As filed with the Securities and Exchange Commission
on June19, 1997
Registration No. 333-26909
==============================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
Post-Effective Amendment No. 1
to the
Form S-8
Registration Statement
Under
The Securities Act of 1933
Excel Industries, Inc.
(Exact name of Registrant as specified in its charter)
Indiana 35-1551685
(State of Incorporation) (IRS Employer
Identification No.)
1120 N. Main Street
Elkhart, Indiana 46514
(Address of Principal Executive Offices) (Zip Code)
Excel Industries, Inc.
1997 Long-Term Incentive Plan
(Full title of the plan)
James O. Futterknecht, Jr.
Chairman of the Board and Chief Executive Officer
Excel Industries, Inc.
1120 N. Main Street
P.O. Box 3118
Elkhart, Indiana 46515-3118
(Name and address of agent for service)
(219) 264-2131
(Telephone number, including area code, of agent for service)
Copies to:
Philip L. McCool, Esq.
Sommer & Barnard, PC
4000 Bank One Tower
Indianapolis, Indiana 46204
(317) 630-4000
=================================================================
Part II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The documents listed below, and all documents filed by
registrant pursuant to Sections 13(a), 13(c) 14 and 15(d) of the
Securities Exchange Act of 1934 subsequent to the filing of this
Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, are
deemed to be incorporated by reference in this registration
statement and to be part hereof from the date of filing of this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 28, 1996, filed with the Commission on
March 25, 1997; and
(b) The Registrant's Registration Statement on Form 8-A
Registration No. 1-8486 filed with the Commission on
January 9, 1996, and Amendment No.1 on Form 8-A filed
January 22, 1996.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
The validity of the issuance of the Common Shares registered
hereby will be passed upon for the Registrant by Sommer &
Barnard, PC, Indianapolis, Indiana, counsel for the Registrant.
James K. Sommer, a director of the Registrant is a member of Sommer
& Barnard. Mr. Sommer owns 4,501 Common Shares of the Registrant.
Mr. Sommer also holds options to acquire 3,000 Common Shares of the
Registrant.
Item 6. Indemnification of Directors and Officers.
Chapter 37 of the Indiana Business Corporation law, as amended
(the "Act") grants to each Indiana corporation broad powers to
indemnify directors, officers, employees or agents against expenses
incurred in certain proceedings if the conduct in question was
found to be in good faith and was reasonably believed to be in the
corporation's best interest. This statute provides, however, that
this indemnification should not be deemed exclusive of any other
indemnification rights provided by the articles of incorporation,
by-laws, resolution or other authorization adopted by a majority
vote of the voting shares then issued and outstanding. Section
7.02 of the Code of By-Laws of the Registrant read as follows:
Clause 7.021. Definitions. Terms defined in Chapter 37 of the
Indiana Business Corporation Law (Ind. Code Section 23-1-37, et seq.)
which are used in this Article 7 shall have the same definitions
for purposes of this Article 7 as they have in such chapter of the
Indiana Business Corporation Law.
Clause 7.022. Indemnification of Directors and Officers. The
Corporation shall indemnify any individual who is or was a director
or officer of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, partner or trustee of
another foreign or domestic corporation, partnership, joint
venture, trust employee benefit plan or other enterprise whether or
not for profit, against liability and expenses, including attorneys
fees, incurred by him in any action, suit, or proceeding, whether
civil, criminal, administrative, or investigative, and whether
formal or informal, in which he is made or threatened to be made a
party by reason of being or having been in any such capacity, or
arising out of his status as such, except (i) in the case of any
action, suit, or proceeding terminated by judgment, order, or
conviction, in relation to matters as to which he is adjudged to
have breached or failed to perform the duties of his office and the
breach or failure to perform constituted willful misconduct or
recklessness; and (ii) in any other situation, in relation to
matters as to which it is found by a majority of a committee
composed of all directors not involved in the matter in controversy
(whether or not a quorum) that the person breached or failed to
perform the duties of his office and the breach or failure to
perform constituted willful misconduct or recklessness. The
Corporation may pay for or reimburse reasonable expenses incurred
by a director or officer in defending any action, suit, or
proceeding in advance of the final disposition thereof upon receipt
of (i) a written affirmation of the director's or officer's good
faith belief that such director or officer has met the standard
conduct prescribed by Indiana law; and (ii) an undertaking of the
director or officer to repay the amount paid by the Corporation if
it is ultimately determined that the director or officer is not
entitled to indemnification by the Corporation.
Clause 7.023. Other Employees or Agents of the Corporation.
The Corporation may, in the discretion of the Board of Directors,
fully or partially provide the same rights of indemnification and
reimbursement as hereinabove provided for directors and officers of
the Corporation to other individuals who are or were employees or
agents of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise
whether or not for profit.
Clause 7.024. Non-exclusive Provision. The indemnification
authorized under Section 7.02 above is in addition to all rights to
indemnification granted by Chapter 37 of the Indiana Business
Corporation Law (Ind. Code Section 23-1-37, et. seq.) and in no way
limits the indemnification provisions of such Chapter.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
4* Excel Industries, Inc. 1997 Long-Term
Incentive Plan
5 Opinion re: Legality Opinion
23.1* Consent of Independent Accountants
23.2 Consent of Sommer & Barnard, PC (included in
Exhibit 5)
24* Power of Attorney (Included at page II-4)
________________________
*Previously filed
Item 9. Undertakings.
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;
(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 registration statement is on Form S-3 or Form S-8, and
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.
(4) If the registrant is a foreign private issuer, to
file a post-effective amendment to the registration statement
to include any financial statements required by Section 210.3-19 of
this chapter at the start of any delayed offering or
throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act
need not be furnished, provided that the registrant includes
in the prospectus, by means of a post-effective amendment,
financial statements required pursuant to this paragraph
(a)(4) and other information necessary to ensure that all
other information in the prospectus is at least as current as
the date of those financial statements.
(5) For the 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 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.
(6) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers, and controlling persons of the Company
pursuant to the foregoing provisions described in Item 15, or
otherwise, the Company 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 Company of expenses incurred or paid by a
director, officer or controlling person of the Company 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 Company
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.
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 requirement 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 Elkhart, State of Indiana, on the
19th day of June, 1997.
Excel Industries, Inc.
By: /s/ Joseph A. Robinson
_____________________________
Joseph A. Robinson
Senior Vice President, Secretary,
Chief Financial Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
------------- ------------ --------
/s/ James O. Futterknecht, Jr.* Chief Executive Officer,
- ------------------------------- Chief Operating Officer and
James O. Futterknecht, Jr. Chairman of the Board
Principal Executive Officer
/s/ Joseph A. Robinson Senior Vice-President, 6/19/97
- ------------------------------- Secretary, Chief Financial
Joseph A. Robinson Officer and Director
Principal Financial Officer
/s/ Ike K. Eikelberner
- ------------------------------- Vice-President and Corporate 6/19/97
Ike K. Eikelberner Controller
Principal Accounting Officer
/s/ James O. Futterknecht, Jr.* Director
- -------------------------------
James O. Futterknecht, Jr.
/s/ John G. Keane* Director
- -------------------------------
John G. Keane
/s/ James K. Sommer* Director
- -------------------------------
James K. Sommer
/s/ Ralph R. Whitney, Jr.* Director
- -------------------------------
Ralph R. Whitney, Jr.
- ------------------------------- Director
Richard A. Place
* By: ___________________________________
Joseph A. Robinson as Attorney-in-Fact.
INDEX TO EXHIBITS FILED
TO POST-EFFECTIVE AMENDMENT NO. 1 REGISTRATION STATEMENT
ON FORM S-8 OF EXCEL INDUSTRIES, INC.
Sequentially
Exhibit Numbered
No. Description Page
------- ------------- -----------
5 Opinion re: Legality
23.2 Consent of Sommer & Barnard
(included in Exhibit 5)
Sommer & Barnard, PC
Attorneys At Law
4000 Bank One Tower
Indianapolis, Indiana 46204
Phone: 317/630-4000
Fax: 317/236-9802
May 12, 1997
Excel Industries, Inc.
1120 North Main Street
Elkhart, Indiana 46515-3118
Ladies and Gentlemen:
You have requested our opinion in connection with the Form S-8
Registration Statement filed with the Securities and Exchange
Commission by Excel Industries, Inc. ("Excel"), with respect to the
Common Shares, no par value, of Excel (the "Shares") to be issued
pursuant to the Excel Industries, Inc. 1997 Long-Term Incentive
Plan (the "Plan").
We have examined such records and documents, and have made
such investigations of law and fact as we have deemed necessary in
the circumstances. Based on that examination and investigation, it
is our opinion that, when issued in accordance with the Plan and in
compliance with the Securities Act of 1933, as amended, and
applicable state Blue Sky laws, the Shares will have been duly
authorized, validly issued, fully paid and not subject to further
assessment.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Sincerely,
SOMMER & BARNARD, PC
S&B/pas
