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As filed with the Securities and Exchange Commission on March 2, 1999 -
Registration No. 33-55499.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DONNELLY CORPORATION
(Exact name of registrant as specified in its charter)
Michigan 38-0493110
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
49 West Third Street, Holland, Michigan 49423-2813
(Address of Principal Executive Offices) (Zip Code)
Donnelly Corporation Non-Employee Director Stock Option Plan
(Full Title of the Plan)
Maryam Komejan, 49 West Third Street, Holland, Michigan 49423-2813
(Name and address of agent for service)
Copies of Communications to:
William J. Lawrence III
Varnum, Riddering, Schmidt & Howlett LLP
333 Bridge Street, N.W., P.O. Box 352
Grand Rapids, Michigan 49501-0352
(616) 336-6000
CALCULATION OF REGISTRATION FEE
<TABLE>
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Proposed Proposed
Title of Maximum Maximum
Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share(2) Offering Price Registration Fee (2)
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<S> <C> <C> <C> <C>
Class A Common Stock
($.10 Par Value) 125,000 Shares(1) $12.54 $1,567,500 $463
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</TABLE>
(1) Represents the number of shares of Common Stock authorized for issuance
under the Donnelly Corporation Non-Employee Director Stock Option Plan
(the "Plan"). A total of 62,500 shares of Common Stock were registered
pursuant to this Registration Statement on or about September 16, 1994.
This Registration Statement also covers such indeterminable additional
number of shares as may be issuable under the Plan by reason of
adjustments in the number of shares covered thereby as described in the
Prospectus.
(2) For the purpose of computing the registration fee only, the price shown
is based upon the price of $12.54 per share, the average of the high
and low sales prices for the Common Stock of Donnelly Corporation on
the New York Stock Exchange on March 1, 1999, in accordance with Rule
457(h). The Amount of Registration Fee includes a fee of $231.50 to
register the additional 62,500 shares of Common Stock being registered
pursuant to this Amendment No. 1, in addition to the fee previously
paid.
Pursuant to Rule 416(a) of the General Rules and Regulations under the
Securities Act of 1933, this Registration Statement shall cover such additional
securities as may be offered or issued to prevent dilution resulting from stock
splits, stock dividends or similar transactions.
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<PAGE>
The Prospectus information appearing on pages 1-6 of this Form S-8
Registration Statement as originally filed with the SEC on or about September
16, 1994, is hereby deleted. This Amendment No. 1 amends and restates the
Registration Statement.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company's Annual Report on Form 10-K for the year ended July 3, 1993,
which has been filed by the Company with the Commission (File No. 1-9716), is
incorporated herein by reference. All other reports filed by the Company
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") since the end of the fiscal year covered by the
foregoing Annual Report on Form 10-K are incorporated herein by reference. All
other reports or documents filed by the Company pursuant to the requirements of
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date
of this Registration Statement and prior to the termination of the offering of
the securities offered hereby shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such reports or
documents. Any statements contained in a document incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any
subsequently filed document which also is incorporated herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
The consolidated financial statements of Donnelly Corporation and
subsidiaries as of July 3, 1993, and for each of the years in the three-year
period ended July 3, 1993, have been incorporated in this Registration Statement
by reference in reliance upon the report, also incorporated in this Registration
Statement by reference, of BDO Seidman LLP, independent certified public
accountants, and upon the authority of said firm as experts in accounting and
auditing.
The description of the Company's Class A Common Stock, the class of
securities offered pursuant to this Registration Statement, is contained in the
Company's Registration Statement filed pursuant to Section 12 of the Exchange
Act, and is incorporated herein by reference, including any subsequent
amendments or reports filed for the purpose of updating that description.
Item 4. Description of Securities
The class of securities to be offered is 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 Articles of Incorporation of the Company provide that its directors and
officers are to be indemnified as of right to the fullest extent permitted under
the Michigan Business Corporation Act ("MBCA"). Under the MBCA, directors,
officers, employees or agents are entitled to indemnification against expenses
(including attorneys' fees) whenever they successfully defend legal proceedings
brought against them by reason of the fact that they hold such a position with
the corporation. In addition, with respect to actions not brought by or in the
right of the corporation, indemnification is permitted under the MBCA for
expenses (including attorneys' fees), judgments, fines, penalties and reasonable
settlement if it is determined that the person seeking indemnification acted in
a good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation or its shareholders and, with
respect to criminal proceedings, he or she had no reasonable cause to believe
that his or her conduct was unlawful. With respect to actions brought by or in
the right of the corporation, indemnification is permitted under the MBCA for
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<PAGE>
expenses (including attorneys' fees) and reasonable settlements, if it is
determined that the person seeking indemnification acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation or its shareholders; provided, indemnification is
not permitted if the person is found liable to the corporation unless the court
in which the action or suit was brought has determined that indemnification is
fair and reasonable in view of all the circumstances of the case.
The MBCA specifically provides that it is not the exclusive source of
indemnity. As a result, the Company adopted individual indemnification
agreements with its directors. Approved by the Company's shareholders, the
indemnification agreements provide a contractually enforceable right, upon which
written notice, for prompt indemnification, except that indemnification is not
required where: (i) indemnification is provided under an insurance policy,
except for amounts in excess of insurance coverage; (ii) a director is entitled
to indemnification by reason of having given notice of any circumstance which
might give rise to a claim under any policy of insurance, the terms of which
have expired prior to the effective date of the indemnity agreement; (iii)
indemnification is provided by the Company outside of the agreement; (iv) the
claim for indemnity is based upon or attributable to any transaction involving:
intentional misconduct or a knowing violation of law, a violation of Section
551(1) or any successor provision of the MBCA, or from which the director
derived an improper personal benefit; (v) the claim involved a violation of
Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto, or
similar provisions of state law; or (vi) indemnification by the Company is
otherwise prohibited by applicable law. In the case of a derivative or other
action by or in the right of the Company where a director is found liable,
indemnity is predicted on the determination that indemnification is nevertheless
appropriate, by: majority vote of a committee of two or more disinterested
directors appointed by the Board of Directors; independent legal counsel in a
written opinion; or the court in which the claim is litigated, whichever the
indemnitee chooses. The protection provided by the indemnification agreements is
broader than that under the MBCA, where indemnification in such circumstances is
available only where specifically authorized by the court where the claim is
litigated.
In addition to the available indemnification, the Company's Articles of
Incorporation, as amended, limit the personal liability of the members of its
Board of Directors for monetary damages with respect to claims by the Company or
its shareholders resulting from certain negligent acts or omissions.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Reference is made to the Exhibit Index which appears on page S-5.
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:
(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, represents a fundamental change in the information set
forth in the registration statement;
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(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 (1)(i) and
(1) (ii) do not apply if the registration statement is on Form S-3,
Form S-8, or Form F-3, and the information required to be included in
a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or
Section 15 (d) of 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 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 (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 bonafide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions 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 a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or 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.
S-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Holland, State of Michigan, on the 26TH day of
February, 1999.
DONNELLY CORPORATION
By: /s/ Maryam Komejan
Maryam Komejan
Senior Vice President and Corporate Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on February 26TH, 1999, by the
following persons in the capacities indicated.
By: ______________________________ By: /s/ B. Patrick Donnelly, III*
John A. Borden, Director B. Patrick Donnelly, III, Director
By: /s/ R. Eugene Goodson* By: /s/ Joan E. Donnelly*
R. Eugene Goodson, Director Joan E. Donnelly, Director
By: /s/ Donald R. Uhlmann* By: /s/ Thomas E. Leonard*
Donald R. Uhlmann, Director Thomas E. Leonard, Director
By: /s/ J. Dwane Baumgardner* By: /s/ Gerald T. McNeive*
J. Dwane Baumgardner, Director Gerald T. McNeive, Jr., Director
By: /s/ Arnold F. Brookstone* By: /s/ Scott E. Reed
Arnold F. Brookstone, Director Scott E. Reed, Senior Vice President
and Chief Financial Officer
By: /s/ Rudolph B. Pruden*
Rudolph B. Pruden, Director
By: /s/ Ronald L. Winowiecki
Ronald L. Winowiecki, Corporate
Controller and European Finance
Director (Principal Accounting
Officer)
*By: /s/ Maryam Komejan
Maryam Komejan
Attorney-in-Fact
::ODMA\PCDOCS\GRR\242627\1
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EXHIBIT INDEX
The following exhibits are filed as a part of the Registration Statement:
Exhibit 4 Donnelly Corporation Non-Employee Director Stock Option Plan, as
amended by Amendment No. 1, which Amendment No. 1 is incorporated
by reference to Appendix C of the Registrant's Proxy Statement
for the October 16, 1998, Annual Meeting of Shareholders
Exhibit 5 Opinion of Varnum, Riddering, Schmidt & Howlett LLP
Exhibit 23(a) Consent of BDO Seidman LLP
Exhibit 23(b) Consent of Varnum, Riddering, Schmidt & Howlett LLP (included in
Exhibit 5)
Exhibit 24 Power of Attorney - included on page S-4 hereof
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EXHIBIT 5
March 1, 1999
Donnelly Corporation
49 West Third Street
Holland, Michigan 49423-2813
Re: Registration Statement on Form S-8 Relating to the
Donnelly Corporation Non-Employee Director Stock Option Plan
Gentlemen:
With respect to the Registration Statement on Form S-8 (the "Registration
Statement"), filed by Donnelly Corporation, a Michigan corporation (the
"Company"), with the Securities and Exchange Commission for the purpose of
registering under the Securities Act of 1933, as amended, 125,000 shares of the
Company's Class A common stock, par value $0.10 per share, for issuance pursuant
to the Company's Non-Employee Director Stock Option Plan (the "Plan"), we have
examined such documents and questions of law we consider necessary or
appropriate for the purpose of giving this opinion. On the basis of such
evaluation, we advise you that in our opinion the 125,000 shares covered by the
Registration Statement, upon the exercise of stock options, at the prices
described in the Registration Statement, but not less than the par value
thereof, and upon delivery of such shares and payment therefor in accordance
with the terms stated in the Plan and the Registration Statement, will be duly
and legally authorized, issued and outstanding and will be fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or under the rules and regulations of
the Securities and Exchange Commission relating thereto.
Sincerely,
VARNUM, RIDDERING, SCHMIDT & HOWLETTLLP
/s/ Varnum, Riddering, Schmidt & Howlett LLP
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Donnelly Corporation
Holland, Michigan
We hereby consent to the incorporation by reference in this Registration
Statement of Donnelly Corporation for its Non Employee Director's Stock Option
Plan, of our reports dated August 6, 1998, relating to the combined consolidated
financial statements and schedules of Donnelly Corporation appearing in the
Company's Annual Report on Form 10-K for the year ended June 27, 1998.
We also consent to the reference to us as experts in this Registration
Statement.
/s/ BDO SEIDMAN, LLP
Grand Rapids, Michigan
February 28, 1999
