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As filed with the Securities and Exchange Commission on June 5, 1995
Registration No.
----------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
LUMEX, INC.
(Exact Name of Registrant as Specified in its Charter)
New York 11-1731581
(State or Other Jurisdiction (I.R.S. Employer Identification
of Incorporation or No.)
Organization)
81 Spence Street
Bay Shore, New York 11706
(516) 273-2200
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
LUMEX, INC.
1995 STOCK RETAINER PLAN FOR
NONEMPLOYEE DIRECTORS
(Full Title of Plan)
Robert McNally
Senior Vice President and Secretary
Lumex, Inc.
81 Spence Street
Bay Shore, New York 11706
(516) 273-2200
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Jeffrey J. Weinberg, Esq.
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Each Class of Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered(1) Share(2) Price(2) Registration Fee
<S> <C> <C> <C> <C>
Common Stock, par value $.10 per share 35,000 shares $12.25 $428,750 $148.00
<FN>
(1) Plus such indeterminate number of shares of Common Stock of the Registrant as may be issued to prevent dilution resulting
from stock dividends, stock splits or similar transactions in accordance with Rule 416 under the Securities Act of 1933.
(2) Estimated pursuant to Rule 457(h) and Rule 457(c) under the Securities Act of 1933, based upon the closing price of the
Registrant's Common Stock as reported on the American Stock Exchange on May 30, 1995.
</TABLE>
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1.
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 part 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.
Upon written or oral request, any of the documents
incorporated 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 Lumex, Inc. 1995 Stock Retainer Plan for Nonemployee
Directors and its administrators are available without charge by
contacting:
Robert McNally
Lumex, Inc.
81 Spence Street
Bay Shore, New York 11706
(516) 273-2200
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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 Commission by Lumex,
Inc. (the "Company") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994.
(b) The Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1995.
(c) The description of the Company's Common Stock, par
value $.10 per share (the "Common Stock"), contained in the Company's
Registration Statement on Form 8-A filed with the Commission pursuant
to Section 12 of the Exchange Act on May 12, 1981, including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 721, 722, 723, 724, 725 and 726 of the Business
Corporation Law of the State of New York (the "BCL") empower a
corporation to indemnify its directors, officers or controlling
persons against liability subject to specified limitations.
Generally, under Section 722 of the BCL, a corporation may indemnify
any person made or threatened to be made a party to an action or
proceeding (other than one by or in the right of the corporation to
procure a judgment in its favor), whether civil or criminal, including
an action by or in the right of any other corporation of any type or
kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or other enterprise, which any director or
officer of the corporation served in any capacity at the request of
the corporation, by reason of the fact that he, his testator or
intestate, was a director or officer of the corporation, or served
such other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement and reasonable expenses, including
attorneys' fees, actually and necessarily incurred as result of such
action or proceeding, or any appeal therein, if such director or
officer acted, in good faith, for a purpose which he reasonably
believed to be in, or, in the case of service for any other
corporation or any partnership, joint venture, trust, employee benefit
plan or other enterprise, not opposed to, the best interest of the
corporation and, in criminal actions or proceedings, in addition, had
no reasonable cause to believe that his conduct was
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unlawful. In addition, a corporation may indemnify any person made,
or threatened to be made, a party to an action by or in the right of
the corporation to procure a judgment in its favor by reason of the
fact that he, his testator or intestate, is or was a director or
officer of the corporation, or is or was serving at the request of the
corporation as a director or officer of any other corporation of any
type or kind, domestic or foreign, of any partnership, joint venture,
trust, employee benefit plan or other enterprise, against amounts paid
in settlement and reasonable expenses, including attorneys' fees,
actually and necessarily incurred by him in connection with the
defense or settlement of such action, or in connection with an appeal
therein, if such director or officer acted in good faith, for a
purpose which he reasonably believed to be in, or, in the case of
service for any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise, not apposed to, the
best interests of the corporation, except that no such indemnification
shall be made in respect of (a) a threatened action, or a pending
action which is settled or otherwise disposed of, or (b) any claim,
issue or matter as to which such person shall have been adjudged to be
liable to the corporation, unless and only to the extent that the
court in which the action was brought, or, if no action was brought,
any court of competent jurisdiction, determines upon application that,
in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such portion of the settlement
amount and expenses as the court deems proper. Under Section 724 of
the BCL, indemnification may also be awarded by a court in certain
circumstances.
Article THIRTEENTH of the Company's Certificate of
Incorporation provides that "a director shall not be personally liable
to the Company or its shareholders for damages for any breach of duty
as a director, except for any such liability arising by reason that,
in addition to any and all other requirements for such liability,
there shall have been a judgment or other final adjudication adverse
to the director that establishes that his acts or omissions were in
bad faith or involved intentional misconduct or a knowing violation of
law or that he personally gained in fact a financial profit or other
advantage to which he was legally entitled or that his acts violated
Section 719 of the New York Business Corporation Law. Neither the
amendment nor repeal of this Article nor the adoption of any
inconsistent provision of the certificate of incorporation shall
eliminate or reduce the effect of this Article with respect to any
matter occurring, or any cause of action, suit or claim that but for
this Article would accrue or arise prior to such amendment, repeal or
adoption of an inconsistent provision. This Article shall neither
eliminate nor limit the liability of a director for any act or
omission occurring prior to the adoption of this Article."
In addition, Article SIXTH of the Certificate of
Incorporation provides that no provision thereof is intended to be
construed as limiting, prohibiting, denying or abrogating any powers
or rights conferred under the BCL, including, in particular, the power
of the Company to furnish indemnification to directors and officers in
the capacities defined and prescribed by the BCL and the defined and
prescribed rights of such persons to indemnification conferred by the
BCL.
The Company carries a directors' and officers' liability
insurance policy which provides coverage against, among other things,
damages, judgments, settlements and costs incurred because of actual
or alleged errors, misstatements, misleading statements, acts,
omissions, neglect or breach of duty by its directors and officers in
the discharge of their duties. Among the types of claims excluded
from coverage under the policy are fines and penalties imposed by law
or matters which may be deemed uninsurable under the law; claims for
libel or slander; claims based upon or attributable to gaining any
personal profit or advantage to which such directors and officers were
not legally entitled; claims for an accounting of profits made from
transactions in securities under Section 16(b) of the Exchange Act or
similar state statutory law or common law provisions; or claims
adjudicated to be materially caused by acts of active and deliberate
dishonesty, with dishonest purpose and intent.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Company as disclosed above, the Company has been
informed that
II-2<PAGE>
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in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4(a) - Restated Certificate of Incorporation of the
Company, as amended (incorporated by reference to
Exhibit 3.1 to the Company's Current Report on
Form 8-K, dated June 7, 1988).
4(b) - By-Laws of the Company, as amended (incorporated
by reference to Exhibit 3(b) to the Company's
Annual Report on Form 10-K for the year ended
December 31, 1987).
4(c) - Lumex, Inc. 1995 Stock Retainer Plan for
Nonemployee Directors (incorporated by reference
to the Company's Notice of Annual Meeting of
Shareholders, dated May 1, 1995).
5 - Opinion of Weil, Gotshal & Manges.
23(a) - Consent of Ernst & Young LLP.
23(b) - Consent of Weil, Gotshal & Manges (included in
Exhibit 5).
24 - Power of Attorney (included as part of the
signature page to this Registration Statement and
incorporated herein by reference).
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;
(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 paragraph (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
II-3<PAGE>
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in periodic reports filed by the Company 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.
(b) The undersigned registrant hereby undertakes 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 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
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 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 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.
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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 Bay Shore,
State of New York, on this 5th day of June, 1995.
LUMEX, INC.
By: /s/ Robert McNally
---------------------------
Name: Robert McNally
Title: Senior Vice President,
Chief Financial Officer
and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Robert McNally acting
individually, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his
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 said
attorney-in-fact and agent 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 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 hereof.
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
--------- ----- ----
/s/ Robert McNally Senior Vice June 5, 1995
------------------------- President, Secretary
Robert McNally and Chief Financial
Officer (Principal
Executive, Financial
and Accounting
Officer)
/s/ James E. George Director June 5, 1995
-------------------------
James E. George
/s/ Thomas W. Kahle Director June 5, 1995
-------------------------
Thomas W. Kahle
/s/ Robert R. McMillan Director June 5, 1995
-------------------------
Robert R. McMillan
/s/ Carol G. Nelson Director June 5, 1995
-------------------------
Carol G. Nelson
/s/ John C. Spratt Director June 5, 1995
-------------------------
John C. Spratt
/s/ Alan H. Weingarten Director June 5, 1995
-------------------------
Alan H. Weingarten
II-5<PAGE>
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE NO.
----------- ----------- --------
4(a) - Restated Certificate of Incorporation of
the Company, as amended (incorporated by
reference to Exhibit 3.1 to the
Company's Current Report on Form 8-K,
dated June 7, 1988).
4(b) - By-Laws of the Company, as amended
(incorporated by reference to Exhibit
3(b) to the Company's Annual Report on
Form 10-K for the year ended December
31, 1987).
4(c) - Lumex, Inc. 1995 Stock Retainer Plan for
Nonemployee Directors (incorporated by
reference to the Company's Notice of
Annual Meeting of Shareholders, dated
May 1, 1995).
5 - Opinion of Weil, Gotshal & Manges.
23(a) - Consent of Ernst & Young LLP.
23(b) - Consent of Weil, Gotshal & Manges
(included in Exhibit 5).
24 - Power of Attorney (included as part of
the signature page to this Registration
Statement and incorporated herein by
reference).
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WEIL, GOTSHAL & MANGES
A Partnership Including Professional Corporations
767 Fifth Avenue New York, NY 10153-0119
(212) 310-8000
Fax: (212) 310-8007
Writer's Direct Line
June 5, 1995
Lumex, Inc.
81 Spence Street
Bay Shore, NY 11706
Gentlemen:
We have acted as counsel to Lumex, Inc., a New York
corporation (the "Company"), in connection with the preparation
and filing of the Registration Statement of the Company on Form
S-8 under the Securities Act of 1933 (the "Registration
Statement"). Capitalized terms defined in the Registration
Statement and used but not otherwise defined herein are used
herein as so defined.
In so acting, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such
corporate records, agreements, documents and other instruments,
and such certificates or comparable documents of public officials
and of officers and representatives of the Company, and have made
such inquiries of such officers and representatives, as we have
deemed relevant and necessary as a basis for the opinions here-
inafter set forth.
In such examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of documents submitted to us as
certified or photostatic copies and the authenticity of the
originals of such latter documents. As to all questions of fact
material to this opinion that have not been independently esta-
blished, we have relied upon certificates or comparable documents
of officers and representatives of the Company.
Based on the foregoing, and subject to the qualifica-
tions stated herein, we are of the opinion that the 35,000 shares
of Common Stock, par value $.10 per share, of the Company (the
"Common Stock") to be issued and sold by the Company pursuant to
the Registration Statement, have been duly authorized and, when
issued and sold as contemplated by the Registration Statement and
the Lumex, Inc. 1995 Stock Retainer Plan for Nonemployee
Directors will be validly issued, fully paid and nonassessable.
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Lumex, Inc.
June 5, 1995
Page 2
The opinions expressed herein are limited to the laws
of the State of New York and the federal laws of the United
States, and we express no opinion as to the effect on the matters
covered by this letter of the laws of any other jurisdiction.
The opinions expressed herein are rendered solely for
your benefit in connection with the transactions described
herein. Those opinions may not be used or relied upon by any
other person, nor may this letter or any copies thereof be
furnished to a third party, filed with a governmental agency,
quoted, cited or otherwise referred to without our prior written
consent.
We hereby consent to be named in the Prospectus as the
attorneys who have passed upon the legality of the securities
being offered thereby and to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
WEIL, GOTSHAL & MANGES
<PAGE>
Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement on Form S-8 pertaining to the Lumex, Inc. 1995
Stock Retainer Plan for Nonemployee Directors of our report dated
February 27, 1995, with respect to the consolidated financial
statements of Lumex, Inc. included in its Annual Report (Form 10-K)
for the year ended December 31, 1994, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Melville, New York
June 5, 1995
