As filed with the Securities and Exchange Commission on September 4, 1996
Registration No. 33-____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
______________________________
MITY-LITE, INC.
(Exact name of registrant as specified in its charter)
Utah 87-0448892
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1301 West 400 North
Orem, Utah 84057
(Address of Principal Executive Offices)
MITY-LITE, INC. EMPLOYEE RETIREMENT PLAN
MITY-LITE, INC. 1990 STOCK OPTION PLAN
(Full title of the plans)
Copy to:
Gregory L. Wilson, President Nolan S. Taylor, Esq.
Mity-Lite, Inc. Thomas R. Taylor, Esq.
1301 West 400 North LeBoeuf, Lamb, Greene & MacRae, L.L.P.
Orem, Utah 84057 136 South Main Street
Telephone: (801) 224-0589 1000 Kearns Building
(Name, address, including zip code, Salt Lake City, Utah 84101-1685
and telephone number, including Telephone: (801) 320-6700
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed Maximum
Securities Amount To Maximum Aggregate Amount of
To Be Be Offering Price Offering Registration
Registered Registered Per Share Price Fee
Common Stock,
$0.01 par
value 525,000 $7.88(1) $4,137,000 $ 1,426.55
Interests in
the Employee
Retirement
Plan (2) (2) (2) (2)
(1) Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act
of 1933, estimated solely for the purpose of calculating the registration
fee, based upon the average of the final bid and asked prices for Mity-
Lite, Inc. Common Stock as quoted on the NASDAQ National Market System on
August 29, 1996.
(2) Pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate number of interests to
be offered or sold pursuant to the Employee Retirement Plan described
herein. Pursuant to Rule 457(h)(2), no separate fee is required with
respect to such interests.
Exhibit Index is on page 7
Page 1 of 13
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year
ended March 31, 1996.
(b) The Company's Quarterly Report on Form 10-QSB for the quarterly
period ended June 30, 1996.
(c) The description of the Company's Common Stock included in the
Company's Registration Statement on Form 8-A filed with the
Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended.
(d) The Company's 1996 Annual Report to Shareholders.
All documents filed by the Company or the Company's Employee
Retirement Plan (the "401(k) Plan") pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 after the date this
Registration Statement is filed with the Securities and Exchange Commission
but prior to the filing of a post-effective amendment that indicates that
all securities offered have been sold or that 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 respective
dates of the 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
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Article IV of the Company's Amended and Restated Articles of
Incorporation and Article 9 of the Company's Amended and Restated Bylaws,
as amended by the First Amendment to the Amended and Restated Bylaws, and
in accordance with Section 16-10a-901 et seq. of the Utah Revised Business
Corporation Act, as amended, provide that the Company may, to the maximum
extent and in the manner permitted by the Utah Revised Business Corporation
Act, as amended, indemnify an individual made a party to a proceeding
because he is or was a director of the Company against liability incurred
in any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, and whether formal or
informal, if the individual's conduct was in good faith, he reasonably
believed that his conduct was in, or not opposed to, the Company's best
interests, and, in the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful. The liability
against which indemnification is applicable is the liability incurred with
respect to a proceeding to pay a judgment, settlement, penalty, fine
(including any excise tax assessed with respect to an employee benefit
plan), or reasonable expenses. The termination of a proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere
or its equivalent, is not, of itself, determinative that the individual's
conduct was not in good faith, that the individual did not reasonably
believe that his conduct was in, or not opposed to, the Company's best
interests, or that, in the case of any criminal proceeding, the individual
had reasonable cause to believe his conduct was unlawful. The Company may
also indemnify any officer of the Company who is not also a director to a
greater extent, if not inconsistent with public policy and, if provided for
by the Company's Articles of Incorporation or Bylaws, by general or
specific action of its Board of Directors, or by contract.
The Company may not indemnify an individual unless authorized and a
determination is made in the specific case that indemnification of the
individual is permissible in the circumstances because his conduct was in
good faith, he reasonably believed that his conduct was in, or not opposed
to, the Company's best interests, and, in the case of any criminal
proceeding, he had no reasonable cause to believe his conduct was unlawful.
The Company may not advance expenses to any individual to whom the Company
may ultimately be responsible for indemnification unless authorized in the
specific case and after the individual furnishes the following to the
Company: (1) a written affirmation of his good faith belief that his
conduct was in good faith, that he reasonably believed his conduct was in,
or not opposed to, the Company's best interests, and, in the case of any
criminal proceeding, he had no reasonable cause to believe his conduct was
unlawful; and (2) a written undertaking, executed personally or on his
behalf, to repay the advance if it is ultimately determined that he did not
meet the standard of conduct referenced in part (1) of this sentence. In
addition to the individual furnishing the aforementioned written
affirmation and undertaking in order for the Company to advance expenses,
the determination must also be made that the facts then known to those
making the determination would not preclude indemnification.
All determinations relative to indemnification must be made as
follows: (1) by the Board of Directors of the Company by a majority vote of
those present at a meeting at which a quorum is present, with only those
directors not parties to the proceeding being counted in satisfying the
quorum requirement; or (2) if a quorum cannot be obtained as contemplated
in part (1) of this sentence, by a majority vote of a committee of the
Board of Directors designated by the Board of Directors of the Company,
which committee shall consist of two or more directors who are not parties
to the proceeding, except that directors who are parties to the proceeding
may participate in the designation of the directors to serve on the
committee; or (3) by special legal counsel selected by the Board of
Directors or its committee in the manner prescribed in part (1) or part (2)
of this sentence (however, if a quorum of the Board of Directors cannot be
obtained under part (1) of this sentence and a committee cannot be
designated under part (2) of this sentence, then such special legal counsel
shall be selected by a majority vote of the full Board of Directors, in
which selection directors who are parties to the proceeding may
participate); or (4) by the shareholders, by a majority of the votes
entitled to be cast by holders of qualified shares present in person or by
proxy at a meeting.
The Company has also entered into Indemnification Agreements with its
officers and directors. These Indemnification Agreements are substantially
similar in effect to the Company's Bylaws and Articles of Incorporation
relative to providing indemnification to the maximum extent allowed and in
the manner permitted by the Utah Revised Business Corporation Act, as
amended. Additionally, such Indemnification Agreements contractually bind
the Company with respect to indemnification and contain certain exceptions
to indemnification, but do not limit the indemnification available pursuant
to the Company's Bylaws or Articles of Incorporation or under the Utah
Revised Business Corporation Act, as amended.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed as a part of this Registration
Statement:
Exhibit No. Description
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (including
consent)
10.1 Employee Retirement Plan (1)
10.2 1990 Stock Option Plan (2)
23.1 Consent of Price Waterhouse LLP
23.2 Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included
in Exhibit 5.1 above)
____________________
(1) Incorporated by reference to the Company's Annual Report on Form 10-
KSB for the fiscal year ended March 31, 1996.
(2) Incorporated by reference to the Company's Registration Statement on
Form SB-2, Registration Number 33-76758-D, filed with the Commission
on March 24, 1994.
(a) See Exhibit No. 5.1 attached hereto for opinion as to the
legality of the securities being registered hereunder.
(b) The registrant has submitted the 401(k) Plan (and hereby
undertakes to submit any future amendments thereto) to the
Internal Revenue Service and has made and will make all changes
required by the Internal Revenue Service in order to quality the
401(k) Plan.
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 of this Registration Statement (or
the most recent post-effective amendment thereof) that, individually
or in the aggregate, represent a fundamental change in the information
set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) of the
Securities Act of 1933 if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(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) shall not apply
to information required to be included in a post-effective amendment by
those paragraphs that 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 that 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, 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 this 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 that 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 that Act and will be governed by the final
adjudication of such issue.
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 Orem, State of Utah,
on August 29, 1996.
MITY-LITE, INC.
(Registrant)
By: /s/ Gregory L. Wilson
__________________________________________
Gregory L. Wilson
Its: President
The 401(k) Plan. Pursuant to the requirements of the Securities Act
of 1933, the Trustees have duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Orem, State of Utah, on August 29, 1996.
MITY-LITE, INC. EMPLOYEE RETIREMENT PLAN
(Plan)
By: /s/ Gregory L. Wilson
________________________________________
Gregory L. Wilson
Its: Trustee
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers or
directors of the registrant, by virtue of their signatures to this
Registration Statement appearing below, hereby constitute and appoint
Gregory L. Wilson as attorney-in-fact in his name, place and stead to
execute any and all amendments to this Registration Statement in the
capacities set forth opposite their names and hereby ratify all that said
attorney-in-fact may do by virtue hereof.
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 dates indicated:
SIGNATURE TITLE DATE
/s/ Gregory L. Wilson Chairman of the Board, August 29, 1996
(Gregory L. Wilson) President, Treasurer and
Director (Principal
Executive Officer)
/s/ Bradley T Nielson Chief Financial Officer August 29, 1996
(Bradley T Nielson) (Chief Financial and
Accounting Officer)
/s/ Ralph E. Crump Director August 29, 1996
(Ralph E. Crump)
/s/ Peter Najar Director August 29, 1996
(Peter Najar)
/s/ C. Lewis Wilson Director August 29, 1996
(C. Lewis Wilson)
INDEX TO EXHIBITS
Exhibit No. Description Page No.
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
(including consent) 9
10.1 Employee Retirement Plan (1)
10.2 1990 Stock Option Plan (2)
23.1 Consent of Price Waterhouse LLP 11
23.2 Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
(included in Exhibit 5.1 above) 13
_____________________
(1) Incorporated by reference to the Company's Annual Report on Form 10-
KSB for the fiscal year ending March 31, 1996.
(2) Incorporated by reference to the Company's Registration Statement on
Form SB-2, Registration Number 33-76758-2, filed with the Commission
on March 24, 1994.
EXHIBIT 5.1
[LeBoeuf, Lamb, Greene & MacRae
L.L.P.]
(801) 320-6727
August 29, 1996
Securities and Exchange Commission
Division of Corporate Finance
450 Fifth Street, N.W., Judicial Plaza
Washington, D.C. 20549
Re: Mity-Lite, Inc. Form S-8 Registration Statement Relating to
525,000 Shares of Common Stock and an Indeterminate Number of
Interests to be Offered or Sold Pursuant to the Employee
Retirement Plan (the "401(k) Plan") and the 1990 Stock Option
Plan (the "1990 Plan")
Ladies and Gentlemen:
As counsel for Mity-Lite, Inc., a Utah corporation, in connection with
its proposed registration of a total of 525,000 shares of Common Stock,
$0.01 par value per share, and an indeterminate number of interests to be
offered or sold pursuant to the 401(k) Plan and the 1990 Plan, it is our
opinion that the securities being registered will, upon receipt by Mity-
Lite, Inc. of consideration therefor and the issuance of such securities,
be legally issued, fully-paid and non-assessable. Furthermore, we consent
to the inclusion of our opinion as an Exhibit to the Registration Statement
of Mity-Lite, Inc. on Form S-8 under the Securities Act of 1933, as
amended.
Very truly yours,
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated May 13,
1996, which appears on page 21 of the 1996 Annual Report to
Shareholders of Mity-Lite, Inc., which is incorporated by
reference in Mity-Lite, Inc.'s Annual Report on Form 10-KSB for
the year ended March 31, 1996.
Price Waterhouse LLP
Salt Lake City, Utah
August 29, 1996
EXHIBIT 23.2
See Exhibit 5.1 for Consent of LeBoeuf, Lamb, Greene & MacRae,
L.L.P.
