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As filed with the Securities and Exchange Commission on December 17, 1999
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
LESCO, INC.
(Exact name of registrant as specified in its charter)
Ohio 34-0904517
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
20005 Lake Road
Rocky River, Ohio 44116
(Address of Principal Executive Offices) (Zip Code)
Stock Option Agreement between LESCO, Inc. and Dana L. Wilson
Stock Option Agreement between LESCO, Inc. and Frans H. Jager
Stock Option Agreement between LESCO, Inc. and Wayne W. Murawski
Stock Option Agreement between LESCO, Inc. and Ware H. Grove
Stock Option Agreement between LESCO, Inc. and Kenneth S. Sekley
Stock Option and Restricted Share Agreements between LESCO, Inc. and
Charles J. McGonigle
Stock Option and Restricted Share Agreements between LESCO, Inc. and
R. Breck Denny
Stock Option and Restricted Share Agreements between LESCO, Inc. and
James W. McDevitt
(Full title of plan)
William A. Foley, President and Chief Executive Officer
20005 Lake Road, Rocky River, Ohio 44116
(Name and address of agent for service)
(440) 333-9250
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title Of Amount Proposed Proposed
Securities To To Be Maximum Offering Maximum Aggregate Amount Of
Be Registered Registered Price Per Share Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Shares,
Without par value 118,107(1)(2) $23.00(3) $2,716,461(3) $717.15
=======================================================================================================================
</TABLE>
(1) Aggregate number of Common Shares for which options and restricted share
awards may be issued pursuant to the aforementioned Option and Restricted
Share Agreements.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate number of additional
Common Shares which may be offered or sold pursuant to the aforementioned
Option and Restricted Share Agreements as a result of adjustment under the
terms thereof for certain potentially dilutive transactions.
(3) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(h) based on the highest exercise price under the
Option Agreements.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Registrant, previously filed with the
Securities and Exchange Commission (the "Commission"), are incorporated herein
by reference and made a part hereof:
1. The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998.
2. The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1999, June 30, 1999 and September 30,
1999.
3. Description of Registrant's Common Shares contained in Item 1
of Registrant's Post-Effective Amendment No. 1 to its
Registration Statement on Form 8-A (Registration No. 0-13147)
for the Common Shares filed under Section 12 of the Exchange
Act.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
Registration Statement, 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, shall be deemed to be incorporated by
reference in this Registration Statement and to be 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
The Ohio Revised Code (the "Ohio Code") authorizes Ohio corporations to
indemnify officers and directors from liability if the officer or director acted
in good faith and in a manner reasonably believed by the officer or director to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal actions, if the officer or director had no reason to believe his
action was unlawful. In the case of an action by or on behalf of a corporation,
indemnification may not be made (i) if the person seeking indemnification is
adjudged liable for negligence or misconduct, unless the court in which such
action was brought determines such person is fairly and reasonably entitled to
indemnification, or (ii) if liability asserted against such person concerns
certain unlawful distributions. The indemnification provisions of the Ohio Code
require indemnification if a director or officer has been successful on the
merits or otherwise in defense of any action, suit or proceeding that he was a
party to by reason of the fact that he is or was a director or officer of the
corporation. The indemnification authorized under Ohio law is
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not exclusive and is in addition to any other rights granted to officers and
directors under the articles of incorporation or code of regulations of the
corporation or any agreement between officers and directors and the corporation.
A corporation may purchase and maintain insurance or furnish similar protection
on behalf of any officer or director against any liability asserted against him
and incurred by him in his capacity, or arising out of the status, as an officer
or director, whether or not the corporation would have the power to indemnify
him against such liability under the Ohio Code.
The Registrant's Code of Regulations provides for the indemnification
of directors and officers of the Registrant to the maximum extent permitted by
Ohio law as authorized by the Board of Directors of the Registrant and for the
advancement of expenses incurred in connection with the defense of any action,
suit or proceeding that he was a party to by reason of the fact that he is or
was a director or officer of the Registrant upon the receipt of an undertaking
to repay such amount unless it is ultimately determined that the director or
officer is entitled to indemnification. The Registrant maintains a directors'
and officers' insurance policy which insures the directors and officers of the
Registrant from claims arising out of an alleged wrongful act by such persons in
their respective capacities as directors and officers of the Registrant, subject
to certain exceptions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibit 4.1 Specimen certificate for the Registrant's Common
Shares (incorporated by reference to Exhibit 4(a) to
Registration Statement on Form S-1 (File No. 2-90900))
Exhibit 4.2 Amended Articles of Incorporation of the Registrant
(incorporated by reference to Exhibit 3(a) to Annual
Report on Form 10-K for the year ending November 30,
1987 (File No. 0-13147)).
Exhibit 4.3 Amended Code of Regulations of the Registrant
(incorporated by reference to Exhibit 3(b) to Annual
Report on Form 10-K for the year ending November 30,
1987 (File No. 0-13147))
Exhibit 5 Opinion of Baker & Hostetler LLP as to the legality of
the Common Shares being registered
Exhibit 23.1 Consent of Ernst & Young LLP
Exhibit 23.2 Consent of Baker & Hostetler LLP (included in Opinion
filed as Exhibit 5 hereto)
Exhibit 24 Power of Attorney (included at page II-4 of this
Registration Statement)
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 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;
(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
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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.
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 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.
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 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 City of Rocky River, State of Ohio, as of December 17, 1999.
LESCO, Inc.
By: /s/ William A. Foley
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William A. Foley, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints William A. Foley or Patricia W. Pribisko, or any one of
them, his true and lawful attorneys-in-fact and agents, 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 post-effective amendments to this
Registration Statement, and to file the same with all exhibits hereto, and other
documents in connection herewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
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 attorneys-in-fact and agents, or any of them, or their or his
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.
/s/ William A. Foley 12/7/99
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William A. Foley Date
President and Chief Executive Officer,
Chairman of the Board of Directors
(Principal Executive Officer)
/s/ R. Breck Denny 12/14/99
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R. Breck Denny Date
Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ Ronald Best 12/7/99
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Ronald Best, Director Date
/s/ Drexel Bunch 12/7/99
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Drexel Bunch, Director Date
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/s/ Robert F. Burkhardt 12/7/99
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Robert F. Burkhardt, Director Date
/s/ Edward F. Crawford 12/8/99
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Edward F. Crawford, Director Date
/s/ J. Martin Erbaugh 12/7/99
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J. Martin Erbaugh, Director Date
/s/ Michael F FitzGibbon 12/9/99
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Michael J. FitzGibbon, Director Date
/s/ Michael E. Gibbons 12/7/99
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Michael E. Gibbons, Director Date
/s/ Lee C. Howley 12/7/99
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Lee C. Howley, Director Date
/s/ Robert B. Stein, Jr. 12/7/99
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Robert B. Stein, Jr., Director Date
/s/ David L. Swift 12/6/99
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David L. Swift, Director Date
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EXHIBIT INDEX
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Exhibit Description of Exhibit
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4.1 Specimen Share Certificate Incorporated by
reference from Exhibit
4(a) to Registration
Statement on Form S-1
(File No. 2-90900)
4.2 Amended Articles of Incorporation Incorporated by
reference from Exhibit
3(a) to Annual Report
on Form 10-K for the
year ending
November 30, 1987
(File No. 0-13147)
4.3 Amended Code of Regulations Incorporated by
reference from Exhibit
3(b) to Annual Report
on Form 10-K for the
year ending November
30, 1987 (File No.
0-13147)
5 Opinion of Baker & Hostetler LLP Contained herein.
23.1 Consent of Ernst & Young LLP Contained herein.
23.2 Consent of Baker & Hostetler LLP Contained in Exhibit 5.
24 Power of Attorney Included at page II-4.
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Exhibit 5
BAKER & HOSTETLER LLP
3200 National City Center
1900 E. 9th Street
Cleveland, Ohio 44114-3485
December 17, 1999
LESCO, Inc.
20005 Lake Road
Rocky River, Ohio 44116
Re: LESCO, Inc. Award Agreements
Ladies and Gentlemen:
We have acted as counsel to LESCO, Inc., an Ohio corporation
(the "Company"), in connection with the Company's Registration Statement on Form
S-8 (the "Registration Statement") being filed under the Securities Act of 1933,
as amended (the "Act"), relating to the offering of up to 118,107 Common Shares,
without par value (the "Common Shares"), of the Company pursuant to those
certain Stock Option and Restricted Share Agreements between LESCO, Inc. and
Dana L. Wilson, Frans H. Jager, Wayne W. Murawski, Ware H. Grove, Kenneth S.
Sekley, Charles J. McGonigle, R. Breck Denny and James W. McDevitt, respectively
(each, a "Recipient") (collectively, the "Award Agreements").
We have examined the Company's Amended Articles of
Incorporation, the Company's Amended Code of Regulations, the form of Award
Agreements to be entered into by the Company and each Recipient, the documents
giving rise to each Recipient's right to options or restricted shares and such
other documents, records and matters of law as we have deemed necessary for
purposes of this opinion. In rendering this opinion, we have assumed the
genuineness, without independent investigation, of all signatures on all
documents examined by us, the conformity to original documents of all documents
submitted to us as certified or facsimile copies, and the authenticity of all
such documents.
Based solely thereon, we are of the opinion that the Common
Shares available for issuance under the Award Agreements, when issued, delivered
and paid for pursuant to the Award Agreements substantially in the form reviewed
by us, will be duly authorized, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement and to the reference to our firm in Item 8 of Part
II to the Registration Statement. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission.
Very truly yours,
/s/ Baker & Hostetler LLP
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Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 dated December 17, 1999) pertaining to the Stock Option Agreement between
LESCO, Inc. and Dana L. Wilson, Stock Option Agreement between LESCO, Inc. and
Frans H. Jager, Stock Option Agreement between LESCO, Inc. and Wayne W.
Murawski, Stock Option Agreement between LESCO, Inc. and Ware H. Grove, Stock
Option Agreement between LESCO, Inc. and Kenneth S. Sekley, Stock Option and
Restricted Share Agreements between LESCO, Inc. and Charles J. McGonigle, Stock
Option and Restricted Share Agreements between LESCO, Inc. and R. Breck Denny,
and Stock Option and Restricted Share Agreements between LESCO, Inc. and James
W. McDevitt, of our report dated February 5, 1999, with respect to the
consolidated financial statements of LESCO, Inc. and of our report dated March
25, 1999 with respect to the schedule of LESCO, Inc., both included in its
Annual Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Cleveland, Ohio
December 16, 1999
