As filed with the Securities and Exchange Commission on August __, 1998
REGISTRATION NO. 333-________
========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------------
SCOTSMAN INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-3635892
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
820 FOREST EDGE DRIVE
VERNON HILLS, ILLINOIS 60061
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
KYSOR INDUSTRIAL CORPORATION 401(k) PLAN
(FULL TITLE OF THE PLAN)
DONALD D. HOLMES
VICE PRESIDENT-FINANCE
SCOTSMAN INDUSTRIES, INC.
820 FOREST EDGE DRIVE
VERNON HILLS, ILLINOIS 60061
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(847) 215-4447
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
WITH A COPY TO:
SHIRLEY M. LUKITSCH
SCHIFF HARDIN & WAITE
7200 SEARS TOWER
CHICAGO, ILLINOIS 60606
(312) 258-5602
------------------------------<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Amount Proposed maximum Proposed maximum Amount of
Title of Securities to be to be offering price per aggregate offering registration
Registered registered share (1) (2) price (1) (2) fee (2)
------------------------- ---------- ------------------ ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.10
per share (including associated
Common Stock Purchase Rights) 100,000 $26.5625 $2,656,250 $783.60
Interests in the Plan (3) (3) (3) (3)
(1) Based upon the number of shares that would be purchased by the trustee of the trust established in connection
with the Kysor Industrial Corporation 401(k) Plan (the "Plan") on behalf of the Plan during the two-year
period beginning on the effective date of this Registration Statement if the estimated employee contributions
during such period were invested in such Common Stock at the estimated offering price per share in footnote
2, below.
(2) Estimated on the basis of $26.5625 per share, the average of the high and low sales prices as reported on
the New York Stock Exchange on August 13, 1998, pursuant to Rule 457(h) and 457(c).
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also
covers an indeterminate amount of interests to be offered or sold pursuant to the Plan described herein for
which no separate fee is required.
/TABLE
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by Scotsman
Industries, Inc. (the "Registrant") and the Kysor Industrial
Corporation 401(k) Plan (the "Plan") are incorporated herein by
reference:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 28, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended April 5, 1998;
(c) The Registrant 's Current Report on Form 8-K, dated
February 10, 1998; and
(d) The description of the Registrant's Common Stock, par
value $.10 per share, and the Common Stock Purchase
Rights contained in the Registrant's Registration
Statement on Form 10, filed with the Securities and
Exchange Commission (the "Commission") on February 14,
1989, as amended by Amendment No. 1 on Form 8, filed
with the Commission on March 14, 1989, Amendment No. 2
on Form 8, filed with the Commission on March 23, 1989,
Amendment No. 3 on Form 8, filed with the Commission on
March 27, 1989, Amendment No. 4 on Form 10/A, filed
with the Commission on January 27, 1994, and Amendment
No. 5 on Form 10/A, filed with the Commission on
February 17, 1998.
All documents subsequently filed by the Registrant and/or
the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-
effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining
unsold, shall be deemed incorporated by reference herein 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.<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the General Corporation Law of the State of Delaware
(the "Delaware Law"), directors and officers as well as other
employees and individuals may be indemnified against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation--a "derivative
action") if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the company,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar
standard of care is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including
attorney's fees) incurred in connection with the defense or settlement
of such an action, and the Delaware Law requires court approval before
there can be any indemnification where the person seeking
indemnification has been found liable to the company.
Article Ninth of the Restated Certificate of Incorporation
of the Registrant ("Article Ninth") provides that each person who was
or is made a party to, or is involved in, any action, suit or
proceeding by reason of the fact that he or she is or was a director,
officer or employee of the Registrant (or was serving at the request
of the Registrant as a director, officer, employee or agent for
another entity) will be indemnified and held harmless by the
Registrant, to the full extent authorized by the Delaware Law, as
currently in effect (or, to the extent indemnification is broadened,
as it may be amended) against all expense, liability or loss
(including attorneys' fees, judgments, fines, Employee Retirement
Income Security Act excise taxes or penalties and amounts to be paid
in settlement) reasonably incurred by such person in connection
therewith. Article Ninth provides that the rights conferred thereby
are contract rights and will include the right to be paid by the
Registrant for the expenses incurred in defending the proceedings
specified above, in advance of their final disposition, except that,
if the Delaware Law so requires, such payment will only be made upon
delivery to the Registrant by the indemnified party of an undertaking
to repay all amounts so advanced if it is ultimately determined that
the person receiving such payments is not entitled to be indemnified
under such provision or otherwise. Article Ninth provides that the
Registrant may, by action of its board of directors, provide
indemnification to its agents with the same scope and effect as the
foregoing indemnification of directors, officers and employees.
Article Ninth provides that persons indemnified thereunder
may bring suit against the Registrant to recover unpaid amounts
claimed thereunder, and that if such suit is successful, the expense
of bringing such a suit will be reimbursed by the Registrant. Article
Ninth further provides that while it is a defense to such a suit that
the person claiming indemnification has not met the applicable
2<PAGE>
standards of conduct making indemnification permissible under the
Delaware Law, the burden of proving the defense will be on the
Registrant and neither the failure of the Registrant's board of
directors to have made a determination that indemnification is proper
nor an actual determination that the claimant has not met the
applicable standard of conduct will be a defense to the action or
create a presumption that the claimant has not met the applicable
standard of conduct.
Article Ninth provides that the rights to indemnification
and the payment of expenses incurred in defending a proceeding in
advance of its final disposition conferred therein will not be
exclusive of any other right which any person may have or acquire
under any statute, provision of the Registrant's Restated Certificate
of Incorporation or By-Laws, or otherwise. Finally, Article Ninth
provides that the Registrant may maintain insurance, at its expense,
to protect itself and any of its directors, officers, employees or
agents against any expense, liability or loss, whether or not the
Registrant would have the power to indemnify such person against such
expense, liability or loss under the Delaware Law.
The Registrant has insurance which insures directors and
officers of the Registrant for acts committed in their capacity as
directors and officers or claims made against them by reason of their
status as directors or officers, except for and to the extent the
Registrant has indemnified the directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits filed herewith or incorporated by reference
herein are set forth in the Exhibit Index filed as part of this
registration statement on page 8 hereof. The Registrant hereby
undertakes to submit the Plan, as amended, in a timely manner to the
Internal Revenue Service for a determination that the Plan is
qualified under Section 401 of the Internal Revenue Code and to make
all changes required by the Internal Revenue Service in order to so
qualify the Plan.
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;
3<PAGE>
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8, 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 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 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 BONA FIDE offering
thereof.
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
4<PAGE>
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.
5<PAGE>
SIGNATURES
THE REGISTRANT. 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 Village of Vernon Hills, State of Illinois, on
August 13, 1998.
SCOTSMAN INDUSTRIES, INC.
(Registrant)
By:/s/ Richard C. Osborne
--------------------------------
Richard C. Osborne
Chairman of the Board,
President and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below appoints Richard
C. Osborne and Donald D. Holmes, or either of them, as such person's
true and lawful attorneys-in-fact to execute in the name of each such
person, and to file, any amendments to this registration statement
that either of such attorneys-in-fact will deem necessary or desirable
to enable the to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and
Exchange Commission with respect thereto, in connection with the
registration of the shares of Common Stock (and the Common Stock
Purchase Rights associated therewith) and the interests in the Plan
which are the subject of this Registration Statement, which amendments
may make such changes in such registration statement as either of the
above-named attorneys-in-fact deems appropriate, and to comply with
the undertakings of the Registrant made in connection with this
registration statement; and each of the undersigned hereby ratifies
all that either of said attorneys will do or cause to be done by
virtue hereof.
6<PAGE>
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- -----
<S> <C> <C>
/s/ Richard C. Osborne Chairman of the Board, August 13, 1998
-------------------------- President, Chief Executive
Richard C. Osborne Officer and Director
(Principal Executive Officer)
/s/ Donald D. Holmes Vice President -- Finance August 13, 1998
-------------------------- (Principal Financial and
Donald D. Holmes Accounting Officer)
/s/ Donald C. Clark Director August 13, 1998
---------------------------
Donald C. Clark
/s/ Frank W. Considine Director August 13, 1998
---------------------------
Frank W. Considine
/s/ George D. Kennedy Director August 13, 1998
---------------------------
George D. Kennedy
/s/ James J. O'Connor Director August 13, 1998
----------------------------
James J. O'Connor
/s/ Robert G. Rettig Director August 13, 1998
-----------------------------
Robert G. Rettig
/s/ Richard L. Thomas Director August 13, 1998
-----------------------------
Richard L. Thomas
</TABLE>
7<PAGE>
THE PLAN. Pursuant to the requirements of the Securities
Act of 1933, the Plan has duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized,
in the Village of Vernon Hills, State of Illinois, on August 13, 1998.
KYSOR INDUSTRIAL CORPORATION
401 (k) PLAN
By:/s/ Richard M. Holden
-------------------------------
Richard M. Holden
Member of the Administrative
and Investment Committee
8<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION* PAGE NO.
------- ----------- --------
4.1 Restated Certificate of Incorporation of the
Registrant (incorporated herein by reference
to the Registrant's Form 10-K for the fiscal
year ended December 31, 1989).
4.2 By-Laws of the Registrant, as amended
(incorporated herein by reference to the
Registrant's Form 8-K, dated June 21, 1991).
4.3 Rights Agreement, dated as of April 14, 1989,
between Scotsman Industries, Inc. and Harris
Trust & Savings Bank (incorporated herein by
reference to the Registrant's Form 8-K, dated
April 25, 1989), as amended by Amendment No.
1 thereto, dated as of January 11, 1994
(incorporated herein by reference to Scotsman
Industries, Inc. Amendment No. 4 to General
Form for Registration of Securities on Form
10/A, as filed with the Commission on January
27, 1994), Amendment No. 2 thereto, dated as
of February 10, 1998 (incorporated herein by
reference to the Registrant's Form 8-K, dated
February 10, 1998) and Amendment No. 3
thereto, dated as of February 11, 1998
(incorporated herein by reference to the
Registrant's Form 8-K, dated February 10,
1998),
5 Opinion of Schiff Hardin & Waite.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Schiff Hardin & Waite (contained
in their opinion filed as Exhibit 5).
24 Powers of Attorney (contained on the
signature pages hereto).
-------------------------
* Unless otherwise indicated, all documents incorporated by
reference to prior filings have been filed under Commission File No.
1-10182.
9
EXHIBIT 5
---------
Shirley M. Lukitsch
(312) 258-5602
August 20, 1998
Scotsman Industries, Inc.
820 Forest Edge Drive
Vernon Hills, Illinois 60061
RE: REGISTRATION ON FORM S-8 OF 100,000 SHARES OF COMMON STOCK
ISSUABLE UNDER THE KYSOR INDUSTRIAL CORPORATION 401(K) PLAN
Ladies and Gentlemen:
We have acted as counsel to Scotsman Industries, Inc., a
Delaware corporation (the "Company"), in connection with the Company's
filing of a Registration Statement on Form S-8 (the "Registration
Statement") covering 100,000 shares of common stock, par value $0.10
per share, of the Company, and the related common stock purchase
rights (including such rights, the "Shares"), to be offered and sold
pursuant to the terms of the Kysor Industrial Corporation 401(k) Plan
(the "Plan"). The Registration Statement also covers an indeterminate
amount of interests to be offered and sold under the Plan.
In this connection, we have considered such questions of law
and have examined such documents as we have deemed necessary to enable
us to render the opinions contained herein. Based on the foregoing, it
is our opinion that those Shares that are originally issued shares,
when issued pursuant to the terms of the Plan, will be legally issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
SCHIFF HARDIN & WAITE
By:/s/ Shirley M. Lukitsch
-------------------------------
Shirley M. Lukitsch
SML:sl
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8
of our report, dated February 3, 1998, included in the Annual Report
on Form 10-K of Scotsman Industries, Inc. for the year ended December
28, 1997, and to all references to our firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Chicago, Illinois
August 14, 1998
