<PAGE> 1
As filed with the Securities and Exchange Commission on September 15, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
ASSOCIATED MATERIALS INCORPORATED
(Exact name of registrant as specified in its charter)
2200 ROSS AVENUE, SUITE 4100 EAST
DALLAS, TEXAS 75201
(214) 220-4600
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
DELAWARE 75-1872487
(State of incorporation) (I.R.S. Employer Identification Number)
ASSOCIATED MATERIALS INCORPORATED
AMENDED AND RESTATED 1994 STOCK INCENTIVE PLAN
(Full title of the plan)
ROBERT L. WINSPEAR
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
ASSOCIATED MATERIALS INCORPORATED
2200 ROSS AVENUE, SUITE 4100 EAST
DALLAS, TX 75201
(214) 220-4600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH A COPY TO:
JAMES E. O'BANNON, ESQ.
JONES, DAY, REAVIS & POGUE
2300 TRAMMELL CROW CENTER
2001 ROSS AVENUE
DALLAS, TEXAS 75201
(214) 220-3939
------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
to be Price per Offering Registration
Title of Securities to be Registered Registered (1) Share Price Fee (2)
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.0025 per share . . . . . 737,600 $8.18 $6,035,184 $1,781
- ----------------------------------------------------------------------------------------------------------------------------
(1) Represents shares issuable in connection with the exercise of options previously granted under the Associated
Materials Incorporated Amended and Restated 1994 Stock Incentive Plan (the "Plan") and shares issuable in
connection with the exercise of options available for grant under the Plan. Pursuant to Rule 416, there are also
registered hereunder such indeterminate number of additional shares as may become subject to awards under the Plan
as a result of the antidilution provisions contained therein.
(2) The registration fee has been computed in accordance with Rule 457(h). Pursuant to Rule 457(h)(3), the
registration fee has been calculated on the basis of a single fee with respect to shares issuable in connection
with the exercise of options previously granted under the Plan and shares issuable in connection with the exercise
of options available for grant under the Plan.
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
The information called for by Part I of this Registration Statement on
Form S-8 (the "Registration Statement") is included in the description of the
Associated Materials Incorporated Amended and Restated 1994 Stock Incentive
Plan ("Plan") to be delivered to persons eligible to participate in the Plan.
Pursuant to the Note to Part I of Form S-8, this information is not being filed
with or included in this Registration Statement.
I-1
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Associated Materials Incorporated
(the "Company") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated by reference in this Registration Statement: (i)
Company's Annual Report on Form 10-K for the year ended December 31, 1997;STF
(ii) the Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1998; (iii) the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998; and (iv) the description of the Common Stock contained in
the Company's Registration Statement on Form 8-A/A, filed by the Company with
the Commission.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of the
offering made hereby, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part of this Registration Statement from the
date of the filing of such reports.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein 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 subsequently filed document which also is
or is deemed to be incorporated by reference herein 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 (securities to be offered are registered under Section
12 of the Exchange Act).
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of Incorporation (the "Certificate") of the
Company provides that to the full extent permitted by the General Corporation
Law of the State of Delaware ("DGCL") or any other applicable laws as presently
or hereafter in effect, no director of the Company shall be personally liable
to the Company or its stockholders for or with respect to any acts or omissions
in the performance of his or her duties as a director of the Company. The DGCL
would not permit limitation of liability of any such director (i) for breach of
such director's duty of loyalty to the Company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) in respect of certain unlawful dividend
payments or stock redemptions or repurchases or (iv) for any transaction for
which such person derived an improper personal benefit. The Certificate and
the Company's Restated Bylaws ("Bylaws") provide that each person who is or was
a director or officer of the Company or each such person who is or was serving
at the request of the Board of Directors or an officer of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise (including the heirs, executors and
administrators of such person), shall be indemnified by the Company to the full
extent permitted by the DGCL or any other applicable laws as presently or
hereafter in effect.
II-1
<PAGE> 4
The Company has entered into certain agreements (the "Indemnification
Agreements") with each of its directors and executive officers (each an
"Indemnitee") designed to give effect to the foregoing provisions of the
Certificate and Bylaws. The Indemnification Agreements are intended to provide
certain additional assurances against the possibility of uninsured liability
primarily because the Indemnification Agreements (i) specify the extent to
which the Indemnitees shall be entitled to receive benefits not expressly set
forth in the DGCL and (ii) include a number of procedural provisions designed
to provide certainty in administration of the rights to indemnity. Pursuant to
the Indemnification Agreements, among other things, an Indemnitee will be
entitled to indemnification as provided by the DGCL and, in general, subject to
limitations (if any) imposed by applicable law, to indemnification for any
amount which the Indemnitee is or becomes legally obligated to pay relating to
failure to act or neglect or breach of duty, including any actual or alleged
error, misstatement or misleading statement, which such person commits,
suffers, permits or acquiesces in while acting in the Indemnitee's position
with the Company. The right to receive payments in excess of those expressly
provided for in the DGCL is not required under the Indemnification Agreements
in connection with any claim against the Indemnitee (i) for which payment is
actually made to the Indemnitee under a valid and collectible insurance policy,
(ii) which results in a final, nonappealable order for the Indemnitee to pay a
fine or similar governmental imposition which the Company is prohibited by
applicable law from paying, or (iii) based upon or attributable to the
Indemnitee gaining in fact a personal profit to which he was not legally
entitled, including without limitation profits made from the purchase and sale
by the Indemnitee of equity securities of the Company which are not recoverable
by the Company pursuant to Section 16(b) of the Exchange Act and profits
arising from transactions in publicly traded securities of the Company which
were effected by the Indemnitee in violation of Section 10(b) of the Exchange
Act or Rule 10b-5 promulgated thereunder.
The Company has purchased and maintains insurance on behalf of any
person who is or was a director or officer against any loss arising from any
claim asserted against him and incurred by him in any such capacity, subject to
certain exclusions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Restated Certificate of Incorporation, as amended, of
Associated Materials Incorporated (the "Company")
(incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-8, Commission File No.
333-63435)
4.2 Restated Bylaws of the Company (incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement on Form
S-1, Commission File No. 33-84110)
5.1 Opinion of Jones, Day, Reavis & Pogue
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit
5.1)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney
99.1 Associated Materials Incorporated Amended and Restated 1994
Stock Incentive Plan (incorporated by reference to Exhibit
10.1 to the Company's Quarterly Report on Form 10-Q for the
period ended June 30, 1997)
II-2
<PAGE> 5
ITEM 9. UNDERTAKINGS
A. The Company 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, as amended (the "Securities
Act"), unless the information required to be included in such
post-effective amendment is contained in periodic reports filed by
the Company pursuant to Section 13 or 15(d) of the Exchange Act and
incorporated herein by reference;
(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, unless the
information required to be included in such post-effective
amendment is contained in periodic reports filed by the Company
pursuant to Section 13 or 15(d) of the Exchange Act and
incorporated herein by reference. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high and 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% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this 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 Company pursuant to Section
13 or Section 15(d) of the Exchange Act 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; and
(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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this 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.
II-3
<PAGE> 6
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 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 Securities Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE> 7
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 September 15, 1998.
ASSOCIATED MATERIALS INCORPORATED
By: /s/ ROBERT L. WINSPEAR
------------------------------
Robert L. Winspear
Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on September 15, 1998.
Signatures Title
---------- -----
WILLIAM W. WINSPEAR* Chairman of the Board, President and Chief
-------------------------- Executive Officer
William W. Winspear (Principal Executive Officer)
/s/ ROBERT L. WINSPEAR Vice President, Chief Financial Officer,
-------------------------- Treasurer and Secretary
Robert L. Winspear (Principal Financial and Accounting Officer)
RICHARD I. GALLAND* Director
--------------------------
Richard I. Galland
JOHN T. GRAY* Director
--------------------------
John T. Gray
DONALD L. KAUFMAN* Director
--------------------------
Donald L. Kaufman
JAMES F. LEARY* Director
--------------------------
James F. Leary
ALAN B. LERNER* Director
--------------------------
Alan B. Lerner
A.A. MEITZ* Director
--------------------------
A.A. Meitz
* Robert L. Winspear, by signing his name hereto, does sign and execute this
Registration Statement pursuant to the Powers of Attorney executed on
behalf of the above-named officers and directors and filed herewith.
/s/ ROBERT L. WINSPEAR
--------------------------------------
Robert L. Winspear
Attorney-in-Fact
II-5
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Exhibit
- ----------- -------
<S> <C>
4.1 Restated Certificate of Incorporation, as amended, of Associated Materials Incorporated
(incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on Form S-8,
Commission File No. 333-63435)
4.2 Restated Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-1, Commission File No. 33-84110)
5.1 Opinion of Jones, Day, Reavis & Pogue
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney
99.1 Associated Materials Incorporated Amended and Restated 1994 Stock Incentive Plan (incorporated
by reference to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the period
ended June 30, 1997)
</TABLE>
<PAGE> 1
Exhibit 5.1
-----------
[Letterhead of Jones, Day, Reavis & Pogue]
September 15, 1998
Associated Materials Incorporated
2200 Ross Avenue, Suite 4100 East
Dallas, Texas 75201
Re: Registration Statement on Form S-8 relating to 737,600
shares of Common Stock, par value $.0025 per share, of
Associated Materials Incorporated
Ladies and Gentlemen:
We are acting as counsel to Associated Materials Incorporated, a
Delaware corporation (the "Company"), in connection with the registration of
737,600 shares (the "Shares") of common stock, par value $.0025 per share, of
the Company ("Common Stock") under the Securities Act of 1933, as amended,
pursuant to the Company's Registration Statement on Form S-8 (the "Registration
Statement").
We have examined such documents, records, and matters of law as we
have deemed necessary for purposes of this opinion. Based on such examination
and on the assumptions set forth below, we are of the opinion that, when issued
and delivered in accordance with the provisions of the Associated Materials
Incorporated Amended and Restated 1994 Stock Incentive Plan (the "Plan")
against payment of the consideration therefor as provided in the Plan and
having a value not less than the par value thereof, the Shares will be duly
authorized, validly issued, fully paid and nonassessable.
In rendering the foregoing opinion, we have relied as to certain
factual matters upon certificates of officers of the Company and public
officials, and we have not independently checked or verified the accuracy of
the statements contained therein. In addition, our examination of matters of
law has been limited to the General Corporation Law of the State of Delaware
and the federal laws of the United States of America, in each case as in effect
on the date hereof.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement with respect to the Common Stock.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
Jones, Day, Reavis & Pogue
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Associated Materials Incorporated Amended
and Restated 1994 Stock Incentive Plan of our report dated January 29, 1998,
with respect to the consolidated financial statements of Associated Materials
Incorporated included in its Annual Report (Form 10-K) for the year ended
December 31, 1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Dallas, Texas
September 14, 1998
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints William W. Winspear, Robert L. Winspear and James E.
O'Bannon the true and lawful attorney-in-fact, with full power of substitution
and resubstitution, for him and in his name, place and stead, to sign on his
behalf, as a director or officer, or both, as the case may be, of Associated
Materials Incorporated, a Delaware corporation (the "Corporation"), one or more
Registration Statements on Form S-8 or any other appropriate form (the
"Registration Statement"), under the Securities Act of 1933, as amended, with
respect to the shares of Common Stock, par value $.0025 per share, of the
Corporation issuable pursuant to the Associated Materials Incorporated Amended
and Restated 1994 Stock Incentive Plan and to sign any or all amendments and
any or all post-effective amendments to the Registration Statement, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney or attorneys-in-fact, each of them with or without the others, 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 or she might or could do in person, hereby ratifying and
confirming all that said attorney or attorneys-in-fact or any of them or their
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Dated: August 26, 1998
/s/ WILLIAM W. WINSPEAR /s/ JAMES F. LEARY
-------------------------------------- ---------------------------------
William W. Winspear James F. Leary
/s/ ALAN B. LERNER /s/ RICHARD I. GALLAND
--------------------------------- ----------------------------------
Alan B. Lerner Richard I. Galland
/s/ JOHN T. GRAY /s/ A. A. MEITZ
-------------------------------------- ---------------------------------
John T. Gray A. A. Meitz
/s/ DONALD L. KAUFMAN /s/ ROBERT L. WINSPEAR
-------------------------------------- ---------------------------------
Donald L. Kaufman Robert L. Winspear
