Registration No: 333-564
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FINISHMASTER, INC.
(Exact name of registrant as specified in its charter)
INDIANA 38-2252096
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
54 Monument Circle, Suite 600
Indianapolis, Indiana 46204
(Address of Principal Executive Offices) (Zip Code)
FINISHMASTER, INC. STOCK OPTION PLAN
(Full title of the plan)
Andre B. Lacy, Chairman and Chief Executive Officer
FinishMaster, Inc.
54 Monument Circle, Suite 600, Indianapolis, Indiana 46204
(Name and address of agent for service)
(317) 237-3678
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
maximum maximum
offering aggregate Amount of
Type of securities Amount to be price per offering registration
to be registered registered unit (1) price (1) fee
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<S> <C> <C> <C> <C>
Common Stock, 150,000 $5.875 $881,250.00 $245.00
without par value shares (2)
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
and based on average of the high and low sales prices per share of
Common Stock of FinishMaster, Inc. on August 16, 1999, as reported by
the Nasdaq SmallCap Market, pursuant to Rule 457(h)(1) and Rule 457(c)
(2) Any additional shares of Common Stock to be issued as a result of stock
dividends, stock splits, or similar transactions shall be covered by
this Registration Statement as provided in Rule 416.
<PAGE>
The Contents of the Registration Statement for the FinishMaster, Inc.
Stock Option Plan filed on a Registration Statement on Form S-8 (No. 333-564)
are incorporated herein by this reference.
PART I
INFORMATION REQUIRED IN THE
SECTION 10(A) PROSPECTUS
The document(s) containing information specified by Part I of this Form
S-8 Registration Statement (the "Registration Statement") will be sent or given
to participants in the FinishMaster, Inc. Stock Option Plan (the "Plan"), as
specified in Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"1933 Act"). Such document(s) are not being filed with the Commission but
constitute (along with the documents incorporated by reference into the
Registration Statement pursuant to Item 3 of Part II hereof), a prospectus that
meets the requirements of Section 10(a) of the 1933 Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by FinishMaster, Inc. (the "Company") pursuant to
the Securities Exchange Act of 1934 (the "Exchange Act") are incorporated by
reference in this Registration Statement.
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1998.
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1999 and June 30, 1999.
(c) The Company's definitive proxy statement, dated April 9,
1999, filed pursuant to Section 14 of the Exchange Act, in connection
with the annual meeting of its shareholders held April 29, 1999.
(d) The description of the Common Stock contained in its
registration statement pursuant to Section 12(g) of the Exchange Act,
SEC File No. 0-23222, and all amendments or reports filed for the
purpose of updating such description.
(e) All reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, 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, as of the date of filing such
documents.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The following discussion of the indemnification provisions of the
Indiana Business Corporation Law (Indiana Code ss. 23-1-37) (the "IBCL"), which
applies to the Company, is a summary, is not meant to be complete, and is
qualified in its entirety by reference to the IBCL.
The IBCL authorizes a corporation to indemnify its directors, officers,
employees and agents against expenses in certain proceedings provided such
person (i) acted in good faith, (ii) reasonably believed if acting in an
official capacity, that his conduct was in the best interest of the corporation,
or in all other cases, that his conduct was at least not opposed to the
corporation's best interest, and (iii) in the case of criminal proceedings the
individual had reasonable cause to believe that his conduct was lawful, or had
no reasonable cause to believe that his conduct was unlawful. The IBCL provides
further that a corporation shall indemnify its directors, officers, employees,
and agents who are wholly successful, on the merits or otherwise, against
expenses in the defense of such proceedings. The IBCL provides, however, that
this indemnification should not be deemed exclusive of any other indemnification
rights provided by the Articles of Incorporation, By-Laws, resolution or other
authorizations adopted by a majority vote of the voting shares then issued and
outstanding.
Under the same statute, an Indiana corporation may purchase and
maintain insurance on behalf of any person who is or was a director, 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 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 the IBCL.
Section 8.08, Clause (b) of Article 8 of the Amended and Restated
Articles of Incorporation, as amended, of the Company provides as follows:
Clause (b). Indemnification of Corporate Persons and Related Matters.
The following provisions apply to the indemnification by the Corporation of
Corporate Persons and matters related thereto:
(i) Indemnification Standards. 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 or criminal, administrative or investigative, formal or
informal (an "Action"), by reason of the fact that he is or was a
Corporate Person of the Corporation or is or was serving at the request
of the Corporation as a Corporate Person, partner, trustee or member or
in another authorized capacity (collectively, an "Authorized Capacity")
of or for another Legal Entity, whether or not organized or formed for
profit (collectively, "Another Entity"), against expenses (including
attorneys' fees) ("Expenses") and judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such Action, if such person (1) acted in good faith,
(2) acted in a manner he reasonably believed (A) with respect to
actions as a Corporate Person of the Corporation, to be in the best
interests of the Corporation, or (B) with respect to actions in an
Authorized Capacity of or for Another Entity, was not opposed to the
best interests of the Corporation, and (3) with respect to any criminal
Action, either (A) had reasonable cause to believe his conduct was
lawful, or (B) had no reasonable cause to believe his conduct was
unlawful. The termination of any Action by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, be determinative that the person did not meet the
standards for indemnification set forth in this Clause (b)(i) (the
"Indemnification Standards").
(ii) Indemnification in Successfully Defended Actions. To the
extent that a person who is or was a Corporate Person of the
Corporation, or is or was serving at the request of the Corporation in
an Authorized Capacity of or for Another Entity, has been successful on
the merits or otherwise in the defense of any Action referred to in
Clause (b)(i) above, or in the defense of any claim, issue or matter in
any such Action, the Corporation shall indemnify him against Expenses
actually and reasonably incurred by him in connection therewith.
(iii) Indemnification Procedure. Unless ordered by a court,
any indemnification of any person under Clause (b)(i) above shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of such person is proper in the
circumstances because he met the Indemnification Standards. Such
determination shall be made (1) by the Board, by a majority vote of a
quorum consisting of Directors who are not at the time parties to the
Action involved ("Parties"); or (2) if a quorum cannot be obtained
under Subparagraph (1), by a majority vote of a Committee duly
designated by the Board (in which designation Directors who are Parties
may participate), consisting solely of two or more Directors who are
not at the time Parties; or (3) by written opinion of independent legal
counsel (A) selected by the Board or Committee in the manner prescribed
in Subparagraphs (1) or (2), respectively, or (B) if a quorum cannot be
obtained and a Committee cannot be designated under Subparagraphs (1)
and (2), respectively, selected by a majority of the full Board, in
which selection Directors who are Parties may participate; or (4) by
the Shareholders who are not at the time Parties, voting together as a
single class.
(iv) Advances for Expenses. Expenses reasonably incurred in
defending an Action by any person who may be entitled to
indemnification under Clause (b)(i) above may be paid by the
Corporation in advance of the final disposition of such Action if (1)
such person furnishes the Corporation with (A) a written affirmation of
his good faith belief that he has met, and (B) a written undertaking,
executed personally or on his behalf, to repay the advance (an
"Undertaking") if it is ultimately determined that he did not meet, the
Indemnification Standards; and (2) a determination is made, under the
procedure set forth in Clause (b)(iii) above, that the facts then known
to those making the determination would not preclude indemnification
under Clause (b)(i) above. An Undertaking must be an unlimited general
obligation of the person making it, but need not be secured and may be
accepted by the Corporation without further reference to such person's
financial ability to make repayment.
(v) Rights Not Exclusive. The indemnification provided in
these Articles (1) shall not be deemed exclusive of any other rights to
which a person seeking indemnification may be entitled under (A) any
law, (B) the By-Laws, (C) any resolution of the Board or of the
Shareholders, (D) any other authorization, whenever adopted, after
notice, by a majority vote of all Shares entitled to vote on General
Voting Matters, or (E) the articles of incorporation, code of by-laws
or other governing documents or any resolution of or other
authorization by the directors, shareholders, partners, trustees,
members, owners or governing body, of Another Entity; (2) shall inure
to the benefit of the heirs, executors and administrators of such
person; and (3) shall continue as to any such person who has ceased to
be a Corporate Person of the Corporation or to be serving in an
Authorized Capacity for Another Entity.
(vi) Insurance. The Corporation shall have power to purchase
and maintain insurance on behalf of any person who is or was a
Corporate Person of the Corporation, or is or was serving at the
request of the Corporation in an Authorized Capacity of or for Another
Entity, against any liability asserted against 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 Clause (b).
(vii) Definition of Corporation. For the purposes of this
Clause (b), references to "the Corporation" include any constituent
corporation absorbed in a consolidation or merger (a "Constituent") as
well as the resulting or surviving corporation (the "Survivor"), such
that any person who is or was a Corporate Person of such a Constituent,
or is or was serving at the request of such Constituent in an
Authorized Capacity of or for Another Entity, shall stand in the same
position under the provisions of this Clause (b) with respect to the
Survivor as he would if he had served the Survivor, or at his request,
in the same capacity.
The Company maintains directors' and officers' liability insurance with
an annual aggregate limit of $5,000,000 for the current policy period, subject
to a $100,000 deductible at the corporate level, for each wrongful act where
corporate reimbursement is available to any director or officer, provided,
however, that prior to September 16, 1999, any securities claim is subject to a
$250,000 deductible at the corporate level. When corporate reimbursement is not
available as prescribed by applicable common law, statutory law or the Company's
governing documents, the insurer will reimburse the directors and officers with
no deductible with respect to losses sustained by them for specified wrongful
acts while acting in their capacities, individually or collectively, as such
directors or officers.
Item 8. Exhibits.
EXHIBIT INDEX
Exhibit 5 Opinion of Barnes & Thornburg with respect to the legality
of the securities registered hereunder.
Exhibit 23-A Consent of PricewaterhouseCoopers LLP
Exhibit 23-B Consent of Barnes & Thornburg (included in opinion of
counsel filed as Exhibit 5)
Exhibit 24 Powers of Attorney (included in signature page).
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:
(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 hereof (or the most recent post-effective
amendment hereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if 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 the
Securities Exchange Act of 1934 that are incorporated by reference in this
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.
(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 (and 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.
(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.
<PAGE>
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 Indianapolis, State of Indiana, on August 13, 1999.
FINISHMASTER, INC.
By: /s/ Andre B. Lacy
-----------------
Andre B. Lacy, Chairman
and Chief Executive Officer
Each person whose signature appears below authorizes Andre B. Lacy to
file one or more amendments (including post-effective amendments) to the
registration statement, which amendments may make such changes in the
registration statement as he deems appropriate, and each such person hereby
appoints Andre B. Lacy as attorney-in-fact to execute in the name and on behalf
of each person individually, and in each capacity stated below, any such
amendment to the registration statement.
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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
(1) Principal Executive Officer
/s/ Andre B. Lacy Chairman and Chief August 13, 1999
Andre B. Lacy Executive Officer
(2) Principal Financial Officer
/s/ Robert R. Millard Senior Vice President, August 13, 1999
Robert R. Millard Finance & Chief Financial
Officer
(3) Principal Accounting Officer
/s/ Robert R. Millard Senior Vice President, August 13, 1999
Robert R. Millard Finance & Chief Financial
Officer
</TABLE>
<PAGE>
(4) A Majority of the Board
of Directors
/s/ Andre B. Lacy Director August 13, 1999
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Andre B. Lacy
/s/ Thomas U. Young Director August 13, 1999
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Thomas U. Young
/s/ Margot L. Eccles Director August 13, 1999
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Margot L. Eccles
/s/ Peter L. Frechette Director August 16, 1999
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Peter L. Frechette
/s/ David W. Knall Director August 13, 1999
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David W. Knall
/s/ Michael L. Smith Director August 14, 1999
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Michael L. Smith
/s/ Walter S. Wiseman Director August 13, 1999
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Walter S. Wiseman
/s/ Wes Dearbaugh Director August 13, 1999
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Wes Dearbaugh
EXHIBIT 5
August 17, 1999
FinishMaster, Inc.
54 Monument Circle, Suite 600
Indianapolis, Indiana 46204
Ladies and Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") of FinishMaster, Inc. (the
"Corporation"), relating to the offer and sale of 150,000 shares of the Common
Stock, without par value of the Corporation (the "Common Stock") under the
FinishMaster, Inc. Stock Option Plan, as amended (the "Plan"). In connection
with your request, we have made such examination of the corporate records and
proceedings of the Corporation and considered such questions of law and taken
such further action as we deemed necessary or appropriate to enable us to render
this opinion.
Based upon such examination, we are of the opinion that when the Common
Stock has been purchased and the purchase price therefor has been paid as
described in the Plan and when the Corporation has complied with the Securities
Act of 1933, as amended, and with the securities laws of the State of Indiana
and all other jurisdictions in which Common Stock is to be sold pursuant to the
exercise of stock options granted under the Plan, the Common Stock will be
legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, however, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
BARNES & THORNBURG
/s/ Barnes & Thornburg
EXHIBIT 23-A
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 26, 1999 relating to the
consolidated financial statements and financial statement schedule, which
appears in FinishMaster, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Indianapolis, Indiana
August 16, 1999
