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As filed with the Securities and Exchange Commission on December 3, 1996.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
PEERLESS MFG. CO.
(Exact Name of Registrant as Specified in Its Charter)
TEXAS 75-0724417
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2819 WALNUT HILL LANE
DALLAS, TEXAS 75229
(214) 357-6181
(Address, including Zip Code, and Telephone Number, including Area
Code, of Registrant's Principal Executive Offices)
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PEERLESS MFG. CO. 1995 STOCK OPTION AND RESTRICTED STOCK PLAN
(Full Title of Plan)
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SHERRILL STONE COPY TO:
PRESIDENT AND CHIEF EXECUTIVE OFFICER R. CLAYTON MULFORD, ESQ.
PEERLESS MFG. CO. HUGHES & LUCE, L.L.P.
2819 WALNUT HILL LANE 1717 MAIN STREET, SUITE 2800
DALLAS, TEXAS 75229 DALLAS, TEXAS 75201
(214) 357-6181
(Name, Address, and Telephone Number,
including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
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TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
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<S> <C> <C> <C> <C>
Common Stock, $1.00
par value 100,000 $12.75 $1,275,000 $386.36
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</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
registration statement also covers an indeterminate additional amount of
shares of Common Stock to be offered or sold pursuant to the antidilution
provisions of the Peerless Mfg. Co. 1995 Stock Option and Restricted Stock
Plan.
(2) Estimated solely for the purpose of calculating the registration fee on the
basis of the average of the high and low price paid per share of Common
Stock, as reported on the Nasdaq National Market on November 27, 1996, in
accordance with Rule 457(h) promulgated under the Securities Act of 1933,
as amended.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by Peerless Mfg. Co. (the "Registrant")
are incorporated by reference in this Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended June 30,
1996, which contains the Registrant's audited financial statements for the
Registrant's last completed fiscal year (the "1996 Form 10-K").
(b) Quarterly Report on Form 10-Q for the quarter ended September
30, 1996.
(c) All reports filed by the Registrant pursuant to Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the 1996 Form 10-K.
(d) The description of the Registrant's common stock, par value
$1.00 per share (the "Common Stock"), contained in the Registrant's
Registration Statement on Form 8-A, dated October 29, 1970, (File Number
05214), including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this Registration Statement which indicates that
all of the shares of Common Stock offered have been sold or which deregisters
all of such shares 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 (such documents, and the documents enumerated
above, "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's charter and bylaws provide that the Registrant may
indemnify a person who was, is or is threatened to be made a named defendant or
respondent in a proceeding because the person is or was an officer or director
of the Registrant if it is determined that the person: (a) conducted himself
in good faith; (b) reasonably believed: (i) in the case of conduct in his
official capacity as a director or officer of the corporation, that his conduct
was in the corporation's best interest; and (ii) in all other cases, that his
conduct was at least not opposed to the corporation's best interests; and (c)
in the case of any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful. However, no indemnification shall be made with respect
to any claim, issue or manner as to which such officer or director has been
adjudged liable for negligence or misconduct in the performance of his or her
duty to the Registrant and only to the extent that the court in which such suit
or action was brought shall determine upon application that such person is
fairly and reasonably entitled to indemnity. A director or officer may be
indemnified by the Registrant against judgments, penalties (including excise
and similar taxes), fines, settlements and reasonable expenses (including
attorneys' fees) actually incurred by the director or officer in connection
with any such proceeding; but if the proceeding was brought by or in behalf of
the Registrant, the indemnification is limited to reasonable expenses actually
incurred by the person in connection with the proceeding.
The Registrant's charter and bylaws require indemnification of an
officer or director against reasonable expenses (including attorneys' fees)
incurred by him in connection with a proceeding in which he is a party because
he is a director if he has been wholly successful, on the merits or otherwise,
in the defense of such proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 The Company's Articles of Incorporation, as amended to
date (filed as Exhibit 1 to the Company's Registration
Statement on Form S-1, Registration No. 2-35767) and
amended by the Company's December 12, 1990 Form 8
amending Exhibit 3(a) to the Company's Annual Report on
Form 10-K dated June 30, 1990, and incorporated
herein by reference.
4.2 The Company's Bylaws, as amended to date (filed as
Exhibit 3(b) to the Company's Annual Report on Form
10-K, dated June 30, 1993, and incorporated herein by
reference).
5.1* Opinion of Hughes & Luce, L.L.P.
23.1* Consent of Grant Thornton, LLP
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23.2* Consent of Hughes & Luce, L.L.P. (contained in
Exhibit 5.1)
24.1* Power of Attorney (contained in signature page)
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*Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant 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 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 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 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to 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
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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 by the Registrant for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described in
Item 6, or otherwise, the Registrant has been advised that in the opinion of
the 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 by the Registrant 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 Dallas, State of Texas, on November 21, 1996.
PEERLESS MFG. CO.
By: /s/ Sherrill Stone
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Sherrill Stone
President and Chief Executive Officer
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POWER OF ATTORNEY
We, the undersigned officers and directors of Peerless Mfg. Co.,
hereby severally constitute and appoint Sherrill Stone and Kent J. Van Houten,
and each of them singly, our true and lawful attorneys with full power to them,
and each of them singly, to sign for us and in our names in the capacities
indicated below, the Registration Statement on Form S-8 filed herewith and any
and all amendments (including post-effective amendments) to the Registration
Statement, and generally to do all things in our name and behalf in the
capacities indicated below to enable Peerless Mfg. Co. to comply with the
provisions of the Securities Act of 1933, as amended, and all requirements to
the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
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 dates indicated:
<TABLE>
Signature Title Date
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<S> <C> <C>
/s/ Sherrill Stone Chairman of the Board, President and November 21, 1996
------------------------------ Chief Executive Officer
Sherrill Stone (Principal Executive Officer)
/s/ D.D. Battershell Director November 21, 1996
------------------------------
D. D. Battershell
/s/ Bernard S. Lee Director November 21, 1996
------------------------------
Bernard S. Lee
/s/ J. V. Mariner Director November 21, 1996
------------------------------
J. V. Mariner
/s/ Donald A. Sillers, Jr. Director November 21, 1996
------------------------------
Donald A. Sillers, Jr.
/s/ Kent J. Van Houten Chief Financial Officer and November 21, 1996
------------------------------ Secretary-Treasurer
Kent J. Van Houten (Principal Financial Officer and
Principal Accounting Officer)
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
4.1 The Company's Articles of Incorporation, as amended to
date (filed as Exhibit 1 to the Company's Registration
Statement on Form S-1, Registration No. 2-35767) and
amended by the Company's December 12, 1990 Form 8
amending Exhibit 3(a) to the Company's Annual Report on
Form 10-K dated June 30, 1990, and incorporated
herein by reference.
4.2 The Company's Bylaws, as amended to date (filed as
Exhibit 3(b) to the Company's Annual Report on Form
10-K, dated June 30, 1993, and incorporated herein by
reference).
5.1* Opinion of Hughes & Luce, L.L.P.
23.1* Consent of Grant Thornton, LLP
23.2* Consent of Hughes & Luce, L.L.P. (contained in
Exhibit 5.1)
24.1* Power of Attorney (contained on signature page)
</TABLE>
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*Filed herewith
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EXHIBIT 5.1
OPINION OF HUGHES & LUCE, L.L.P.
[Hughes & Luce, L.L.P. Letterhead]
December 3, 1996
Peerless Mfg. Co.
2819 Walnut Hill Lane
Dallas, Texas 75229
Ladies and Gentlemen:
Re: Registration Statement on Form S-8 for the PEERLESS MFG. CO.
1995 STOCK OPTION AND RESTRICTED STOCK PLAN
Ladies and Gentlemen:
We render this opinion as counsel to Peerless Mfg. Co., a Texas
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, of 100,000 shares (the "Shares") of the
Company's common stock, $1.00 par value per share, issuable under the PEERLESS
MFG. CO. 1995 STOCK OPTION AND RESTRICTED STOCK PLAN (the "Plan"). The Shares
are being registered pursuant to a registration statement on Form S-8 to be
filed with the Securities and Exchange Commission on or about December 3, 1996
(the "Registration Statement").
In connection with this opinion, we have examined such documents and
records of the Company and such statutes, regulations and other instruments and
certificates as we have deemed necessary or advisable for the purposes of this
opinion. We have assumed that all signatures on all documents presented to us
are genuine, that all documents submitted to us as originals are accurate and
complete and that all documents submitted to us as copies are true and correct
copies of the originals thereof. We have also relied upon such certificates of
public officials, corporate agents and officers of the Company and such other
certifications with respect to the accuracy of material factual matters
contained therein which were not independently established.
Based on the foregoing, we are of the opinion that the Shares will be,
if and when issued and paid for pursuant to the Plan, validly issued, fully
paid and nonassessable, assuming the Company maintains an adequate number of
authorized but unissued shares of common stock available for such issuance, and
further assuming that the consideration received by the Company for the Shares
exceeds the par value thereof.
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Peerless Mfg. Co.
December 3, 1996
Page Two
We consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
included in this 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 promulgated thereunder.
Very truly yours,
HUGHES & LUCE, L.L.P.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our reports dated September 13, 1996 accompanying the
consolidated financial statements and schedule of Peerless Mfg. Co. appearing
in the annual report on Form 10-K for the year ended June 30, 1996, which are
incorporated by reference in this Registration Statement. We consent to the
incorporation by reference in the Registration Statement of the aforementioned
reports.
GRANT THORNTON LLP
Dallas, Texas
November 25, 1996
