As Filed with the Securities and Exchange Commission on November 29, 2000
Registration No.
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United States Securities and Exchange Commission
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 43-1659062
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1900 Gulf Street, Lamar, Missouri 64759-1899
(Address of Principal Executive Offices) (ZIP Code)
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
2000 COMMON STOCK OPTION PLAN
(Full Title of the Plan)
ROWLAND H. GEDDIE, III
Vice President, General Counsel and Secretary
O'Sullivan Industries Holdings, Inc.
1900 Gulf Street
Lamar, Missouri 64759-1899
(Name and Address of Agent for Service)
417-682-3322
(Telephone number, including area code, of agent for service)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be offering price aggregate Registration
Registered Registered per share 1 offering price Fee
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<S> <C> <C> <C> <C>
Common Stock,
par value $0.01
per share 81,818 $1.90 $155,454.20 $36.86
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</TABLE>
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1 The registration fee was calculated in accordance with Rule 457(h)(1)
upon the basis of exercise price of outstanding options.
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EXPLANATORY NOTES
As permitted by the rules of the Securities and Exchange Commission (the
"Commission"), this Registration Statement omits the information specified in
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by O'Sullivan
Industries Holdings, Inc. (File No. 0-28493) are incorporated in this
Registration Statement on Form S-8 by reference:
1. O'Sullivan's Annual Report on Form 10-K for the fiscal year
ended June 30, 2000; and
2. O'Sullivan's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000; and
All documents subsequently filed by O'Sullivan with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended and 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 to be incorporated by
reference in the registration statement and to be a part hereof from the date of
filing of such documents. Any statement contained 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 other subsequently filed document, that
also is or is deemed to be incorporated by reference 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.
Item 4. DESCRIPTION OF SECURITIES
Under O'Sullivan's Amended and Restated Certificate of Incorporation,
2,000,000 shares of common stock, par value $0.01 per share, are authorized for
issuance. The following is a description of the common stock.
Voting Rights. Each holder of a share or shares of common stock is
entitled to one vote per share on all matters submitted to a vote of the
stockholders.
Dividend Rights. The holders of common stock are entitled to dividends
and other distributions if, as and when declared by the Board of Directors out
of assets legally available therefor, subject to the rights of any holder of
preferred stock that may from time to time be outstanding.
Other Rights. Upon the liquidation, dissolution or winding up of
O'Sullivan, the holders of shares of common stock are entitled to share pro rata
in the distribution of all of O'Sullivan's assets remaining available for
distribution after satisfaction of all O'Sullivan's liabilities and the payment
of the liquidation preference and accrued but unpaid dividends on any preferred
stock that may be outstanding. The holders of common stock have no preemptive or
other subscription rights to purchase shares of stock of O'Sullivan, and there
are no redemptive or sinking fund provisions applicable to the common stock.
Valid Issuance. All of the outstanding shares of common stock have
been duly authorized, validly issued, fully paid and nonassessable.
Transfer. The common stock is transferrable on the books and records
of the company. The common stock is not listed on an exchange or NASDAQ, nor
is it registered under the Securities Exchange act of 1934, as amended.
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable
Item 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporate Law (the "DGCL") provides
that a corporation may indemnify directors and officers as well as other
employees and individuals 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 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
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) actually and reasonably incurred
in connection with the defense or settlement of the action, and the statute
requires court approval before there can be any indemnification where the person
seeking indemnification has been found liable to the corporation. The statute
provides that it is not exclusive of other indemnification that may be granted
by a corporation's bylaws, disinterested director vote, stockholder vote,
agreement, or otherwise.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty by the director, as a director, except for
liability for (i) any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
payment of unlawful dividends or unlawful stock purchases or redemptions, or
(iv) any transaction from which the director derived an improper personal
benefit.
Article X of the Amended and Restated Certificate of Incorporation of
O'Sullivan Industries Holdings, Inc. provides that a director of the corporation
shall not be personally liable to O'Sullivan or its stockholders for monetary
damages for breach of fiduciary duty as a director; provided, however, that the
foregoing shall not eliminate or limit 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 DGCL,
or (iv) for any transaction from which the director derived an improper personal
benefit. If the DGCL is hereafter amended to permit further elimination or
limitation of the personal liability of directors, then the liability of a
director of the corporation shall be eliminated or limited to the fullest extent
permitted by the DGCL as so amended. Any repeal or modification of Article X by
the stockholders of the corporation or otherwise shall not adversely affect any
right or protection of a director of the corporation existing at the time of
that repeal or modification.
Under Article VIII of O'Sullivan's Amended and Restated Certificate of
Incorporation, 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 the 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 a plea of 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. Notwithstanding any
contrary determination in the specific case and notwithstanding the absence of
any determination thereunder, any director or officer may apply to the Court of
Chancery of the State of Delaware or any other court of competent jurisdiction
in the State of Delaware for indemnification to the extent otherwise
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permissible under O'Sullivan's Amended and Restated Certificate of
Incorporation. The basis of such indemnification by a court shall be a
determination by the court that indemnification of the director or officer is
proper in the circumstances because the person has met the applicable standards
of conduct set forth in O'Sullivan's Bylaws.
O'Sullivan maintains directors' and officers' liability insurance which
provides for payment, on behalf of the directors and officers thereof and its
subsidiaries, of certain losses of such persons (other than matters uninsurable
under law) arising from claims, including claims arising under the Securities
Act of 1933, as amended, for acts or omissions by such persons while acting as
directors or officers thereof and/or its subsidiaries, as the case may be.
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, O'Sullivan
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 O'Sullivan of expenses incurred or
paid by a director, officer or controlling person of O'Sullivan 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, O'Sullivan 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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
Item 8. EXHIBITS
A list of exhibits required to be filed as part of this Report is set
forth in the Index to Exhibits, which immediately precedes such exhibits, and is
incorporated herein by reference.
Item 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a)(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;
(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; and/or
(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 information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished by the
registrant pursuant to section 13 or section 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.
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(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
1934 Act and that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(C) The undertaking regarding indemnification of officers and directors is
included as part of Item 6, which is incorporated into this Item 9 by reference.
Page 5 of 9
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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 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 Lamar, State of Missouri, on the 29th day of
November, 2000.
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
(Registrant)
By /s/ Richard D. Davidson
Richard D. Davidson
President and
Chief Executive 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 and on the date indicated.
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/s/ Daniel F. O'Sullivan Chairman of the Board November 29, 2000
Daniel F. O'Sullivan
/s/ Richard D. Davidson President and
Richard D. Davidson Chief Executive Officer November 29, 2000
and Director
(Principal Executive Officer)
/s/ Phillip J. Pacey Senior Vice President and
Phillip J. Pacey Chief Financial Officer November 29, 2000
(Principal Financial and
Accounting Officer)
/s/ Stephen F. Edwards Director November 29, 2000
Stephen F. Edwards
/s/ Harold O. Rosser Director November 29, 2000
Harold O. Rosser
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INDEX TO EXHIBITS
Exhibit No. Description
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4.1 Amended and restated Certificate of Incorporation of O'Sullivan
(Incorporated by reference from Exhibit 2.4(a) to Appendix A to
the prospectus included in Registration Statement on Form S-1
(File No. 333-81631))
4.2 By-laws of the Company (incorporated by reference from
Exhibit 3.2 to Registration Statement on Form S-1
(File No. 33-72120))
4.3 O'Sullivan 2000 Stock Option Plan (incorporated by reference
from Exhibit 10.11 to Registration Statement on Form S-4 (File
No. 333-31282))
4.4 Indenture dated as of November 30, 1999, by O'Sullivan
Industries, Inc., as Issuer, O'Sullivan Industries - Virginia,
Inc., as Guarantor, and Norwest Bank Minnesota, National
Association, as Trustee, relating to O'Sullivan Industries,
Inc.'s $100,000,000 principal amount of 13.375% senior
subordinated notes (incorporated by reference to Exhibit 4.4 to
Quarterly Report on Form 10-Q for the quarter ended December 31,
1999 (File No. 0-28493))
4.5 Stockholders Agreement dated as of November 30, 1999 among
O'Sullivan Industries Holdings, Inc., Bruckmann, Rosser,
Sherrill & Co. II, L.P. and the individuals executing signature
pages to the agreement (incorporated by reference to Exhibit
10.5 to Quarterly Report on Form 10-Q of O'Sullivan Holdings for
the quarter ended December 31, 1999 (File No. 0-28493))
4.6 Form of incentive stock option agreement between O'Sullivan and
certain key employees (incorporated by reference to Exhibit 10.12
to Annual Report on Form 10-K for the year ended June 30, 2000
(File No. 0-28493))
5 Opinion of Rowland H. Geddie, III
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
23.2 Consent of Rowland H. Geddie, III, counsel (included in
Exhibit 5)
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