<PAGE> 1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-----------
DEFIANCE, INC.
(Exact name of Registrant as specified in its charter)
Delaware 34-1526359
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
-----------
1111 Chester Avenue, Suite 750
Cleveland, Ohio 44114-3516
(Address of Principal Executive Offices) (Zip Code)
----------
Defiance, Inc. 1998 Stock Option Plan
(Full title of the plan)
-----------
Jerry A.Cooper Copy to:
President and Chief Executive Officer Glenn E. Morrical
1111 Chester Avenue, Suite 750 Arter & Hadden LLP
Cleveland, Ohio 44114-3516 925 Euclid Avenue, Suite 1100
(Name and address of agent for service) Cleveland, Ohio 44115
216-696-1100
216-861-6300
(Telephone number, including area code,
of agent for service)
----------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered (1)(2) Offering Price per Aggregate Offering Registration Fee (3)
share (3) Price (3)
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, 500,000 $6.875 $3,437,500 $955.63
Par Value $.05
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
<FN>
(1) Aggregate number of shares of Common Stock available for grants of awards
pursuant to the Defiance, Inc. 1998 Stock Option Plan (the "Plan").
(2) Pursuant to Rule 416 under the Securities Act of 1933 (the "Securities
Act"), additional shares of the Common Stock of the Company issued or which
become issuable in order to prevent dilution resulting from any future
stock split, stock dividend or similar transaction are also being
registered hereunder.
(3) Based upon the average of the high and low sales prices of the Common Stock
on the Nasdaq Stock Market's National Market on November 2, 1998;
determined in accordance with Rules 457(c) and (h) solely for the purpose
of determining the amount of the registration fee.
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and reports filed by Defiance, Inc. (the "Company") with
the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended June
30, 1998 (File No. 000-14044), including the exhibits thereto.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998 (File No. 000-14044); and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed December 5, 1985
(file No. 000-14044), including any amendment or report filed for the
purpose of updating such description.
All documents filed after the date of the filing of this Registration Statement
by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, 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 herein by reference 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.
Section 145 of the Delaware General Corporation Law (the "DGCL") permits a
corporation, under specified circumstances, to indemnify its directors,
officers, employees or agents against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by them in connection with any action, suit or proceeding brought by third
parties by reason of the fact that they were or are directors, officers,
employees or agents of the corporation, if such directors, officers, employees
or agents 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, had no reasonable cause to believe their
conduct was unlawful. In a derivative action (i.e., one by or in the right of
the corporation), indemnification may be made only for expenses actually and
reasonably incurred by directors, officers, employees or agents in connection
with the defense or settlement of an action or suit, and only with respect to a
matter as to which they shall have acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made if such persons shall
have been adjudged liable to the corporation, unless and only to the extent that
the court in which the action or suit was brought shall determine upon
application that the defendant directors, officers, employees or agents are
fairly and reasonably entitled to indemnity for such expenses, despite such
adjudication of liability.
Subsection (b)(7) of Section 102 of the DGCL empowers a corporation in its
original certificate of incorporation or an amendment thereto validly approved
by stockholders to eliminate or limit the personal liability of a director to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision cannot eliminate or limit the
liability of a director for (i) breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or knowing violation of law, (iii) payment
of a dividend or approval of a stock repurchase which was illegal under Section
174 of the DGCL, or (iv) any transaction from which the director derived an
improper personal benefit. Article XII of the Company's Certificate of
Incorporation provides for limitation of liability of directors as follows:
<PAGE> 3
ARTICLE XII A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director except for liability (i) for any
breach of the director's duty of loyalty to the Corporation 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 General Corporation Law of the State of
Delaware, or (iv) for any transaction from which the director derived
an improper personal benefit. If the General Corporation Law of the
State of Delaware is amended hereafter to authorize the further
elimination or limitation of the liability of directors, then the
liability of a director of the Corporation shall be eliminated or
limited to the fullest extent authorized by the General Corporation Law
of the State of Delaware, as so amended. Any repeal or modification of
this Article shall not adversely affect any right or protection of a
director of the Corporation existing hereunder with respect to any act
or omission occurring prior to or at the time of such repeal or
modification.
Section 11.1 of the Company's By-Laws provides for indemnification of directors,
officers and others as follows:
SECTION 11.1 The Corporation shall indemnify, in the manner and to the
full extent permitted by law, any person (or the estate of any person)
who was or is a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding, whether or
not by or in the right of the Corporation, and whether civil, criminal,
administrative, investigative or otherwise, by reason of the fact that
such person is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. Where required
by law, the indemnification provided for herein shall be made only as
authorized in the specific case upon a determination, in the manner
provided by law, that indemnification of the director, officer,
employee or agent is proper under such circumstances. The Corporation
may, to the full extent permitted by law, purchase and maintain
insurance on behalf of any such person against any liability which may
be asserted against him. To the full extent permitted by law, the
indemnification provided herein shall include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement, and,
in the manner provided by law, any such expenses may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding. The indemnification provided herein shall not be deemed to
limit the right of the Corporation to indemnify any other person for
any such expenses to the full extent permitted by law, nor shall it be
deemed exclusive of any other rights to which any person seeking
indemnification from the Corporation may be entitled under any
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office.
Section 3(c) of the Plan provides for indemnification of the Board of
Directors of the Company or the members of the committee appointed by the Board
to administer the Plan as follows:
INDEMNIFICATION No member of the Board or the Committee shall be liable
for any action taken or determination made in good faith. The members
of the Board and the Committee shall be indemnified by the Company for
any acts or omissions in connection with the Plan to the full extent
permitted by Delaware and Federal law.
The Company has entered into indemnification agreements with each of its
directors that provide for indemnification of each director against certain
liabilities to the fullest extent permitted by applicable law, including,
without limitation, the full extent of indemnification by agreement permitted by
Section 145(f) of the DGCL. The Company has also purchased directors and
officers liability insurance that provides coverage for the indemnification of
the Company's directors and officers against certain liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 The Company's Certificate of Incorporation (filed as Exhibit
3-f to the Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1996, File No. 000-14044), incorporated
herein by reference.
<PAGE> 4
4.2 The Company's Bylaws (filed as Exhibit 3-g to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30,
1996, File No. 000-14044), incorporated herein by reference.
4.3 Defiance, Inc. 1998 Stock Option Plan (filed as Exhibit A to
the Company's Schedule 14A, filed on September 17, 1998, File
No. 000-14044), incorporated herein by reference.
5.1 Opinion of Arter & Hadden LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Arter & Hadden LLP (included in Exhibit 5.1)
24 Powers of Attorney
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 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
clauses (i) and (ii) do not apply if the information required to
be included in a post-effective amendment by those clauses is
contained in periodic reports filed by the Registrant pursuant to
Section 13 or 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 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 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.
C. 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.
<PAGE> 5
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 Cleveland, State of Ohio, on this 3rd day of
November, 1998.
DEFIANCE, INC.
By: /s/ Michael J. Meier
Vice President--Finance, Chief Financial Officer,
Secretary and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by or on behalf of the following persons in the
capacities indicated and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Titles Date
<S> <C> <C>
/s/ Jerry A. Cooper* President and Chief Executive November 3, 1998
Jerry A. Cooper Officer (principal executive officer)
/s/ Michael J. Meier Vice President-Finance, Chief November 3, 1998
Michael J. Meier Financial Officer, Secretary and
Treasurer (principal financial
officer)
/s/ James L. Treece Chief Accounting Officer and November 3, 1998
James L. Treece Assistant Treasurer (principal
accounting officer)
/s/ Thomas H. Roulston II* Chairman of the Board of Directors November 3, 1998
Thomas H. Roulston II
/s/ George H. Lewis III* Director November 3, 1998
George H. Lewis III
/s/ Richard W. Lock* Director November 3, 1998
Richard W. Lock
/s/ John D. Ong* Director November 3, 1998
John D. Ong
/s/ James E. Heighway* Director November 3, 1998
James E. Heighway
/s/ Scott D. Roulston* Director November 3, 1998
Scott D. Roulston
</TABLE>
*Michael J. Meier, the undersigned attorney-in-fact, by signing his name below,
does hereby sign this registration statement on behalf of the directors and
officers of Defiance, Inc. indicated above by asterisk (constituting a majority
of the directors) pursuant to a power of attorney executed by such persons and
filed with the Securities and Exchange Commission contemporaneously herewith.
By: /s/ Michael J. Meier
Michael J. Meier, as attorney-in-fact
<PAGE> 6
EXHIBIT INDEX
- ----------------- ------------------------------------------------------------
Exhibit Number Exhibit
- ----------------- ------------------------------------------------------------
4.1 The Company's Certificate of Incorporation (filed as Exhibit
3-f to the Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1996, File No. 000-14044), incorporated
herein by reference.
4.2 The Company's Bylaws (filed as Exhibit 3-g to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30,
1996, File No. 000-14044), incorporated herein by reference.
4.3 Defiance, Inc. 1998 Stock Option Plan (filed as Exhibit A to
the Company's Schedule 14A, filed on September 17, 1998, File
No. 000-14044), incorporated herein by reference.
5.1 Opinion of Arter & Hadden LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Arter & Hadden LLP (included in Exhibit 5.1)
24 Powers of Attorney
<PAGE> 1
EXHIBIT 5.1
ARTER & HADDEN LLP
925 Euclid Avenue, Suite 1100
Cleveland, Ohio 44115
Tel: 216-696-1100
Fax: 216-696-2645
November 3, 1998
Defiance, Inc.
1111 Chester Avenue, Suite 750
Cleveland, Ohio 44114-3516
Gentlemen:
As counsel for Defiance, Inc., a Delaware corporation (the "Company"),
we are familiar with the Registration Statement on Form S-8, referred to herein
as the "Registration Statement", to be filed on or about November 3, 1998 by the
Company with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended, with respect to 500,000 shares of the
Company's Common Stock, par value $.05 per share (the "Shares"), issuable
pursuant to the Defiance, Inc. 1998 Stock Option Plan (the "Plan").
In connection with the foregoing, we have examined (a) the Certificate
of Incorporation and the Bylaws of the Company, each as amended to date, (b) the
Plan, and (c) such records of the corporate proceedings of the Company and such
other documents as we deemed necessary to render this opinion.
Based upon such examination, we are of the opinion that the Shares have
been duly authorized and when issued and delivered upon receipt of the
consideration provided for under the Plan and in the manner contemplated by the
Plan will be validly issued, fully paid, and nonassessable.
We do not purport to be admitted to practice in the State of Delaware
or to be experts in the law thereof, but we have examined such matters of
Delaware law as we considered necessary to render the legal opinions above.
We bring to your attention that our legal opinions are an expression of
professional judgment and not a guarantee of a result. This opinion is rendered
as of the date hereof, and we undertake no, and hereby disclaim any, obligation
to advise you of any changes or new developments that might affect any matters
or opinions set forth herein.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to references to our firm included in or made a part
of the Registration Statement. In giving this consent, we do not admit that we
come within the category of person whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Securities and Exchange
Commission thereunder. This opinion may not be relied upon by any person other
than the addressee identified above.
Very truly yours,
/s/ ARTER & HADDEN LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the Defiance, Inc. 1998 Stock Option Plan for the
registration of 500,000 shares of its common stock of our report dated August 5,
1998 with respect to the consolidated financial statements of Defiance, Inc.
included in its Annual Report on Form 10-K for the year ended June 30, 1998,
filed with the Securities and Exchange Commission.
Ernst & Young LLP
Cleveland, Ohio
November 2, 1998
<PAGE> 1
EXHIBIT 24
DEFIANCE, INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS: That each person whose signature appears below
has made, constituted and appointed, and by this instrument does make,
constitute and appoint Michael J. Meier, Glenn E. Morrical and Robert B. Tomaro
and each of them, his or her true and lawful attorney, with full power of
substitution and resubstitution, to affix for him or her and in his or her name,
place and stead, as attorney-in-fact, his or her signature as director
(including as a member of any committee of the board of directors) or officer,
or both, of Defiance, Inc., a Delaware corporation (the "Company"), to
Registration Statements on Form S-8 or any other form that may be used from time
to time, with respect to the issuance and sale of its Common Stock and other
securities pursuant to the Defiance, Inc. 1998 Stock Option Plan and to any and
all amendments, post-effective amendments and exhibits to such Registration
Statements, and to any and all applications and other documents pertaining
thereto, giving and granting to each such attorney-in-fact full power and
authority to do and perform every act and thing whatsoever necessary to be done
in the premises, as fully as they might or could do if personally present, and
hereby ratifying and confirming all that each of such attorney-in-fact or any
such substitute shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed this 26th day of
October, 1998.
/s/ Jerry A. Cooper /s/ James E. Heighway
- -------------------------------- --------------------------------
Jerry A. Cooper James E. Heighway
/s/ George H. Lewis III /s/ Richard W. Lock
- -------------------------------- --------------------------------
George H. Lewis III Richard W. Lock
/s/ John D. Ong /s/ Scott D. Roulston
- -------------------------------- --------------------------------
John D.Ong Scott D. Roulston
/s/ Thomas H. Roulston II
- --------------------------------
Thomas H. Roulston II
