Registration No. 33-52958
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LILLY INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
Indiana 35-0471010
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
733 S. West Street
Indianapolis, Indiana 46225
(Address of Principal Executive Offices)(Zip Code)
LILLY INDUSTRIES, INC. 1992 STOCK OPTION PLAN
(Full title of plan)
Lilly Industries, Inc.
733 South West Street
Indianapolis, Indiana 46225
(Name and address of agent for service)
Telephone number, including area code, of agent for service: 317-687-6713
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed
Title of securities Amount to be offering price per maximum aggregate Amount of
to be registered registered share (1) offering price (1) registration fee
Common Stock,
without par value
1,000,000 (2) $21.125 $21,125,000 $6,401.52
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(1) Estimated solely to determine the registration fee and based on the
average of the high and low sales prices per share of Common Stock of
Lilly Industries, Inc. as reported on the New York Stock Exchange on
July 21, 1997, pursuant to Rule 457(c) and (h).
(2) Any additional shares of Common Stock to be issued as a result of stock
dividends, stock splits, or similar transactions shall be covered by
this Registration Statement as provided in Rule 416.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
Document(s) containing information specified by Part I of the form of
Registration Statement on Form S-8, promulgated under the Securities Act of
1933, as amended (the "1933 Act"), will be sent or given to participants in the
Lilly Industries, Inc. 1992 Stock Option Plan, as amended, (the "Plan") as
specified in Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "Commission") under the 1933 Act. Such document(s) are not being
filed with the Commission but constitute (along with the documents incorporated
by reference into this Form S-8 Registration Statement (the "Registration
Statement") pursuant to Item 3 of Part II hereof), a prospectus that meets the
requirements of Section 10(a) of the 1933 Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference into this
Registration Statement:
(1) The Annual Report on Form 10-K of Lilly Industries, Inc. (the
"Registrant") for the fiscal year ended November 30, 1996;
(2) The Quarterly Reports on Form 10-Q of the Registrant for the
quarters ended February 28, 1997 and May 31, 1997;
(3) All other reports filed pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 (the "1934 Act") by the Registrant since
November 30, 1996; and
(4) The description of the capital stock of the Registrant contained in
the Registrant's Registration Statement on Form S-3 (Registration No. 33-12398)
which became effective April 1, 1987, and all amendments or reports filed for
the purpose of updating such description, including, but not limited to, the
Form 8-A Registration Statement No. 1-11553 filed with the Commission on January
23, 1996, and the Amendment to Form 8-A filed January 25, 1996, pertaining to
the Rights Agreement.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the 1934 Act prior to the
filing of a post-effective amendment that indicates that all shares offered
hereby have been sold or that deregisters all shares then remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part thereof from the date they are filed.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Chapter 37 of the Indiana Business Corporation Law, as amended
("IBCL"), authorizes every Indiana corporation to indemnify its officers and
directors under certain circumstances against liability incurred in connection
with proceedings to which the officers or directors are made a party by reason
of their relationship to the corporation. Officers and directors may be
indemnified where they have acted in good faith, the action taken was not
against the interests of the corporation, and the action was lawful or there was
no reason or cause to believe the action was unlawful. Chapter 37 to the IBCL
also requires every Indiana corporation to indemnify any of its officers or
directors (unless limited by the articles of incorporation of the corporation)
who were wholly successful on the merits or otherwise, in the defense of any
such proceeding, against reasonable expenses incurred in connection with the
proceeding. A corporation may also, under certain circumstances, pay for or
reimburse the reasonable expenses incurred by an officer or director who is a
party to a proceeding in advance of final disposition of the proceeding.
The Amended and Restated Articles of Incorporation of the Company (as
fully restated on June 21, 1996) provide that the Company shall (with respect to
directors) and may (with respect to officers, employees and agents), to the
extent empowered to do so by the IBCL or any other applicable laws, indemnify
any director 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 and whether formal or informal (the
"Action"), by reason of the fact that he is or was a director, officer, employee
or agent of the Company, or is or was serving at the request of the Company as a
director, officer, partner, trustee, employee or agent of another entity against
expenses, including attorneys' fees, judgments, penalties, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with
the Action if such person acted in good faith and in a manner he reasonably
believed, in the case of conduct in his official capacity was in the best
interests of the Company and in all other cases was not opposed to the best
interests of the Company.
The Company maintains directors' and officers' liability insurance with
an annual aggregate limit of $10,000,000 for the current policy period, subject
to a $500,000 deductible at the corporate level, for each wrongful act where
corporate reimbursement is available to any director or officer. When corporate
reimbursement is not available as prescribed by applicable common law, statutory
law or the Company's governing documents, the insurer will reimburse the
directors and officers with no deductible with respect to losses sustained by
them for specified wrongful acts while acting in their capacities, individually
or collectively, as such directors or officers.
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Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The exhibits furnished with the Registration Statement are listed on
page E-1.
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 1933 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 clauses (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed by the Registrant pursuant
to Section 13 or 15(d) of the 1934 Act that are incorporated by reference in the
Registration Statement; (2) that, for the purpose of determining any liability
under the 1933 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 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 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.
(c) Insofar as indemnification for liabilities arising under the 1933
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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933 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
public policy as expressed in the 1933 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 Indianapolis, and the State of Indiana, on this 21st
day of July, 1997.
LILLY INDUSTRIES, INC.
By: /s/ Douglas W. Huemme
-------------------------
Douglas W. Huemme
President and Chief Executive Officer
Each person whose signature appears below hereby authorizes Douglas W.
Huemme and William C. Dorris, and each of them, to file one or more amendments
(including post-effective amendments) to the registration statement, which
amendments may make such changes in the registration statement as either of them
deem appropriate, and each such person hereby appoints Douglas W. Huemme and
William C. Dorris and each of them, as attorney-in-fact to execute in the name
and on behalf of each person individually, and in each capacity stated below,
any such amendment to the registration statement.
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
(1) Principal Executive Officer:
/s/ Douglas W. Huemme
- --------------------------- Chairman of the Board, July 21, 1997
Douglas W. Huemme President and Chief
Executive Officer
(2) Principal Financial Officer:
/s/ John C. Elbin July 21, 1997
- --------------------------- Vice President and
John C. Elbin Chief Financial Officer
(3) Controller or Principal
Accounting Officer:
/s/ Kenneth L. Mills July 21, 1997
- --------------------------- Corporate Accounting
Kenneth L. Mills Director
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(4) A Majority of the Board
of Directors
/s/ James M. Cornelius July 21, 1997
- ----------------------------
James M. Cornelius, Director
/s/ William C. Dorris July 21, 1997
- ----------------------------
William C. Dorris, Director
- ---------------------------- July ___, 1997
Paul K. Gaston, Director
/s/ Douglas W. Huemme July 21, 1997
- ----------------------------
Douglas W. Huemme, Director
- ---------------------------- July ___, 1997
Harry Morrison, Ph.D., Director
/s/ Norma J. Oman July 17, 1997
- ----------------------------
Norma J. Oman, Director
/s/ John D. Peterson July 17, 1997
- ----------------------------
John D. Peterson, Director
/s/ Thomas E. Reilly, Jr. July 16, 1997
- ----------------------------
Thomas E. Reilly, Jr., Director
- ---------------------------- July ___, 1997
Van P. Smith, Director
/s/ Robert A. Taylor July 18, 1997
- ----------------------------
Robert A. Taylor, Director
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INDEX TO EXHIBITS
Exhibit No. Description
4(a) Articles 6 and 7 of the Amended and Restated Articles of
Incorporation of the Registrant (restated as of June 21, 1996)
is incorporated by reference to Exhibit 3(a) of the
Registrant's Annual Report on 10-K for the year ended November
30, 1996.
(b) Article 2 of the Code of By-Laws, as amended, of the
Registrant is incorporated by reference to Exhibit 3(b) of the
Registrant's 10-K/A filed with the Securities and Exchange
Commission on July 25, 1997.
5 Opinion of Barnes & Thornburg as to the legality of the
securities being registered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Barnes & Thornburg (included as part of Exhibit 5)
24 Power of Attorney (included on pages S-1 and S-2)
EXHIBIT 5
July 28, 1997
Lilly Industries, Inc.
733 South West Street
Indianapolis, IN 46225
Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") of Lilly Industries, Inc.
(the "Corporation"), relating to the offer and sale of 1,000,000 shares of the
Common Stock, no par value, (including Common Share Purchase Rights) of the
Corporation (the "Common Stock") under the Lilly Industries, Inc. 1992 Stock
Option Plan, as amended (the "Plan"). In connection with your request, we have
made such examination of the corporate records and proceedings of the
Corporation and considered such questions of law and taken such further action
as we deemed necessary or appropriate to enable us to render this opinion.
Based upon such examination, we are of the opinion that when the Common
Stock has been purchased and the purchase price therefor has been paid as
described in the Plan and when the Corporation has complied with the Securities
Act of 1933, as amended, and with the securities laws of the State of Indiana
and all other jurisdictions in which Common Stock is to be sold pursuant to the
exercise of stock options or stock appreciation rights granted under the Plan,
the Common Stock will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, however, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
Barnes & Thornburg
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement (Form S-8 No. 33-52958) of our report dated January 13, 1997, with
respect to the consolidated financial statements of Lilly Industries, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
November 30, 1996 and the related financial statement schedule included therein,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Indianapolis, Indiana
July 28, 1997
