As filed with the Securities and Exchange Commission on March 20, 1998
Registration No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
MILLER BUILDING SYSTEMS, INC.
(Name of Registrant as Specified in its Charter)
Delaware 36-3228778
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
58120 County Road 3 South
Elkhart, Indiana 46517
(219) 295-1214
(Address of Principal Executive Offices)
MILLER BUILDING SYSTEMS, INC.
1997 STOCK OPTION PLAN
(Full Title of the Plan)
Edward C. Craig
President and Chief Executive Officer
Miller Building Systems, Inc.
58120 County Road 3 South
Elkhart, Indiana 46517
Telephone: (219) 295-1214
Fax: (219) 295-2232
(Name, Address and Telephone Number, including area code, of Agent for Service)
Please address a copy of all communications to:
Steven Schwartz
Much Shelist Freed Denenberg Ament Bell & Rubenstein, P.C.
200 N. LaSalle Street, Suite 2100
Chicago, Illinois 60601
Telephone: (312) 346-3100
Fax: (312) 621-1750
CALCULATION OF REGISTRATION FEE
Title of each class Amount Proposed Maximum Proposed Maximum Amount of
of Securities to be to be Offering Price Aggregate Offering Registration
Registered Registered Per Share (1) Price (1) Fee
Common Stock
($0.01 par value) 500,000 shs $9.9375 $4,968,750 $1,465.78
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the average of the high and low sale
prices as reported by The Nasdaq National Market on February 20, 1998.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Items 1 and 2. The information specified in Item 1 and Item 2 of Part I of Form
S-8 is omitted from this filing in accordance with Rule 428 under the Securities
Act of 1933, as amended, (the "Securities Act") and the introductory note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, heretofore filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are hereby incorporated
by reference, except as superseded or modified herein:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended June 28, 1997 filed with the Commission on September 22, 1997.
(b) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended September 27, 1997 filed with the Commission on
November 12, 1997.
(c) The description of the common stock set forth in the Company's
Registration Statement on Form 8-A (File No. 0-14651) filed with the
Commission on May 21, 1986, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed with the Commission by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein 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 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
Certain legal matters in connection with the validity of the shares of
UniCommon Stock offered hereby will be passed upon for the Company by Much
Shelist Freed Denenberg Ament Bell & Rubenstein, P.C., Chicago, Illinois, which
serves as the Company's general counsel. Jeffrey C. Rubenstein, a principal
of Much Shelist Freed Denenberg Ament Bell & Rubenstein, P.C. has served on
the Board of Directors of the Company since April 1983 and, as of December 31,
1997, is the beneficial holder of 32,166 shares of the Company's Common Stock.
Item 6. Indemnification of Directors and Officers
The Company is a Delaware corporation. Reference is made to Section 102(b)
(7) of the Delaware General Corporation Law (the "DGCL"), which enables a
corporation in its original certificate of incorporation or an amendment thereto
to eliminate or limit the personal liability of a director for violations of the
director's fiduciary duty, except (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) pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payments of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which a director derived an
improper personal benefit.
Reference is also made to Section 145 of the DGCL, which provides that a
corporation may indemnify any person, including a director or officer, who was
or is a party or who is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of such corporation),
by reason of the fact that such person is or was a director, officer, employee
or agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. The indemnity may
include expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided such director, officer, employee or
agent acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the corporation's best interest and, for criminal proceedings,
had no reasonable cause to believe that his conduct was unlawful. A Delaware
corporation may indemnify any officer or director in any action by or in the
right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or a
present or former director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him
against the expenses that such person actually and reasonably incurred.
The Company's Certificate of Incorporation limits the personal liability of
directors to the fullest extent permitted by Delaware law. In addition, the
Company's Certificate of Incorporation and By-laws provide that the Company
shall, to the fullest extent permitted by Delaware law, indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative by reason of the fact that he or she is or was a director,
officer, employee or agent of the Company or is or was serving at the request of
the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any and all
expenses, liabilities or other matters referred to or covered by Delaware law,
which were reasonably incurred by such person. This indemnification is in
addition to any other rights of indemnification to which such persons may be
entitled under the Company's Certificate of Incorporation, By-laws, any
agreement or vote of shareholders or disinterested directors or otherwise.
The Company's Certificate of Incorporation and By-laws also permit it to
secure insurance on behalf of any director, officer, employee or other agent for
any liability arising out of his or her actions in such capacity, regardless of
whether Delaware law, the Certificate of Incorporation or By-laws would permit
indemnification.
The description of Delaware law is not intended to be complete. The
description of the Company s Certificate of Incorporation and its By-laws is not
intended to be complete and is respectively qualified in its entirety by such
Certificate and By-laws.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibits filed herewith pursuant to this Item 8 are listed in the
Exhibit Index at page E-1.
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or in 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
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 the undertakings set forth in paragraphs
(A)(1)(i) and (A)(1)(ii) above do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by registrant pursuant to Section 13 of Section
15(d) of the Exchange Act of 1934 that are incorporated by reference in
this 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 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.
(B) The undersigned registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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
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 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
Securities 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 Securities
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
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 Elkhart, Indiana, on March 20, 1998.
MILLER BUILDING SYSTEMS, INC.
By: /Edward C. Craig
Edward C. Craig
President
and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the following
capacities on March 19, 1998.
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Edward C. Craig and Thomas J. Martini,
and each of them, his attorney-in-fact, each with the power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this registration
statement, and to sign any registration statement for the same offering covered
by this registration statement that is to be effective upon filing pursuant to
Rule 462(b) promulgated under the Securities Act of 1933, and all post-effective
amendments thereto, and to file the same, with all exhibits thereto and all
documents in connection therewith, 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 and
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 such attorneys-in-fact and agents or any of them, or his or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Signatures Title
/Edward C. Craig President, Chief Executive Officer
Edward C. Craig and Director
(Principal Executive Officer)
/Thomas J. Martini Secretary and Treasurer
Thomas J. Martini (Principal Financial and
Accounting Officer)
/David E. Downen
David E. Downen Director
/Steven F. Graver
Steven F. Graver Director
[signatures continued next page]
S-1
/William P. Hall
William P. Hall Director
/Myron C. Noble
Myron C. Noble Director
/David H. Padden
David H. Padden Director
/Jeffrey C. Rubenstein
Jeffrey C. Rubenstein Director
S-2
LIST OF EXHIBITS
Exhibit
Number Exhibit Title
4.1 Specimen Common Stock Certificate (incorporated by reference from
Annual Report on Form 10-K for the fiscal year ended June 30, 1989).
4.2 Miller Building Systems, Inc. 1997 Stock Option Plan (incorporated
by reference from Proxy Statement filed September 22, 1997 for the
1997 Annual Meeting of Shareholders).
5.1 Opinion of Much Shelist Freed Denenberg Ament Bell & Rubenstein,
P.C. regarding legality.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Much Shelist Freed Denenberg Ament & Rubenstein, P.C.
(included as part of Exhibit 5.1).
24.1 Power of Attorney (included in page S-1 of the Registration
Statement).
E-1
Exhibit 5.1
March 20, 1998
Miller Building Systems, Inc.
58120 County Road 3 South
Elkhart, Indiana 46517
Re: Miller Building Systems, Inc.
1997 Stock Option Plan
Form S-8 Registration Statement
Ladies and Gentlemen:
We have acted as councel to Miller Building Systems, Inc., a Delaware
corporation (the "Company"), and have reviewed the Company's Registration
Statement on Form S-8 covering 500,000 shares of the Company's authorized but
unissued common stock. $0.01 par value (the "Common Stock"), issuable pursuant
to stock options granted pursuant to the Company's 1997 Stock Option Plan
(the "Plan"). It is our opinion that shares of Common Stock issuable under the
Plan, when issued upon exercise of and in accordance with the terms of stock
options outstanding or to be granted under the Plan, will be validly issued,
fully paid and non-assessable.
We hereby consent to the use of this opinion in the above referenced
Registration Statement.
Respectfully submitted,
/Much Shelist Freed Denenberg Ament Bell
& Rubenstein, P.C.
Much Shelist Freed Denenberg Ament Bell
& Rubenstein, P.C.
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Miller Building Systems, Inc. on Form S-8 of our report dated July 28, 1997, on
our audits of the consolidated financial statements and financial statement
schedule of Miller Building Systems, Inc. and subsidiaries as of June 28, 1997
and June 29, 1996, and for the years ended June 28, 1997, June 29, 1996 and
July 1, 1995 which report is included in Miller Building Systems, Inc. Annual
Report on Form 10-K for the year ended June 28, 1997.
/Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
South Bend, Indiana
March 20, 1998
