- 9 -
As filed with the Securities and Exchange Commission on August 9, 1996.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_____________________
SOUTHERN ENERGY HOMES, INC.
(Exact name of registrant as specified in its charter)
Delaware . 63-1083246
.
State of Incorporation (IRS Employer
Identification Number)
Highway 41 North, P.O. Box 390, Addison, Alabama 35540
(Address of principal executive offices) (zip code)
SOUTHERN ENERGY HOMES, INC.
1996 Option Plan For Non-Employee Directors
(Full title of the Plan)
Paul J. Hartnett, Jr., Esquire
Brown, Rudnick, Freed & Gesmer
One Financial Center
Boston, MA 02111
(617) 856-8200
(Name, address and telephone number of agent for service)
Calculation of Registration Fee
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share Price Fee(2)
Common 75,000 shares $12.75 $956,250 $330
Stock, $.0001
par value
(1) Also registered hereunder are such additional number of
shares of common stock, presently indeterminable, as may be
necessary to satisfy the antidilution provisions of the Plan
to which this Registration Statement relates.
(2) The registration fee has been calculated on the basis of the
closing price of $12.75 on the Nasdaq National Market, on
August 5, 1996.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents by Reference.
The Company hereby incorporates by reference the
documents listed in (a) through (c) below. In addition, all
documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") (prior to the
filing of a Post-Effective Amendment which indicates that
all securities offered 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.
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995.
(b) All other reports filed pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal
year covered by the annual report, the Prospectus, or the
effective Registration Statement referred to in (a) above.
(c) The description of the Company's Common Stock
which is contained in the Prospectus dated March 12, 1993,
included in the Company's Registration Statement on Form S-
1 (Registration No. 33-57420) filed by the Company under
the Securities Act of 1933, which was incorporated by
reference in Item 1 of the Company's Registration Statement
on Form 8-A filed by the Company under the Exchange Act,
including any amendment or report filed for the purpose of
updating such description.
The audited consolidated financial statements of
the Company incorporated herein by reference should only be
read in conjunction with the discussion of legal matters
noted in footnote 6 to the financial statements included in
the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 29, 1996.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Article ELEVENTH of the Certificate of Incorporation
of the Company provides as follows:
No Director shall be personally liable to the
Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a Director notwithstanding any
provision of law imposing such liability; provided,
however, that, to the extent provided by applicable law,
this provision shall not eliminate the liability of a
Director (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)
under Section 174 of the General Corporation Law of
Delaware, or (iv) for any transaction from which the
Director derived an improper personal benefit. No amendment
to or repeal of this provision shall apply to or have any
effect on the liability or alleged liability of any
Director for or with respect to any acts or omissions of
such Director occurring prior to such amendment or repeal.
Section 145 of the General Corporation Law of the
State of Delaware permits the indemnification and insurance
of the corporation's directors and officers under certain
circumstances.
Article 10 of the By-laws of the Company provides as
follows:
ARTICLE 10
INDEMNIFICATION
Section 10.1 Third Party Actions. The Corporation
shall 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 (other than an
action by or in the right of the Corporation) by reason of
the fact that he is or was a Director, officer, employee or
agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or
upon plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act
in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his
conduct was unlawful.
Section 10.2 Derivative Actions. The Corporation
shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of
the fact that he is or was a Director, officer, employee or
agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, except
that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in
the performance of his duty to the Corporation unless and
only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine
upon application that, despite the adjudication of
liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery or such other
court shall deem proper.
Section 10.3 Expenses. To the extent that a
Director, officer, employee or agent of the Corporation has
been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Sections 10.1
and 10.2, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
Section 10.4 Authorization. Any indemnification
under Sections 10.1 and 10.2 (unless ordered by a court)
shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of
the Director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of
conduct set forth in Sections 10.1 and 10.2. Such
determination shall be made (a) by the Board of Directors
by a majority vote of a quorum consisting of Directors who
were not parties to such action, suit or proceeding, or (b)
if such a quorum is not obtainable, or, even if obtainable
a quorum of disinterested Directors so directs, by
independent legal counsel in a written opinion, or (c) by
the stockholders.
Section 10.5 Advance Payment of Expenses. Expenses
incurred by an officer or Director in defending a civil or
criminal action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such
action, suit or proceeding as authorized by the Board of
Directors in the specific case upon receipt of an
undertaking by or on behalf of such officer or Director to
repay such amount unless it shall ultimately be determined
that he is entitled to be indemnified by the Corporation as
authorized in this Article 10. Such expenses incurred by
other employees and agents may be so paid upon such terms
and conditions, if any, as the Board of Directors deems
appropriate.
Section 10.6 Non-Exclusiveness. The indemnification
provided by this Article 10 shall not be deemed exclusive
of any other rights to which those seeking indemnification
may be entitled under any by-law, agreement, vote of
stockholders or disinterested Directors or otherwise, both
as to action in his official capacity and as to action in
another capacity while holding such office, and shall
continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit
of the heirs, executors and administrators of such a
person.
Section 10.7 Insurance. The Corporation shall have
power to purchase and maintain insurance on behalf of any
person who is or was a Director, officer, employee or agent
of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust
or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising
out of his status as such, whether or not the Corporation
would have the power to indemnify him against such
liability under the provisions of this Article 10.
Section 10.8 Constituent Corporations. The
Corporation shall have power to indemnify any person who is
or was a director, officer, employee or agent of a
constituent corporation absorbed in a consolidation or
merger with this Corporation or is or was servicing at the
request of such constituent corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, in
the same manner as hereinabove provided for any person who
is or was a Director, officer, employee or agent of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise.
Section 10.9 Additional Indemnification. In addition
to the foregoing provisions of this Article 10, the
Corporation shall have the power, to the full extent
provided by law, to indemnify any person for any act or
omission of such person against all loss, cost, damage and
expense (including attorneys' fees) if such person is
determined (in the manner prescribed in Section 10.4
hereof) to have acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best
interest of the Corporation.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Number Description
4.1 Certificate of Incorporation of the Registrant -
- Filed as Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1 (File No. 33-
57420).*
4.2 By-Laws of the Registrant -- Filed as Exhibit
3.2 to the Registrant's Registration Statement on
Form S-1 (File No. 33-57420).*
4.3 Specimen of Stock Certificate -- Filed as
Exhibit 4.1 to the Registrant's Registration
Statement on Form S-1 (File No. 33-57420).*
5 Legal Opinion of Brown, Rudnick, Freed & Gesmer
24.1 Consent of Arthur Andersen LLP
24.2 Consent of Brown, Rudnick, Freed & Gesmer is
included in their legal opinion filed as Exhibit 5
hereof.
99 Southern Energy Homes, Inc. 1996 Option Plan For
Non-Employee Directors -- filed as Exhibit 10.20 to
Registrant's 1995 Annual Report on Form 10-K.*
______________
* Not filed herewith. In accordance with Rule 411 promulgated
pursuant to the Securities Act of 1933, as amended, reference
is made to the documents previously filed with the Commission,
which are incorporated by reference herein.
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 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.
(2) That, for the purpose of determining
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 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 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 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 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.
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 Addison, State of
Alabama, on August 7, 1996.
SOUTHERN ENERGY HOMES, INC.
By: /s/Wendell T. Batchelor
Wendell T. Batchelor
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 capacities and on the dates
indicated.
Signature Title Date
/s/Jonathan O. Lee Chairman of the Board August 7, 1996
Jonathan O. Lee and Director
/s/Wendell L. Batchelor President, Chief August 7, 1996
Wendell L. Batchelor Executive Officer and
Director (Principal
Executive Officer)
/s/Keith W. Brown Chief Financial August 7, 1996
Keith W. Brown Officer, Treasurer,
Secretary and Director
(Principal Financial
and Accounting Officer)
/s/Johnny R. Long Vice President and August 7, 1996
Johnny R. Long Director
/s/Paul J. Evanson Director August 7, 1996
Paul J. Evanson
/s/Joseph J. Incandela Director August 7, 1996
Joseph J. Incandela
INDEX TO EXHIBITS
Exhibit
Number
4.1 Certificate of Incorporation of
the Registrant - Filed as Exhibit 3.1
to the Registrant's Registration
Statement on Form S-1 (File No. 33-
57420).*
4.2 By-Laws of the Registrant - Filed
as Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1
(File No. 33-57420).*
4.3 Specimen of Stock Certificate -
Filed as Exhibit 4.1 to the
Registrant's Registration Statement on
Form S-1 (File No. 33-57420).*
5 Legal Opinion of Brown, Rudnick,
Freed & Gesmer
24.1 Consent of Arthur Andersen LLP
24.2 Consent of Brown, Rudnick, Freed &
Gesmer is included in their legal
opinion filed as Exhibit 5 hereof.
99 Southern Energy Homes, Inc. 1996
Option Plan For Non-Employee Directors
-- filed as Exhibit 10.20 to
Registrant's 1995 Annual Report on Form
10-K.*
______________
* Not filed herewith. In accordance with Rule 411
promulgated pursuant to the Securities Act of
1933, as amended, reference is made to the
documents previously filed with the Commission,
which are incorporated by reference herein.
EXHIBIT 5
August 9, 1996
Southern Energy Homes, Inc.
Highway 41 North
P.O. Box 390
Addison, AL 35540
Re: Southern Energy Homes, Inc.
Registration Statement on Form S-8
Gentlemen:
We are counsel for Southern Energy Homes, Inc., a Delaware
corporation (the "Company"). We have been asked to deliver this
opinion in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Act"), of a Registration Statement on Form
S-8 (the "Registration Statement") relating to 75,000 shares of
the Company's Common Stock, $.0001 par value (the "Shares"). The
Shares are issuable pursuant to the Company's 1996 Option Plan
for Non-Employee Directors (the "1996 Plan"). This opinion
letter, together with Schedule A attached hereto (the "Opinion
Letter"), is being rendered in connection with the filing of the
Registration Statement.
In connection with this Opinion Letter, we have examined and
are familiar with originals or copies, certified or otherwise
identified to our satisfaction, of the following documents
(collectively, the "Documents"):
1. a certificate from the Secretary of State of the State
of Delaware dated August 6, 1996 as to the legal existence and
good standing of the Company;
2. a copy of the Certificate of Incorporation of the
Company, as amended, and a certificate of the Secretary of the
Company that there have been no further amendments thereto;
3. a copy of the By-laws of the Company, as amended,
certified by the Secretary of the Company as presently being in
effect;
4. votes of the Board of Directors of the Company relating
to the approval of the 1996 Plan, certified by the Secretary of
the Company as presently being in effect;
5. the 1996 Plan;
6. a letter from the Company's transfer agent as to the
issued and outstanding shares of Common Stock of the Company as
of August 5, 1996; and
7. the Registration Statement.
We have, without independent investigation, relied upon the
representations and warranties of the various parties as to
matters of objective fact contained in the Documents.
In addition, this Firm, in rendering legal opinions,
customarily makes certain assumptions which are described in
Schedule A hereto. In the course of our representation of the
Company in connection with the preparation of the Registration
Statement, nothing has come to our attention which causes us to
believe that reliance upon any of these assumptions is
inappropriate, and, with your concurrence, the opinions hereafter
expressed are based upon those assumptions. The Enumerated Party
referred to in Schedule A is the Company.
We have not made any independent review or investigation of
orders, judgments, rules or other regulations or decrees by which
the Company or any of its property may be bound, nor have we made
any independent investigation as to the existence of actions,
suits, investigations or proceedings, if any, pending or
threatened against the Company.
With your concurrence, our opinion hereafter expressed is
based solely upon (1) our review of the Documents, (2)
discussions with those of our attorneys who have devoted
substantive attention to the preparation of the Registration
Statement and (3) such review of published sources of law as we
have deemed necessary.
Our opinions contained herein are limited to the laws of the
Commonwealth of Massachusetts, the General Corporation Law of the
State of Delaware, and the Federal law of the United States of
America.
We express no legal opinion upon any matter other than those
explicitly addressed below, and our express opinion therein
contained shall not be interpreted to be an implied opinion upon
any other matter.
Based upon and subject to the foregoing, we are of the
opinion that the Shares have been duly authorized for issuance
and will be validly issued, fully paid, and non-assessable, when
issued in accordance with the terms and conditions of the 1996
Plan.
We hereby consent to the reference to this Firm in the
Registration Statement and to the filing of this opinion as
Exhibit (5) to the Registration Statement.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER
By: Brown, Rudnick, Freed &
Gesmer, P.C., a Partner
By: /s/ Paul J. Hartnett,
Jr.
Paul J. Hartnett,
Jr., a Member
PJH/PJF/JGN
SCHEDULE A
BROWN, RUDNICK, FREED & GESMER
STANDARD ASSUMPTIONS
In rendering legal opinions, Brown, Rudnick, Freed & Gesmer
makes certain customary assumptions described below:
1. Each natural person executing any of the Documents has
sufficient legal capacity to enter into such Documents.
2. Each Document is accurate, complete and authentic, each
original is authentic, each copy conforms to an authentic
original and all signatures are genuine.
3. All official public records are accurate, complete and
properly indexed and filed.
4. There has not been any mutual mistake of fact or
misunderstanding, fraud, duress, or undue influence by or
among any of the parties to the Documents.
5. The conduct of the parties to the Documents has complied
in the past and will comply in the future with any
requirement of good faith, fair dealing and
conscionability.
6. The Enumerated Party will obtain all permits and
governmental approvals required in the future and take all
actions similarly required relevant to its performance of
its obligations under the Documents.
7. All parties to or bound by the Documents will act in
accordance with, and will refrain from taking any action
that is forbidden by, the terms and conditions of the
Documents.
8. There are no agreements or understandings among the
parties to or bound by the Documents, and there is no
usage of trade or course of prior dealing among such
parties, that would define, modify, waive, or qualify the
terms of any of the Documents.
EXHIBIT 24.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby
consent to the incorporation by reference in this
registration statement of our report dated
February 2, 1996, included in the Southern Energy
Homes, Inc. Annual Report on Form 10-K for the
year ended December 29, 1995, and to all
references to our Firm included in this
registration statement.
/s/Arthur Andersen LLP
Birmingham, Alabama
August 6, 1996
