board
- ----------------------------------
S.A. Johnson
* President, Chief Executive Officer (Principal
- ---------------------------------- Executive Officer) and Director
Karl F. Storrie
* Vice President and Director
- ----------------------------------
Robert R. Hibbs
* Director
- ----------------------------------
Robert E. Brooker, Jr.
* Director
- ----------------------------------
W.H. Clement
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Signature Title
<S> <C>
* Director
- ----------------------------------
Jack K. Edwards
* Director
- ----------------------------------
J. Richard Jones
* Director
- ----------------------------------
John C. Jorgensen
* Director
- ----------------------------------
James L. O'Loughlin
* Director
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Robert J. Orscheln
* Director
- ----------------------------------
William L. Orscheln
* Director
- ----------------------------------
Eric J. Rosen
* Vice President and Chief Financial Officer
- ---------------------------------- (Principal Financial and Accounting Officer)
Stephen E.K.Graham
</TABLE>
* The undersigned, by signing his name hereto, does hereby sign and
execute this Post-Effective Amendment No. 1 on Form S-8 to Form S-4
Registration Statement on behalf of the above name officers and
directors of Dura pursuant to the Power of Attorney executed by such
officers and directors and previously filed with the Commission.
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<PAGE>
/S/ S.A. Johnson
- ----------------------------------
S.A. Johnson
ATTORNEY-IN-FACT
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NO. DESCRIPTION OF DOCUMENT NO. PAGE
<S> <C> <C>
5.1 Opinion of Kirkland & Ellis with respect to the legality of
the shares of the Class A Common Stock being registered. 11
23.1 Consent of Arthur Andersen LLP. 14
23.2 Consent of Kirkland & Ellis (included in opinion filed as Exhibit 5.1).
24.1 Powers of Attorney (previously filed with the S-4).
</TABLE>
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<PAGE>
KIRKLAND & ELLIS
PARTNERSHIPS INCLUDING PROFESSIONAL CORPORATIONS
200 East Randolph Drive
Chicago, Illinois 60601
To Call Writer Directly: (312) 861-2000 Facsimile:
(312) 861-2000 (312) 861-2200
EXHIBIT 5.1
March 30, 1999
Dura Automotive Systems, Inc.
2791 Research Drive
Rochester Hills, Michigan 48309
Re: Dura Automotive Systems, Inc.
Post-Effective Amendment No. 1 on Form S-8 to
Form S-4 Registration Statement (No. 333-71483-1)
Ladies and Gentlemen:
We are acting as special counsel to Dura Automotive Systems,
Inc., a Delaware corporation (the "Company"), in connection with the proposed
registration by the Company of up to 321,900 shares (the "Shares") of its Class
A Common Stock, par value $.01 per share, to be issued and sold by the Company
under a Post-Effective Amendment No. 1 on Form S-8 to Form S-4 Registration
Statement (No. 333-71483-1), filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Act")
(such Registration Statement, as amended or supplemented, is hereinafter
referred to as the "Registration Statement"). The Shares are to be issued upon
the exercise of outstanding awards granted under the 1994 Stock Compensation
Plan (the "Plan") of Excel Industries, Inc. ("Excel"). The Company recently
acquired Excel through a merger of Excel with and into a wholly owned subsidiary
of the Company.
In that connection, we have examined such corporate
proceedings, documents, records and matters of law as we have deemed necessary
to enable us to render this opinion.
For purposes of this opinion, we have assumed the authenticity
of all documents submitted to us as originals, the conformity to the originals
of all documents submitted to us as copies and the authenticity of the originals
of all documents submitted to us as copies. We have also assumed the legal
capacity of all natural persons, the genuineness of the signatures of persons
signing all documents in connection with which this opinion is rendered, the
authority of such persons signing on behalf of the parties thereto other than
the Company and the due authorization, execution and delivery of all documents
by the parties thereto other than the Company. As to any
London Los Angeles New York Washington, D.C.
<PAGE>
KIRKLAND & ELLIS
Dura Automotive Systems, Inc.
March 30, 1999
Page 2
facts material to the opinions expressed herein, we have relied upon the
statements and representations of officers and other representations of the
Company and others. For purposes of numbered paragraph 1, we have relied
exclusively upon certificates issued by governmental authorities in the relevant
jurisdictions and such opinion is not intended to provide any conclusion or
assurance beyond that conveyed by such certificates.
Our opinion expressed below is subject to the qualifications
that we express no opinion as to the applicability of, compliance with, or
effect of any laws except the internal laws of the State of Illinois, the
General Corporation Law of the State of Delaware and the federal law of the
United States of America.
Based upon and subject to the foregoing qualifications,
assumptions and limitations and the further limitations set forth below, we
hereby advise you that in our opinion:
(1) The Company is a corporation existing and in good standing
under the laws of the State of Delaware.
(2) The Shares are duly authorized and reserved for issuance
under the Plan, and, when (i) the Registration Statement becomes effective under
the Act, (ii) the Shares have been duly executed and delivered on behalf of the
Company countersigned by the Company's transfer agent/registrar and (iii) the
Shares are issued in accordance with the terms of the Plan upon receipt of the
consideration to be paid therefor of at least $0.01 per share, the Shares will
be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the
Commission as Exhibit 5.1 to the Registration Statement. We also consent to the
reference to our firm under the heading "Legal Matters" in the Registration
Statement. In giving this consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Act or the
rules and regulations of the Commission. This opinion and consent may be
incorporated by reference in a subsequent registration statement on Form S-8
filed pursuant to Rule 462(b) under the Act with respect to the registration of
additional securities issuable under the Plan.
We do not find it necessary for the purposes of this opinion,
and accordingly we do not purport to cover herein, the application of the
securities or "Blue Sky" laws of the various states to the issuance and sale of
the Shares.
<PAGE>
KIRKLAND & ELLIS
Dura Automotive Systems, Inc.
March 30, 1999
Page 3
This opinion is limited to the specific issues addressed
herein, and no opinion may be inferred or implied beyond that expressly stated
herein. We assume no obligation to revise or supplement this opinion should the
present laws of the State of Illinois, the General Corporation Law of the State
of Delaware or the federal law of the United States be changed by legislative
action, judicial decision or otherwise.
This opinion is furnished to you pursuant to the applicable
rules and regulations promulgated under the Act in connection with the filing of
the Registration Statement.
Very truly yours,
/s/ Kirkland & Ellis
KIRKLAND & ELLIS
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports and to all references to our Firm included in or made a part of this
registration statement.
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota,
March 30, 1999
