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As filed with the Securities and Exchange Commission on March 28, 1997
Registration No. 333-
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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
THE DAVEY TREE EXPERT COMPANY
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Ohio 34-0176110
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1500 North Mantua Street, P.O. Box 5193, Kent, Ohio 44240-5193
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(Address of Principal Executive Offices) (Zip Code)
The Davey 401KSOP and ESOP
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(Full title of the plan)
Rosemary T. Nicholas, Assistant Secretary, 1500 N. Mantua Street,
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Kent, Ohio 44240
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(Name and address of agent for service)
(330) 673-9511
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED (1) REGISTERED PER SHARE (2) OFFERING PRICE REGISTRATION FEE
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares 300,000 $18.20 $5,460,000 $1,654.55
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</TABLE>
(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
Plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee.
The Exhibit Index appears on page 11 of sequentially numbered pages of this
Registration Statement. This Registration Statement, including exhibits,
contains 13 pages.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed by the Registrant with the Securities and Exchange
Commission are incorporated herein by reference and made a part hereof:
a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996; and
b) The description of the Registrant's Common Shares and rights
to purchase Common Shares under certain circumstances are
contained in the Registrant's Registration Statements filed
with the Commission pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendment or report filed for the purpose of
updating that description.
All documents hereafter filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act from the date hereof and
prior to the termination of the issuance of securities registered hereby shall
be deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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William D. Ginn has served as a Director of the Registrant since 1973.
Mr. Ginn is of counsel to the Cleveland law firm of Thompson Hine & Flory LLP.
The law firm of which Mr. Ginn is of counsel has in the past provided
and continues to provide legal services to the Registrant.
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Item 6. Indemnification of Directors and Officers.
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Article V of the Registrant's Amended and Restated Regulations
provides as follows:
INDEMNIFICATION
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SECTION 1. THIRD PARTY ACTIONS. The Registrant shall indemnify
any person 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 (other than an action or
suit by or in the right of the Registrant), by reason of the fact that he is
or was a director, officer, employee, or agent of the Registrant, or is or
was serving at the request of the Registrant as a director, trustee,
officer, employee, or agent of another corporation, partnership, employee,
or agent of another corporation, partnership, joint venture, trust, or other
enterprise, against expenses (including attorneys' fees), judgments, fines,
and amounts paid in settlement actually and reasonably incurred by him in
connection with the action, suit, or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Registrant and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Registrant or that, with respect
to any criminal action or proceeding, he had reasonable cause to believe
that his conduct was unlawful.
SECTION 2. DERIVATIVE ACTIONS. Other than in connection with
an action or suit in which the liability of a director under Section 1701.95
of the Ohio Revised Code is the only liability asserted, the Registrant
shall indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending, or completed action or suit by or in the
right of the Registrant to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee, or agent of the
Registrant, or is or was serving at the request of the Registrant as a
director, trustee, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of the action or
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suit if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Registrant, except that:
(a) no indemnification of a director shall be made if it is
proved by clear and convincing evidence in a court of competent
jurisdiction that his action or failure to act involved an act or
omission undertaken with deliberate intent to cause injury to the
company or undertaken with reckless disregard for the best interests of
the Registrant, and
(b) no indemnification of an officer, employee, or agent,
regardless of his status as a director, shall be made in respect of any
claim, issue, or matter as to which he is adjudged to be liable for
negligence or misconduct in the performance of his duty to the
Registrant;
unless and only to the extent that the Court of Common Pleas or the court in
which the action or suit was brought determines upon application that,
despite the adjudication of liability but in view of all the circumstances
of the case, he is fairly and reasonably entitled to indemnity for such
expenses as the Court of Common Pleas or the other Court shall deem proper.
SECTION 3. RIGHTS AFTER SUCCESSFUL DEFENSE. To the extent that
a director, trustee, officer, employee, or agent has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to
in Section 1 or Section 2, or in defense of any claim, issue, or matter
therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the action,
suit or proceeding.
SECTION 4. OTHER DETERMINATIONS OF RIGHTS. Except in a
situation governed by Section 3, any indemnification under Section 1 or
Section 2 (unless ordered by a court) shall be made by the Registrant only
as authorized in the specific case upon a determination that indemnification
of the director, trustee, officer, employee, or agent is proper in the
circumstances because he has met the applicable standard of conduct set
forth in Section 1 or Section 2. The determination shall be made (a) by a
majority vote, at a meeting of directors, of those directors who constitute
a quorum and who also were not and are not parties to or threatened with any
such action, suit, or proceeding or (b) if such a quorum is not obtainable
(or even if obtainable) and a majority of disinterested directors so
directs, in a written opinion by independent legal counsel (compensated by
the Registrant) or (c) by the affirmative vote in person or by proxy of the
holders of record of a majority of the shares held by persons who
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were not and are not parties to or threatened with any such action, suit, or
proceeding and entitled to vote in the election of directors, without regard
to voting power which may thereafter exist upon a default, failure, or other
contingency or (d) by the Court of Common Pleas or the court in which such
action, suit, or proceeding was brought.
SECTION 5. ADVANCES OF EXPENSES. Unless at the time of a
director's act or omission that is the subject of an action, suit, or
proceeding referred to in Section 1 or Section 2 hereof, the only liability
asserted against a director in the action, suit, or proceeding referred to
in Section 1 or Section 2 hereof is pursuant to Section 1701.95 of the
Revised Code:
(a) expenses, including attorney's fees, incurred by a
director in defending the action, suit, or proceeding shall be paid by
the Registrant as they are incurred, in advance of the final
disposition of the action, suit, or proceeding upon receipt or an
undertaking by or on behalf of the director in which he agrees both:
(i) to repay the amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or
failure to act involved an act or omission undertaken with deliberate
intent to cause injury to the Registrant or undertaken with reckless
disregard for the best interests of the Registrant and (ii) to
reasonably cooperate with the Registrant concerning the action, suit,
or proceeding.
(b) expenses (including attorney's fees), incurred by a
director, officer, employee, or agent in defending any action, suit or
proceeding referred to in Section 1 or Section 2 of this Article V may
be paid by the Registrant, as they are incurred, in advance of final
disposition of the action, suit, or proceeding, as authorized by the
Board of Directors in the specific case, upon receipt of an undertaking
by or on behalf of the director, officer, employee, or agent to repay
the amount if it is ultimately determined that he is not entitled to be
indemnified by the Registrant.
SECTION 6. PURCHASE OF INSURANCE. The Registrant may purchase
and maintain insurance or furnish similar protection, including, but not
limited to trust funds, letters of credit, or self-insurance, on behalf of
or for any person who is or was a director, officer, employee, or agent of
the Registrant, or is or was serving at the request of the Registrant as a
director, trustee, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against any
liability asserted against him and incurred by him
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in any capacity, or arising out of his status as such, whether or not the
Registrant would have the power to indemnify him against liability under the
provisions of this Article or of the Ohio General Corporation Law. Insurance
may be purchased from or maintained with a person in which the Registrant
has a financial interest.
SECTION 7. MERGERS. In the case of a merger into the
Registrant of a constituent corporation which, if its separate existence had
continued, would have been required to indemnify directors, trustees,
officers, employees, or agents in specified situations, any person who
served as a director, officer, employee or agent of the constituent
corporation, or served at the request of the constituent corporation as a
director, trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise, shall be entitled to
indemnification by the Registrant (as the surviving corporation) to the same
extent he would have been entitled to indemnification by the constituent
corporation if its separate existence had continued.
SECTION 8. NON-EXCLUSIVITY; HEIRS. Indemnification authorized
by this Article shall not be exclusive of, and shall be in addition to, any
other rights granted to those seeking indemnification as a matter of law or
under the Articles, the Regulations, any agreement, a vote of shareholders
or disinterested directors, any insurance purchased by the Registrant, any
action by the directors to take into account amendments to the Ohio General
Corporation Law that expand the authority of the Registrant to indemnify a
director, officer, employee, or agent of the Registrant, or otherwise, both
as to action in his official capacity and as to action in another capacity
while holding an office, and shall continue as to a person who has ceased to
be a director, trustee, officer, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrators of such a person.
Item 7. Exemption From Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Exhibit
Number Description
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5.1 Opinion and Consent of Thompson Hine & Flory LLP.
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23.1 Consent of Thompson Hine & Flory LLP (included in
Exhibit 5.1).
23.2 Independent Auditors' Consent of Deloitte & Touche
Item 9. Undertakings.
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(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 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 and 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 20 percent 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) of this section do not apply if the
registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be
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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 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 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.
(c) The undersigned Registrant hereby undertakes that, 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, 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
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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.
(d) The undersigned Registrant hereby undertakes to submit The
Davey 401KSOP and ESOP (the "Plan") to the Internal Revenue
Service ("IRS") in a timely manner and to make all changes
required by the IRS in order to qualify the Plan.
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 Kent, State of Ohio, this 25th day of March, 1997.
THE DAVEY TREE EXPERT COMPANY
By: /s/ R. Douglas Cowan
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R. Douglas Cowan, President
and Chief Executive Officer
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
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/s/ John W. Joy Chairman of the Board and March 14, 1997
- ------------------------- Director
John W. Joy
/s/ R. Douglas Cowan President, Chief Executive March 14, 1997
- ------------------------- Officer and Director
R. Douglas Cowan
/s/ David E. Adante Executive Vice President, March 14, 1997
- ------------------------- Chief Financial Officer
David E. Adante and Secretary/Treasurer
/s/ Cary Blair Director March 14, 1997
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Cary Blair
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/s/ Richard E. Dunn Director March 14, 1997
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Richard E. Dunn
/s/ William D. Ginn Director March 14, 1997
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William D. Ginn
/s/ Richard S. Gray Director March 14, 1997
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Richard S. Gray
/s/ Eugene W. Haupt Director March 14, 1997
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Eugene W. Haupt
/s/ James H. Miller Director March 14, 1997
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James H. Miller
/s/ Thomas J. Murdough Director March 14, 1997
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Thomas J. Murdough
Pursuant to the requirements of the Securities Act of 1933, the trustee has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cleveland, State of Ohio,
on March 25, 1997.
By: /s/ Amy Vegh
---------------------------------
Amy Vegh, Vice President
Key Trust of Ohio, N.A.
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EXHIBIT INDEX
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Exhibit Description Page
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5.1 Opinion and Consent of Thompson Hine & Flory LLP. 12
23.1 Consent of Thompson Hine & Flory LLP (included in
Exhibit 5.1). 12
23.2 Independent Auditors' Consent of Deloitte & Touche. 13
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EXHIBIT 5.1
[THOMPSON HINE & FLORY LLP LETTERHEAD]
March 25, 1997
The Davey Tree Expert Company
1500 N. Mantua Street
Kent, Ohio 44240
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We are acting as counsel to The Davey Tree Expert Company, an Ohio corporation
(the "Company"), in connection with the registration by the Company of 300,000
shares of the Company's common stock, par value $1.00 per share (the "Shares"),
pursuant to the Company's Registration Statement on Form S-8 to be filed with
the Securities and Exchange Commission on March 28, 1997 (the "Registration
Statement").
In this connection, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records, certificates and
written and oral statements of officers and accountants of the Company and of
public officials, and other documents that we have considered necessary and
appropriate for this opinion and, based thereon, we advise you that, in our
opinion:
1. The Company has corporate authority to issue the Shares in the manner
and under the terms set forth in the Registration Statement.
2. The 300,000 shares of Common Stock that are being registered for sale
by the Company under the Registration Statement have been duly
authorized and, when issued, delivered and paid for in accordance with
the terms of the Davey 401KSOP and ESOP Plan, will be legally issued,
fully paid and nonassessable.
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.
Very truly yours,
/s/ THOMPSON HINE & FLORY LLP
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Davey Tree Expert Company on Form S-8 of our report dated February 14,
1997, appearing in the Annual Report on Form 10-K of The Davey Tree Expert
Company for the year ended December 31, 1996.
/s/ DELOITTE & TOUCHE LLP
Cleveland, Ohio
March 26, 1997
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