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As filed with the Securities and Exchange Commission on July 10, 1995
Registration No. 33-________
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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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BMC INDUSTRIES, INC.
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(Exact name of registrant as specified in its charter)
MINNESOTA 41-0169210
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(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
TWO APPLETREE SQUARE, MINNEAPOLIS, MINNESOTA 55425
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(Address of Principal Executive Offices) Zip Code
1984 OMNIBUS STOCK PROGRAM, AS AMENDED
(Full title of the plan)
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Michael P. Hawks
Secretary and Treasurer
BMC Industries, Inc.
Two Appletree Square
MINNEAPOLIS, MINNESOTA 55425
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(Name and address of agent for service)
(612) 851-6000
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(Telephone number, including area code, of agent for service)
Approximate date of commencement of proposed sale to the public:
Immediately upon the filing of this Registration Statement
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
maximum Proposed
Title of offering maximum Amount of
securities to Amount to be price aggregate registration
be Registered Registered (1) Per Share(2) Offering Price(2) Fee
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<S> <C> <C> <C> <C>
Common Stock,
no par value
per share. . . 507,000 shares $ 5.073 $ 2,572,011 $ 900
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also covers an
indeterminate amount of additional shares as may be issuable as a result
of anti-dilution provisions described in the plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee and calculated on the basis of the weighted average
exercise price of options to purchase shares previously granted under the
plan.
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PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated by reference in this Registration Statement:
(1) the Company's Annual Report on Form 10-K for the year ended December 31,
1994 (File No. 1-8467); (2) the Company's Quarterly Report on Form 10-Q for the
quarter ending March 31, 1995 (File No. 1-8467); (3) all other reports filed by
the Company pursuant to Sections 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), since December 31, 1994; and (4) the
description of the Company's Common Stock contained in its Registration
Statement on Form 8-A, including any amendments or reports filed for the purpose
of updating such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all shares of Common Stock offered pursuant to this
Registration Statement have been sold or that deregisters all shares of Common
Stock 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.
The financial statements of BMC Industries, Inc. incorporated by reference
in this Registration Statement have been audited by Ernst & Young LLP,
independent certified public accountants, for the periods indicated in their
report thereon which is incorporated by reference in the Annual Report on Form
10-K for the year ended December 31, 1994. The financial statements audited by
Ernst & Young LLP have been incorporated herein by reference in reliance on
their report given on their authority as experts in accounting and auditing.
Item 4. DESCRIPTION OF SECURITIES.
The description of the Company's Common Stock to be offered pursuant to
this Registration Statement has been incorporated by reference into this
Registration Statement as described in Item 3 of this Part II.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Minnesota Statute Section 302A.521 provides that a Minnesota business
corporation shall indemnify any director, officer, or employee of the
corporation made or threatened to be made a party to a proceeding, by reason of
the former or present official capacity (as defined) of the person, against
judgments, penalties, fines, settlements and reasonable expenses incurred by the
person in connection with the proceeding if certain statutory standards are met.
"Proceeding" means a threatened, pending or completed civil, criminal,
administrative, arbitration or investigative proceeding, including one by or in
the right of the corporation. Section 302A.521 contains detailed
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terms regarding such right of indemnification and reference is made thereto for
a complete statement of such indemnification rights.
Article X of the Company's Second Restated Articles of Incorporation
provides that directors, officers, employees and agents, past or present, of the
Company, and persons serving as such of another corporation or entity at the
request of the Company, shall be indemnified by the Company to the fullest
extent permitted by applicable state law.
The Company maintains directors' and officers' liability insurance,
including a reimbursement policy in favor of the Company.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
No securities are to be reoffered or resold pursuant to this
Registration Statement.
Item 8. EXHIBITS.
4.1 Second Restated Articles of Incorporation of the Company, as amended
(incorporated by reference to Exhibit 3.1 to the Company's Annual Report
on Form 10-K for the period ended December 31, 1994 (File No. 1-8467)).
4.2 Amendment to the Second Restated Articles of Incorporation of the
Company (incorporated by reference to Exhibit 3.2 to the Company's
Annual Report on Form 10-K for the period ended December 31, 1994 (File
No. 1-8467).
4.3 Restated Bylaws of the Company, as amended (incorporated by reference to
Exhibit 3.3 to the Company's Annual Report on Form 10-K for the period
ended December 31, 1994 (File No. 1-8467)).
4.4 Specimen Form of the Company's Common Stock Certificate (incorporated by
reference to Exhibit 4.3 to the Company's Registration Statement on Form
S-2 (File No. 2-83809)).
5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly.
23.1 Consent of Oppenheimer Wolff & Donnelly (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Certified Public Accountants.
24.1 Power of Attorney (included on page II-4 of this Registration Statement).
99.1 1984 Omnibus Stock Program, as amended (incorporated by reference to
Exhibit 4.6 to the Company's Registration Statement on Form S-8
(File No. 33-32389)).
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;
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(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 Commission 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;
(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) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed 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 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 registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, except as to
certain insurance policies, 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 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 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 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 Minneapolis, State of Minnesota, on
June 28, 1995.
BMC INDUSTRIES, INC.
By /s/ Merle D. Kerr
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Merle D. Kerr
Vice President Finance and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Merle D. Kerr and Terry R. Nygaard, and each of
them, his true and lawful attorney-in-fact and agent with full powers of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
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 said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons and in the
capacities indicated on June 28, 1995.
/s/ Paul B. Burke /s/ Merle D. Kerr
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Paul B. Burke, President and Chief Merle D. Kerr, Vice President
Executive Officer (Principal Finance and
Executive Officer) Chief Financial Officer
and Director (Principal Financial Officer)
/s/ Terry R. Nygaard /s/ Lyle D. Altman
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Terry R. Nygaard, Corporate Controller Lyle D. Altman, Director
(Principal Accounting Officer)
/s/ John W. Castro /s/ Joe E. Davis
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John W. Castro, Director Joe E. Davis, Director
/s/ Norman C. Mears /S/ S. Walter Richey
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Norman C. Mears, Director S. Walter Richey, Director
/s/ Dr. Richard A. Swalin
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Dr. Richard A. Swalin, Director
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INDEX TO EXHIBITS
ITEM NO. ITEM METHOD OF FILING
4.1 Second Restated Articles of Incorporated by reference to
Incorporation of the Company, Exhibit 3.1 to the Company's
as amended Annual Report on Form 10-K for
the period ended December 31,
1994 (File No. 1-8467).
4.2 Amendment to the Second Restated Incorporated by reference to
Articles of Incorporation Exhibit 3.2 to the Company's
Annual Report on Form 10-K for
the period ended December 31,
1994 (File No. 1-8467).
4.3 Restated Bylaws of the Company, as Incorporated by reference to
amended Exhibit 3.3 to the Company's
Annual Report on Form 10-K for
the period ended December 31,
1994 (File No. 1-8467).
4.4 Specimen Form of the Company's Incorporated by reference to
Common Stock Certificate Exhibit 4.3 to the Company's
Registration Statement on Form
S-2 (File No. 2-83809).
5.1 Opinion and Consent of Oppenheimer Filed electronically.
Wolff & Donnelly
23.1 Consent of Oppenheimer Wolff & Included in Exhibit 5.1.
Donnelly
23.2 Consent of Ernst & Young LLP, Filed electronically.
Independent Certified Public
Accountants
24.1 Power of Attorney Included on page II-4 of the
Registration Statement.
99.1 1984 Omnibus Stock Program, as Incorporated by reference to
amended Exhibit 4.6 to the Company's
Registration Statement on
Form S-8 (File No. 33-32389).
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EXHIBIT 5.1
July 10, 1995
BMC Industries, Inc.
Two Appletree Square
Minneapolis, Minnesota 55425
Re: BMC Industries, Inc.
1984 Omnibus Stock Program
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to BMC Industries, Inc., a Minnesota corporation (the
"Company"), in connection with the registration by the Company of 507,000
additional shares of its Common Stock, no par value (the "Shares"), pursuant to
the Company's Registration Statement on Form S-8 for the Company's 1984 Omnibus
Stock Program, as amended (the "Plan"), as filed with the Securities and
Exchange Commission on July 10, 1995, via EDGAR (the "Registration Statement").
In acting as counsel for the Company and arriving at the opinions expressed
below, we have examined and relied upon originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company,
agreements and other instruments, certificates of officers and representatives
of the Company, certificates of public officials and other documents as we have
deemed necessary or appropriate as a basis for the opinions expressed herein.
In connection with our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents tendered to us as originals, the
legal capacity of natural persons and the conformity to original documents of
all documents submitted to us as certified or photostatic copies.
Based on the foregoing, and subject to the qualifications and limitations set
forth herein, it is our opinion that:
1. The Company has the corporate authority to issue the Shares in the
manner and under the terms set forth in the Registration Statement.
2. The Shares have been duly authorized and, when issued, delivered and
paid for in accordance with the Plan referred to in the Registration
Statement, will be validly issued, fully paid and nonassessable.
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July 10, 1995
Page 2
We express no opinion with respect to laws other than those of the State of
Minnesota and the federal laws of the United States of America, and we assume no
responsibility as to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to its use as part of the Registration Statement.
We are furnishing this opinion to the Company solely for its benefit in
connection with the Registration Statement as described above. It is not to be
used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
/s/ Oppenheimer Wolff & Donnelly
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference in our firm as "Experts" in the Registration
Statement (Form S-8 No. 33-00000) pertaining to the 1984 Omnibus Stock Program
of BMC Industries, Inc. and to the incorporation by reference therein of our
reports dated February 21, 1995, with respect to the consolidated financial
statements of BMC Industries, Inc. incorporated by reference in its Annual
Report (Form 10-K) for the year ended December 31, 1994 and the related
financial statement schedule included therein, filed with the Securities and
Exchange Commission.
Minneapolis, Minnesota
July 10, 1995
