SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Mark IV Industries, Inc.
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(Exact name of registrant specified in its charter)
Delaware 23-1733979
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
501 John James Audubon Parkway, P.O. Box 810, Amherst, NY 14226-0810
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(Address of Principal Executive Offices) (Zip Code)
Mark IV Industries, Inc. and Subsidiaries 1992 Incentive Stock Option Plan
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(Full title of plan)
Richard L. Grenolds, Vice President and Chief Accounting Officer
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501 John James Audubon Parkway, P.O. Box 810, Amherst, NY 14226-0810
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(Name and address of agent for service)
(716) 689-4972
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(Telephone number, including area code, of agent of service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
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Common Stock
$.01 par value 1,653,750(1) $19.625(2) $32,454,844(2) $11,191.33(2)
(1) This Registration Statement also covers an indeterminate number of
shares of Common Stock which may be issuable by reason of stock splits,
stock dividends or similar transactions.
(2) Calculated in accordance with Rule 457(h) promulgated under the
Securities Act of 1933, as amended (the "Securities Act") solely for the
purpose of calculating the registration fee based upon the average of
the high and low sales prices of the common stock as reported by the New
York Stock Exchange on August 29, 1994 as to 1,133,831 shares available
for the future granting of options, and the exercise prices as to
approximately 519,919 shares as to which options are outstanding.
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Part I - Information Required in the Section 10(A) Prospectus
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The documents containing the information specified in Part I of Form
S-8 will be sent or given to employees as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended (the "Securities
Act"), Such documents need not be 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 under the
Securities Act. These documents and the documents incorporated by reference
in the Registration Statement pursuant to Item 3 of Part II of this From S-8,
taken together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act. See Rule 428(a)(1) under the Securities Act.
This Registration Statement on Form S-8 of Mark IV Industries, Inc., a
Delaware corporation (the "Company"), covers 1,653,750 shares of the Company's
Common Stock, par value $.01 per share, reserved for issuance under the Mark
IV Industries, Inc. and Subsidiaries 1992 Incentive Stock Option Plan.
Part II - Information Required in the Registration Statement
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Item 3. Incorporation of Documents by Reference
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The following documents filed with the Securities and Exchange
Commission by the Company are incorporated herein by reference and are a part
hereof from their respective dates of filing:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
February 28, 1994 as amended by the Company's Form 10-K/A Amendment No. 1
dated June 21, 1994 filed pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act").
2. All other reports filed pursuant to Section 13 or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report
referred to in 1 above.
3. The description of the Company's Common Stock which is contained
in the Company's Form 8-A, dated August 28, 1987 as filed pursuant to the
Exchange Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act from the date hereof and prior to termination of
the offering of the securities offered hereby shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of the filing of such documents.
Item 4. Description of Securities
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Not applicable.
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Item 5. Interest of Named Experts and Counsel
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Not applicable.
Item 6. Indemnification of Directors and Officers
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Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") provides in summary, that directors and officers of Delaware
corporations are entitled, under certain circumstances, to be indemnified
against all expenses and liabilities (including attorneys' fees) incurred by
them as a result of suits brought against them in their capacity as a director
or officer, if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, if they had no
reasonable cause to believe their conduct was unlawful; provided, that no
indemnification may be made against expenses in respect of any claim, issue or
matter as to which they shall have been adjudged to be liable to the
corporation, unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
they are fairly and reasonably entitled to be indemnified for such expenses
which such court shall deem proper. Any such indemnification may be made by
the corporation only as authorized in each specific case upon a determination
by the stockholders or disinterested directors that indemnification is proper
because the indemnitee has met the applicable standard of conduct. Article
Ninth of the Registrant's Certificate of Incorporation entitles officers,
directors and controlling persons of the Company to indemnification to the
full extent permitted by Section 145 of the DGCL, as the same may be
supplemented or amended from time to time.
Article Ninth of the Registrant's Certificate of Incorporation further
provides that no director shall have any personal liability to the Registrant
or its stockholders for any monetary damages for breach of fiduciary duty as a
director, provided that such provision does not limit or eliminate the
liability of any directors (i) for breach of such director's duty of loyalty
to the Registrant or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the DGCL (involving certain unlawful dividends or
stock repurchases) or (iv) for any transaction from which such director
derived an improper personal benefit.
Item 7. Exemption from Registration Claimed
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Not applicable.
Item 8. Exhibits
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The Exhibit Index immediately preceding the exhibits and the exhibits
listed thereon are incorporated herein by reference.
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Item 9. Undertakings
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The undersigned Registrant hereby undertakes:
1.(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement 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.
(b) 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.
(c) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
2. 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.
3. 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 of 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 of
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 Town of Amherst, State of New York on
September 2, 1994.
MARK IV INDUSTRIES, INC.
By:/s/ Richard L. Grenolds
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Richard L. Grenolds, Vice President
and Chief Accounting Office
Dated: September 2, 1994
Pursuant to the requirements of the Securities Exchange Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
Signature Title Date
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/s/ Sal H. Alfiero Chairman of the Board September 2, 1994
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Sal H. Alfiero and Chief Executive
Officer
/s/ Clement R. Arrison President, Director September 2, 1994
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Clement R. Arrison
/s/ William P. Montague Executive Vice President September 2, 1994
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William P. Montague and Chief Financial
Officer
/s/ Richard L. Grenolds Vice President and September 2, 1994
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Richard L. Grenolds Chief Accounting Officer
/s/ Gerald S. Lippes Secretary and Director September 2, 1994
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Gerald S. Lippes
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EXHIBIT INDEX
Description
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3.1 Certificate of Incorporation, as amended (incorporated by
reference to Exhibit 28.1 to the Company's Registration Statement
No. 33-45215 on Form S-3, as filed with the SEC on January 24,
1993).
3.2 By-laws of the Registrant (incorporated by reference to Exhibit
4.12 to Amendment No. 1 to the Registrant's Registration Statement
No. 33-41553 on Form S-3, dated August 6, 1991).
4.1 Mark IV Industries, Inc. and Subsidiaries 1992 Incentive Stock
Option Plan, as amended and restated effective March 30, 1994
(incorporated by reference to Exhibit 10.4 to the Company's Annual
Report on Form 10-K for the year ended February 28, 1994, dated
May 24, 1994 file number 1-8862).
5.1* Opinion of Lippes, Silverstein, Mathias & Wexler.
23.1* Consent of Coopers & Lybrand L.L.P.
23.2* Consent of Lippes, Silverstein, Mathias & Wexler (included in
Exhibit 5.1).
____________________
* Filed herewith by direct transmission under the EDGAR program.
EXHIBIT 5.1
September 2, 1994
Mark IV Industries, Inc.
501 John James Audubon Parkway
P.O. Box 810
Amherst, New York 14226-0810
Re: Mark IV Industries, Inc.
Registration Statement on Form S-8
Gentlemen:
We have acted as counsel for Mark IV Industries, Inc., a Delaware
corporation (the "Corporation"), in connection with the preparation and filing
of a registration statement of the Corporation on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, covering up to
1,653,750 shares of its common stock, par value $.01 per share (the "Shares")
to be issued pursuant to the Mark IV Industries, Inc. and Subsidiaries 1992
Incentive Stock Option Plan, as amended and restated effective March 30, 1994
(the "Plan").
We have examined copies of the Certificate of Incorporation and By-Laws
of the Corporation, each as amended to date, and the minutes of various
meetings of the Board of Directors of the Corporation. We have examined the
Registration Statement, the Plan and the original or reproduced or certified
copies of such records of the Corporation, certificates of public officials,
certificates of officers and representatives of the Corporation, and such
other documents, papers, statutes and authorities all as we have deemed
necessary to form the basis of the opinion hereinafter expressed. In such
examinations, we have assumed the genuineness of signatures and the conformity
to original documents of the documents supplied to us as copies thereof.
Based upon the foregoing, we are of the opinion that the Shares, when
duly issued pursuant to the terms of the Plan, will be validly issued, fully
paid and nonassessable.
We hereby consent to be named in the Registration Statement 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,
LIPPES, SILVERSTEIN, MATHIAS & WEXLER
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
of Mark IV Industries, Inc. on Form S-8 of our report dated March 29, 1994,
except as to the information presented in the first and second paragraphs of
Note 13 and in the first paragraph of Note 14, for which the date is April 8,
1994, on our audits of the consolidated financial statements and financial
statement schedules of Mark IV Industries, Inc. as of February 28, 1994 and
1993, and for each of the three fiscal years in the period ended February 28,
1994, which report is included in the Annual Report on Form 10-K, and amended
by Form 10-K/A Amendment No. 1 dated June 21, 1994.
COOPERS & LYBRAND L.L.P.
Rochester, New York
September 2, 1994
