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As filed with the Securities and Exchange Commission on June 22, 1999 -
Registration No. 333-67967
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 1998 Employee 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
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CALCULATION OF REGISTRATION FEE
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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) 850,000 Shares(1) $15.1875 $12,909,375 $3,810
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</TABLE>
(1) Represents the number of shares of Common Stock authorized for issuance
under the Donnelly Corporation 1998 Employee Stock Option Plan (the
"Plan"). 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) Filing fee previously paid when the Form S-8 (Registration No. 333-67967)
was filed on November 25, 1998.
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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The purpose of this Amendment No. 1. is to amend Exhibit 4 (the 1998
Employee Stock Option Plan) by incorporating Exhibit 4 from the Donnelly
Corporation Proxy Statement dated September 15, 1998, for the Donnelly
Corporation Annual Meeting of Shareholders held October 16, 1998.
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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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.
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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 Amendment NO. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Holland, State of Michigan, on the
16th day of June, 1999.
DONNELLY CORPORATION
By: /s/ J. Dwane Baumgardner
J. Dwane Baumgardner
President
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration State ment has been signed below on June 16, 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* By: /s/ Ronald L. Winowiecki
Rudolph B. Pruden, Director Ronald L. Winowiecki, Corporate
Controller and European Finance
Director (Principal Accounting
Officer)
*By: /s/ J. Dwane Baumgardner
J. Dwane Baumgardner
Attorney-in-Fact
::ODMA\PCDOCS\GRR\296178\1
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EXHIBIT INDEX
The following exhibits are filed as a part of the Registration Statement:
Exhibit 4 Donnelly Corporation 1998 Employee Stock Option Plan, which
is incorporated by reference to Appendix A of the
Registrant's Proxy Statement for the October 16, 1998,
Annual Meeting of Shareholders
Exhibit 5 Opinion of Varnum, Riddering, Schmidt & Howlett LLP
(previously filed)
Exhibit 23(a) Consent of BDO Seidman LLP (previously filed)
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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