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As filed with the Securities and Exchange Commission on January 14, 1998
Registration No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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JLK DIRECT DISTRIBUTION INC.
PENNSYLVANIA 23-2896928
(State or jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
STATE ROUTE 981 SOUTH
P.O. BOX 231
LATROBE, PENNSYLVANIA 15650-0231
(Address of principal executive offices)
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JLK DIRECT DISTRIBUTION INC.
1997 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
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<TABLE>
<S> <C>
MICHAEL W. RUPRICH, PRESIDENT COPIES OF COMMUNICATIONS TO:
JLK DIRECT DISTRIBUTION INC. Ronald Basso, Esquire
STATE ROUTE 981 SOUTH Buchanan Ingersoll Professional Corporation
P.O. BOX 231 One Oxford Centre
LATROBE, PENNSYLVANIA 15650-0231 301 Grant Street, 20th Floor
(Name and address of agent for service) Pittsburgh, PA 15219-1410
412-539-5000 412-562-3943
(Telephone number of agent for service)
</TABLE>
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
PROPOSED
MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED PER SHARE PRICE REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock
(par value $.01 513,500 $20.00(1) $10,270,000(1) $3,029.65(1)
per share)
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22,000 $26.9375(1) $592,625(1) $174.82(1)
--------------------------------------------------------------------------------
1,464,500 $28.66(2) $41,972,570 $12,381.91(2)
- ---------------------------------------------------------------------------------------------------------------------
TOTAL 2,000,000 ----- $52,835,195 $15,586.38
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</TABLE>
(1) In accordance with Rule 457(h), such price is the price at which the options
with respect to such shares may be exercised.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h). In accordance with Rule 457(h), such price is the average of
the high and low sale prices for the Common Stock as quoted on the New York
Stock Exchange on January 12, 1998, as reported in The Wall Street Journal,
Midwest Edition, on January 13, 1998.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information specified in Part I of this
Registration Statement will be sent or given to employees as specified by Rule
428(b)(1). Such documents are not required to be and are not filed with the
Securities and Exchange Commission (the Commission") either as apart of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended (the "Securities Act").
ITEM 2. COMPANY INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Upon written or oral request, any of the documents incorporated herein
by reference in Item 3 of Part II of this Registration Statement (which
documents are incorporated by reference in this Section 10(a) Prospectus) other
documents required to be delivered to eligible employees pursuant to Rule 428(b)
or additional information about the JLK Direct Distribution Inc. 1997 Stock
Option and Incentive Plan and its administrators are available without charge by
contacting:
JLK Direct Distribution Inc.
State Route 981 South
P.O. Box 231
Latrobe, PA 15650-0231
(412) 539-5000
Attn: Kevin G. Nowe, Esquire
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement relates to the JLK Direct Distribution Inc.
1997 Stock Option and Incentive Plan (the "Plan"). JLK Direct Distribution Inc.
(the "Company") is incorporated in the Commonwealth of Pennsylvania.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company are
incorporated herein by reference:
(a) The Company's Form 10-K for the fiscal year ended June 30, 1997 as
filed by the Company with the Securities and Exchange Commission (the
"Commission") on September 29, 1997, and as amended by the Company's Form 10-K/A
filed with the Commission on October 16, 1997.
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(b) All other reports, if any, filed pursuant to Section 13(a) or 15(d)
of the Exchange Act of 1934, as amended (the "Exchange Act") since the end of
the fiscal year covered by the Company document referred to in (a) above.
(c) The description of the Company's Class A Common Stock, par value
$.01 per share (the "Common Stock"), as set forth in the Company's Form 8-A
filed with the Commission on June 5, 1997.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 in 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. INTERESTS OF NAMED EXPERTS AND COUNSEL
Buchanan Ingersoll Professional Corporation ("BIPC"), counsel for the
Company, is issuing an opinion to the Company in connection with this
Registration Statement regarding the legality of the securities being
registered. Mr. William R. Newlin, the Managing Director and a shareholder of
BIPC, is the Chairman of the Board of the Company and beneficially owns 20,000
shares of its Common Stock. However, except as set forth above, as of the date
hereof, neither BIPC, nor any of the attorneys of BIPC who may be deemed to be
substantively involved in this Registration Statement, beneficially owned any
shares of the Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pennsylvania statutory law regarding directors and officers insurance
and indemnification is embodied in Subchapter D (Sections 1741 through 1750) of
the Pennsylvania Business Corporation Law of 1988, as amended (the "BCL").
Section 1741 (relating to third party actions) and 1742 (relating to derivative
actions) of the BCL provide that, unless otherwise restricted by its bylaws, a
business corporation shall have the power to indemnify any person who is made a
party to a third-party or derivative action, respectively, by reason that such
person is or was a representative of the corporation. The BCL defines
representative to mean a director, officer, employee or agent thereof (a
"Representative"). These sections further state that the corporation is
authorized to indemnify the Representative against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with the action. However, the
Representative must have acted in good faith and with a reasonable belief that
his or her actions were in the best interests, or not opposed to the best
interests, of the corporation; and with respect to any criminal proceeding, the
Representative must have had no reasonable cause to believe his or her conduct
was unlawful.
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Section 1743 of the BCL provides mandatory indemnification for a
Representative if he or she succeeds on the merits or otherwise in the defense
of any claim or action. The corporation must indemnify him or her to the extent
of his or her actual and reasonable expenses (including attorney's fees) in
connection with the claim or action.
Section 1746(a) states that the statutory rights of indemnification
shall not be deemed exclusive of any other rights to which a person might be
entitled under any bylaw, agreement, or otherwise. However, 1746(b) forbids
indemnification to be made in any case where the act or failure to act giving
rise to the claim is determined by a court to be willful misconduct or
recklessness. A corporation may not provide indemnification in the case of
willful misconduct or recklessness.
The BCL, in Section 1747, also authorizes corporations to purchase and
maintain insurance on behalf of a Representative, whether or not the corporation
would have the power to indemnify him or her. Such insurance is declared to be
consistent with Pennsylvania's public policy.
Article 10 of the Company's Amended and Restated Articles of
Incorporation provides that a director shall not be personally liable for
monetary damages for any action taken or failed to be taken unless the director
has breached or failed to perform the duties of his or her office and such
breach or failure to perform constitutes self-dealing, willful misconduct or
recklessness. A director's criminal or tax liability is not limited by the
foregoing provision.
Section 8.2 of Article 8 of the Company's bylaws requires the Company
to indemnify any director or officer who is involved in any action, suit or
proceeding, whether, civil, criminal, administrative or investigative, unless a
court determines that such director or officer's conduct constitutes willful
misconduct or recklessness. However, the Company will indemnify a director or
officer who initiates an action only if the action was authorized by the board
of directors. The right to indemnification conferred by this bylaw includes
payment of all reasonable expenses, including attorney's fees, and any liability
and loss. The bylaws further provide that any director or officer who is
entitled to indemnification but is not paid in full by the Company within
forty-five (45) days after a written claim, may bring suit against the Company;
and if the director or officer succeeds, in whole or in part, he or she shall be
entitled to be paid also the expense of prosecuting such claim.
Generally, the Company has entered into indemnification contracts with
directors and officers of the Company which entitle them to full indemnification
in accordance with the BCL and the Company's bylaws. Also, pursuant to the
indemnification contracts, the Company is obligated to purchase and maintain
directors and officers' liability insurance. Accordingly, the Company provides
insurance contracts which insure its directors and officers, within the limits
and subject to the limitations of the policies, against certain expenses and
liabilities which have been incurred by, or resulted from, any actions, suits or
proceedings to which they are parties by reason of being or having been
directors or officers of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
The following is a list of exhibits filed as part of this Registration
Statement, which are incorporated herein:
4.01 Amended and Restated Articles of Incorporation, of the Company
incorporated by reference to Exhibit 3.A of Amendment No. 1 to the
Company's Registration Statement on Form S-1 (No. 333-25989), filed
with the Commission on June 4, 1997 ("Amendment No. 1").
4.02 By-laws of the Company (incorporated herein by reference to Exhibit
3.B of the Amendment No. 1.
5.01 Opinion of Buchanan Ingersoll Professional Corporation (filed
herewith).
23.01 Consent of Arthur Andersen LLP (filed herewith).
23.02 Consent of Buchanan Ingersoll Professional Corporation (contained in
opinion filed as Exhibit 5.01).
24 Powers of Attorney (included as part of the signature page hereof).
ITEM 9. UNDERTAKINGS
(a) The undersigned Company 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;
(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.
(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.
Provided however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by the
foregoing paragraphs is contained in periodic reports
filed by the Company
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pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in
the Registration Statement.
(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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act) that is
incorporated by reference in this 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 Company pursuant to the provisions described in Item 6 of this
Registration Statement, or otherwise, the Company has been advised that in the
opinion of the Securities and Exchange 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Unity Township, Westmoreland County, Commonwealth of
Pennsylvania, on the 14th day of January, 1998.
JLK DIRECT DISTRIBUTION INC.
By: /s/ MICHAEL J. MUSSOG
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Michael J. Mussog
Vice President and
Chief Financial Officer
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 January 14, 1998.
KNOW ALL MEN BY THESE PRESENTS that each person whose signature below
constitutes and appoints William R. Newlin and David T. Cofer, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and revocation, for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and any and all related Registration
Statements (including amendments thereto) filed pursuant to Rule 462
promulgated under the Securities Act of 1933, 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 perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C>
*
- ------------------------------- President and Director
Michael W. Ruprich and Principal Executive Officer
/s/ Michael J. Mussog
- ------------------------------- Vice President
Michael J. Mussog and Chief Financial Officer (Principal Financial
and Accounting Officer)
*
- ------------------------------- Director
Richard C. Alberding
*
- ------------------------------- Director
Jeffrey M. Boetticher
*
- ------------------------------- Director
Irwin. L. Elson
*
- ------------------------------- Director
Robert L. McGeehan
*
- ------------------------------- Director
Aloysius T. McLaughlin, Jr.
*
- ------------------------------- Chairman of the Board of Directors
William R. Newlin
</TABLE>
* By: /s/ Michael J. Mussog
------------------------
Attorney-in-fact
<PAGE> 8
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.01 Amended and Restated Articles of Incorporation of the Company
incorporated by reference to Exhibit 3.A of Amendment No. 1 to the
Company's Registration Statement on Form S-1 (No. 333-25989), as filed
with the Commission on June 4, 1997 ("Amendment No. 1").
4.02 By-laws of the Company incorporated by reference to Exhibit 3.B of
Amendment No. 1.
5.01 Opinion of Buchanan Ingersoll Professional Corporation (filed
herewith).
23.01 Consent of Arthur Andersen LLP (filed herewith).
23.02 Consent of Buchanan Ingersoll Professional Corporation (contained in
opinion filed as Exhibit 5.01).
24 Powers of Attorney (included as part of the signature page hereof).
<PAGE> 1
Exhibit 5.01
Board of Directors
JLK Direct Distribution Inc.
South Route 981
P.O. Box 231
Latrobe, PA 15650
Gentlemen:
We have acted as counsel to JLK Direct Distribution Inc., a
Pennsylvania corporation (the "Company"), in connection with the proposed
issuance by the Company of up to 2,000,000 shares of the Company's Class A
Common Stock, par value $0.01 per share (the "Common Stock"), pursuant to the
terms of the 1997 JLK Direct Distribution Inc. Stock Option and Incentive Plan
(the "Plan").
In connection with such proposed issuance, we have examined the Plan,
the Articles of Incorporation of the Company, as amended and restated, the
By-laws of the Company, (as amended and restated), the relevant corporate
proceedings of the Company, the Registration Statement on Form S-8 covering the
issuance of the shares, and such other documents, records, certificates of
public officials, statutes and decisions as we consider necessary to express the
opinions contained herein. In the examination of such documents, we have assumed
the genuineness of all signatures and the authenticity of all documents
submitted to us as originals and the conformity to those original documents of
all documents submitted to us as certified or photostatic copies.
Based on the foregoing, we are of the opinion that when the
Registration Statement shall have been declared effective by order of the
Securities and Exchange Commission and when the Common Stock has been duly
issued and delivered pursuant to the terms of the Plan, such shares of Common
Stock will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
BUCHANAN INGERSOLL
PROFESSIONAL CORPORATION
By: /s/ LEWIS U. DAVIS
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Exhibit 23.01
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
July 21, 1997, included (or incorporated by reference), and all references to
our firm included in this registration statement.
Arthur Andersen LLP
Pittsburgh, Pennsylvania
