Registration No. ___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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The Keller Manufacturing Company, Inc.
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(Exact name of registrant as specified in its charter)
Indiana 35-0435090
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
701 North Water Street
Corydon, Indiana 47112
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(Address of Principal Executive Offices)
The Keller Manufacturing Company, Inc. Long-Term Equity Incentive Plan
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(Full title of the plan)
Robert W. Byrd, President and Chief Executive Officer
The Keller Manufacturing Company, Inc.
701 North Water Street
Corydon, Indiana 47112
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(Name and address of agent for service)
(812) 738-2222
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(Telephone number, including area code, of agent for service)
Copies to:
Harry L. Gonso
Ice Miller Donadio & Ryan
One American Square, Box 82001
Indianapolis, Indiana 46282
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed maximum
Title of securities Amount to be maximum offering aggregate offering Amount of
to be registered registered price per unit price(1) registration fee
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Common Shares 200,000 shares $8.375 $1,675,000 $507.58
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(1)The registration fee has been calculated pursuant to Rule 457(c) and (h)
based upon the average "bid" and "asked" prices reported for the Common Shares
on August 20, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following information heretofore filed with the Securities and Exchange
Commission ("Commission") pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), is incorporated herein by reference:
(a) Registrant's Registration on Form 10, filed pursuant to Section 12(g) of
the Exchange Act, dated April 30, 1999, Registration No. 000-25939,
including any amendments or reports filed for the purpose of updating that
description.
(b) The information set forth under the caption "Description of Registrant's
Securities to be Registered" in the Registrant's Registration on Form 10,
dated April 30, 1999, Registration No. 000-25939, including any amendments
or reports filed for the purpose of updating that description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the filing of this Registration
Statement and prior to the filing of a post-effective amendment, which indicates
that all of the securities offered hereby have been sold or which deregisters
all such 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 those documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Indiana Business Corporation Law ("IBCL"), the provisions of which govern
the Registrant, empowers an Indiana corporation to indemnify present and former
directors, officers, employees, or agents or any person who may have served at
the request of the corporation as a director, officer, employee, or agent of
another corporation ("Eligible Persons") against liability incurred in any
proceeding, civil or criminal, in which the Eligible Person is made a party by
reason of being or having been in any such capacity, or arising out of his
status as such, if the individual acted in good faith and reasonably believed
that (a) the individual was acting in the best interests of the corporation, or
(b) if the challenged action was taken other than in the individual's official
capacity as an officer, director, employee or agent, the individual's conduct
was at least not opposed to the corporation's best interests, or (c) if in a
criminal proceeding, either the individual had reasonable cause to believe his
conduct was lawful or no reasonable cause to believe his conduct was unlawful.
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The IBCL further empowers a corporation to pay or reimburse the reasonable
expenses incurred by an Eligible Person in connection with the defense of any
such claim, including counsel fees; and, unless limited by its Articles of
Incorporation, the corporation is required to indemnify an Eligible Person
against reasonable expenses if he is wholly successful in any such proceeding,
on the merits or otherwise. Under certain circumstances, a corporation may pay
or reimburse an Eligible Person for reasonable expenses prior to final
disposition of the matter. Unless a corporation's articles of incorporation
otherwise provide, an Eligible Person may apply for indemnification to a court
which may order indemnification upon a determination that the Eligible Person is
entitled to mandatory indemnification for reasonable expenses or that the
Eligible Person is fairly and reasonably entitled to indemnification in view of
all the relevant circumstances without regard to whether his actions satisfied
the appropriate standard of conduct.
Before a corporation may indemnify any Eligible Person against liability or
reasonable expenses under the IBCL, a quorum consisting of directors who are not
parties to the proceeding must (1) determine that indemnification is permissible
in the specific circumstances because the Eligible Person met the requisite
standard of conduct, (2) authorize the corporation to indemnify the Eligible
Person and (3) if appropriate, evaluate the reasonableness of expenses for which
indemnification is sought. If it is not possible to obtain a quorum of
uninvolved directors, the foregoing action may be taken by a committee of two or
more directors who are not parties to the proceeding, special legal counsel
selected by the Board or such a committee, or by the shareholders of the
corporation.
In addition to the foregoing, the IBCL states that the indemnification it
provides shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any provision of the articles of incorporation
or bylaws, resolution of the board of directors or shareholders, or any other
authorization adopted after notice by a majority vote of all the voting shares
then issued and outstanding. The IBCL also empowers an Indiana corporation to
purchase and maintain insurance on behalf of any Eligible Person against any
liability asserted against or incurred by him in any capacity as such, or
arising out of his status as such, whether or not the corporation would have had
the power to indemnify him against such liability.
Section 7.1 of Article VII of the Restated Articles of Incorporation of The
Keller Manufacturing Company, Inc. provides certain indemnification provisions
for the benefit of directors, officers, employees and agents of the Registrant.
The Registrant has obtained directors' and officers' liability insurance, the
effect of which is to indemnify the directors and officers of the Registrant and
its subsidiaries against certain losses caused by errors, misleading statements,
wrongful acts, omissions, neglect or breach of duty by them or any matter
claimed against them in their capacities as directors and officers.
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Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Index to Exhibits.
Item 9. Undertakings.
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, as amended (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 the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (1)(i) and (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 with or furnished
to the Commission 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 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.
(4) 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.
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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 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, 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 Corydon, State of Indiana, on July 23 , 1999.
THE KELLER MANUFACTURING COMPANY, INC.
By:/s/
---------------------------------------------
Robert W. Byrd, Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears
below constitutes and appoints Robert W. Byrd and Danny L. Utz, and each or any
of them (with full power to act alone), his or her true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto those
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that those attorneys-in-fact and
agents, or their substitutes, may do or cause to be done by virtue hereof.
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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 July 23, 1999.
/s/
- --------------------------- President, Chief Executive Officer (Principal
Robert W. Byrd Executive Officer) and Chairman
/s/
- --------------------------- Vice President-Finance (Principal Financial Officer,
Danny L. Utz Principal Accounting Officer) and Director
/s/
- --------------------------- Director
Gregory E. Fischer
/s/
- --------------------------- Director
Steven W. Robertson
/s/
- --------------------------- Director
Ronald W. Humin
/s/
- --------------------------- Director
Philip L. Jacobs
/s/
- --------------------------- Director
Marvin C. Miller
/s/
- --------------------------- Director
Brad Ray
/s/
- --------------------------- Director
John C. Schenkenfelder
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Pursuant to the requirements of the Securities Act of 1933, the Plan
Administrator has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of Corydon,
State of Indiana, on July 23 , 1999.
THE KELLER MANUFACTURING COMPANY INC.
LONG-TERM EQUITY INCENTIVE PLAN
By:/s/
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Title: Chairman, President and Chief Executive Officer
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THE KELLER MANUFACTURING COMPANY, INC.
Form S-8
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INDEX TO EXHIBITS
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Exhibit Number
Assigned in
Regulation S-K
Item 601 Description of Exhibit
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(4) 4.1 Specimen Certificate for Common Shares of the Company. (Incorporated by reference to Exhibit 4.1
to the Registrant's Report on Form 10-K for the fiscal year ended May 31, 1985)
4.2 Rights Agreement between The Keller Manufacturing Company, Inc. and J.J.B. Hilliard, W.L. Lyons,
Inc., as Rights Agent, dated as of December 18, 1998, incorporated herein by reference to Exhibit
4.01 of the Registrant's Registration on Form 10.
(5) 5.1 Opinion of Ice Miller Donadio & Ryan
(15) Not Applicable
(23) 23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Ice Miller Donadio & Ryan (Included in Exhibit 5.1)
(24) Power of Attorney (See Signature Page)
(28) Not Applicable
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EXHIBIT 5.1
August 23, 1999
Board of Directors
The Keller Manufacturing Company, Inc.
701 North Water Street
Corydon, IN 47112
Ladies and Gentlemen:
We have acted as counsel to The Keller Manufacturing Company, Inc., an
Indiana corporation (the "Company"), in connection with the filing of a
Registration Statement on Form S-8 (the "Registration Statement"), with the
Securities and Exchange Commission (the "Commission") for the purposes of
registering under the Securities Act of 1933, as amended (the "Securities Act"),
200,000 of the Company's authorized but unissued Common Shares (the "Common
Shares") issuable under The Keller Manufacturing Company, Inc. Long-Term Equity
Incentive Plan (the "Plan").
In connection therewith, we have investigated those questions of law as we
have deemed necessary or appropriate for purposes of this opinion. We have also
examined originals, or copies certified or otherwise identified to our
satisfaction, of those documents, corporate or other records, certificates and
other papers that we deemed necessary to examine for purposes of this opinion,
including:
1. The Company's Articles of Incorporation, together with all amendments
thereto;
2. The Bylaws of the Company, as amended to date;
3. Resolutions relating to the Plan and the Common Shares adopted by the
Company's Board of Directors (the "Resolutions");
4. A specimen certificate representing the Common Shares;
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5. The Registration Statement; and
6. The Plan.
We have also relied, without investigation as to the accuracy thereof, on other
certificates of, and oral and written communications from, public officials and
officers of the Company.
For purposes of this opinion, we have assumed (i) the genuineness of all
signatures of all parties other than the Company; (ii) the authenticity of all
documents submitted to us as originals and the conformity to authentic originals
of all documents submitted to us as certified or photostatic copies; (iii) that
the Common Shares will be issued pursuant to the terms of the Registration
Statement; (iv) that the Resolutions will not be amended, altered or superseded
prior to the issuance of the Common Shares; and (v) that no changes will occur
in the applicable law or the pertinent facts prior to the issuance of the Common
Shares.
Based upon the foregoing and subject to the qualifications set forth in
this letter, we are of the opinion that the Common Shares to be issued pursuant
to the terms of the Plan are validly authorized and, when (a) the pertinent
provisions of the Securities Act and all relevant state securities laws have
been complied with and (b) the Common Shares have been delivered against payment
therefor as contemplated by the Registration Statement and the Plan, the Common
Shares will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act or under the rules and regulations of the Commission relating
thereto.
Very truly yours,
ICE MILLER DONADIO & RYAN
EXHIBIT 23.1
Deloitte & Touche LLP Telephone: (502) 562-2000
Suite 2100 Facsimile: (502) 562-2073
220 West Main Street
Louisville, Kentucky 40202-5313
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Keller Manufacturing Company, Inc. on Form S-8 of our report dated January
27, 1999, appearing in the Registration Statement on Form 10 of The Keller
Manufacturing Company, Inc. for the year ended December 31, 1998.
/s/
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Louisville, Kentucky
August 23, 1999
