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As filed with the Securities and Exchange Commission on May 4, 1995.
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 50549
FORM S-8
Registration Statement Under
the Securities Act of 1933
THOMAS INDUSTRIES INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 61-0505332
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
4360 BROWNSBORO ROAD
SUITE 300
LOUISVILLE, KENTUCKY 40207
(Address of Principal Executive Offices)
THOMAS INDUSTRIES INC.
1995 INCENTIVE STOCK PLAN
(Full Title of the Plan)
PHILLIP J. STUECKER Telephone number,
SECRETARY, including area code,
VICE PRESIDENT OF FINANCE AND of agent for service:
CHIEF FINANCIAL OFFICER (502) 893-4600
THOMAS INDUSTRIES INC.
4360 BROWNSBORO ROAD
SUITE 300
LOUISVILLE, KENTUCKY 40207
(Name and Address 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<F1> Per Share<F2> Price<F2> Fee
Common Stock, 600,000 Shares $16.125 $9,675,000 $3,337
par value $1.00,
including Preferred
Stock Purchase
Rights<F3>
<F1> An undetermined number of additional shares may be
issued if the anti-dilution adjustment provisions of
the plan become operative.
<F2> Estimated solely for the purpose of calculating the
registration fee in accordance with rule 457(c) and (h)
under the Securities Act of 1933 on the basis of the
average of the high and low prices of the Common Stock
as reported on the New York Stock Exchange on May 2,
1995.
<PAGE>
<F3> Prior to the occurrence of certain events, the
Preferred Stock Purchase Rights will not be evidenced
separately from the Common Stock.
Pursuant to Rule 429(b) under the Securities Act of 1933 this Registration
Statement relates to Registrant's Registration Statement on Form S-8 #33-16257.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference
into this registration statement:
(1) The Annual Report of Thomas Industries Inc. (the
"Company") on Form 10-K for the year ended December 31, 1994,
which has heretofore been filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act").
(2) The description of the Company's Common Stock
contained in the Company's Registration Statement on Form 8-A
filed with the Commission pursuant to Section 12 of the 1934 Act.
(3) The description of the Company's Preferred Stock
Purchase Rights contained in the Company's Registration Statement
on Form 8-A, as amended, filed with the Commission pursuant to
Section 12 of the 1934 Act.
All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 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 (such
documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents"); provided, however, that
the documents enumerated above or subsequently filed by the
registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 in each year during which the
offering made by this registration statement is in effect prior
to the filing with the Commission of the registrant's Annual
Report on Form 10-K covering such year shall not be Incorporated
Documents or be incorporated by reference in this registration
statement or be a part hereof from and after the filing of such
Annual Report on Form 10-K.
Any statement contained in an Incorporated Document
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 Incorporated Document
modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified
<PAGE>
or superseded, to constitute a part of this registration
statement.
Item 4. Description of Securities.
The securities to be offered are registered under
Section 12(b) of the 1934 Act.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law and
the By-laws of the Company provide for indemnification of
directors and officers for expenses (including reasonable amounts
paid in settlement) incurred in defending actions brought against
them.
The Company's Restated Certificate of Incorporation
contains a provision that eliminates, to the fullest extent
permitted by Delaware law, the personal liability of each
director of the Company to the Company and its shareholders for
monetary damages for certain breaches of fiduciary duty. This
provision does not affect the director's liability for monetary
damages for breaches of the duty of loyalty, actions or omissions
not in good faith, knowing violation of law or intentional
misconduct, willful or negligent conduct in approving an unlawful
dividend, stock repurchase or redemption or obtaining improper
personal benefits, nor does this provision eliminate the ability
to bring suit to rescind a transaction or to enjoin a proposed
transaction from occurring. In addition, this provision applies
only to claims against a director arising out of his role as a
director and not, if he is also an officer, his role as an
officer or in any other capacity, nor to his responsibilities
under any other law, such as the federal securities laws.
The By-laws of the Company provide that directors and
officers shall be indemnified and held harmless by the Company to
the fullest extent permitted by the laws of Delaware as the same
now or hereafter exist.
The Company maintains directors and officers liability
insurance covering all directors and officers of the Company
against claims arising out of the performance of their duties.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Reference is made to the Exhibit Index.
Item 9. Undertakings.
The registrant hereby undertakes:
<PAGE>
(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 any liability
under the Securities Act of 1933 (the "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) That, for the purposes of determining any
liability under the Act, 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.
(4) 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.
(5) Insofar as indemnification for liabilities arising
under the Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
described in Item 6 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 undersigned 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 Louisville,
Commonwealth of Kentucky, on the 20th day of April, 1995.
<PAGE>
THOMAS INDUSTRIES INC.
By: /s/ Timothy C. Brown
_________________________
Timothy C. Brown,
President, Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Thomas
Industries Inc., hereby severally constitute Timothy C. Brown and
Phillip J. Stuecker, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to
sign for us and in our names in the capacities indicated below,
the Registration Statement on Form S-8 filed herewith and any and
all amendments (including post-effective amendments) to said
Registration Statement, and generally to do all such things in
our name and behalf in the capacities indicated below to enable
Thomas Industries Inc. to comply with the provisions of the
Securities Act of 1933, as amended, and all requirements of the
Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said
attorneys, or any of them, to said Registration Statement and any
and all amendments thereto.
Pursuant to the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities indicated on the 20th day of April, 1995.
Signature Title
/s/ Timothy C. Brown
________________________________ President, Chief Executive
Timothy C. Brown Officer and Director
(Principal Executive Officer)
/s/ Phillip J. Stuecker
_________________________________ Vice President, Finance;
Phillip J. Stuecker Chief Financial Officer and
Secretary (Principal Financial
Officer)
/s/ Ronald D. Wiseman
________________________________ Controller and Assistant
Ronald D. Wiseman Secretary (Principal
Accounting Officer)
/s/ Peter P. Donis
________________________________ Director
Peter P. Donis
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/s/ Wallace H. Dunbar
________________________________ Director
Wallace H. Dunbar
/s/ Roger P. Eklund
________________________________ Director
Roger P. Eklund
/s/ H. Joseph Ferguson
________________________________ Director
H. Joseph Ferguson
/s/ Gene P. Garnder
________________________________ Director
Gene P. Gardner
/s/ Lawrence E. Gloyd
________________________________ Director
Lawrence E. Gloyd
/s/ Ralph D. Ketchum
________________________________ Director
Ralph D. Ketchum
/s/ Franklin J. Lunding, Jr.
________________________________ Director
Franklin J. Lunding, Jr.
EXHIBIT INDEX
Exhibit Number Description
4.1 Thomas Industries Inc. 1995 Incentive Stock Plan
(incorporated herein by reference to Exhibit A to
Registrant's Proxy Statement dated March 14, 1995).
4.2 Restated Certificate of Incorporation, as amended
(incorporated herein by reference to Exhibit 3(a)
to Registrant's Form 10-Q filed for the quarterly
period ended June 30, 1988).
4.3 By-laws, as amended.*
4.4 Rights Agreement dated as of December 24, 1987
between the Company and Wachovia Bank and Trust
Co., N.A. (incorporated herein by reference to
Exhibit 1 to Registrant's Form 8-A dated December
23, 1987).
4.5 Amendment dated as of October 18, 1990 to Rights
Agreement (incorporated herein by reference to
Exhibit 1 to Registrant's Form 8-K dated October
23, 1990).
5 Opinion (including consent) of McDermott, Will &
Emery.*
23.1 Consent of KPMG Peat Marwick LLP.*
<PAGE>
23.2 Consent of Ernst & Young LLP.*
*Filed herewith
<PAGE>
Exhibit 4.3
BYLAWS
OF
THOMAS INDUSTRIES INC.
ARTICLE I
Offices
The principal office of the Corporation in the State of Delaware is
located at No. 306 South State Street, City of Dover 19901, County of Kent,
State of Delaware; and the name of the resident agent in charge thereof is
the United States Corporation Company. The Company may also have offices at
such other places, within or without the State of Delaware, as the Board of
Directors may from time to time determine.
ARTICLE II
Shareholders
Section 1. Annual Meeting. An annual meeting of the shareholders
of the Corporation for the election of directors and for the transaction of
such other business as may properly come before the meeting shall be held
each year on such day during the month of April or May, and at such time and
place, as may be fixed from time to time by the Board of Directors of the
Corporation.
Section 2. Special Meetings. Special meetings of the shareholders
of the Corporation for any purpose or purposes may be called at any time by
the Board of Directors or by a committee of the Board of Directors which has
been duly designated by the Board of Directors and whose powers and
authority, as provided in a resolution of the Board of Directors or in these
Bylaws, include the power to call such meetings, but such special meetings
may not be called by any other person or persons; provided, however, that if
and to the extent that any special meeting of shareholders may be called by
any other person or persons by the terms of any series of Preferred Stock
then outstanding, then such special meeting may also be called by the person
or persons, in the manner, at the times, and for the purposes so specified.
Special meetings shall be held at such place within or without the State of
Delaware as may be specified in the call thereof. Business transacted at all
special meetings shall be confined to the objects stated in the call.
<PAGE>
Section 3. Notice of Meetings. Written notice of the annual
meeting of the shareholders shall be served by the Secretary, either
personally or by mail, upon each shareholder of record entitled to vote at
such meeting, at least ten days before the meeting. Written notice of any
special meeting of the shareholders shall be so served at least five days
before the meeting. If mailed, the notice of a meeting shall be directed to
a shareholder at his last known post office address. The notice of every
meeting of the shareholders shall state the purpose or purposes for which the
meeting is called and the time when and the place where it is to be held.
Failure to serve personally or by mail such notice, or any irregularity
therein, shall not affect the validity of such meeting or any of the
proceedings thereat. Such notice may be waived in writing.
Section 4. Quorum. At all meetings of the shareholders, the
presence, in person or by proxy, of the holders of record of a majority of
the shares of stock issued and outstanding, and entitled to vote thereat,
shall be necessary and sufficient to constitute a quorum for the transaction
of business, except as otherwise provided by law, by the Certificate of
Incorporation, or by these Bylaws. In the absence of a quorum, the holders
of record of a majority of the shares of stock present in person or by proxy,
and entitled to vote thereat, or if no such shareholder is present in person
or by proxy, any officer entitled to preside at, or act as secretary of, such
meeting, without notice other than by announcement at the meeting, may
adjourn the meeting from time to time, for a period of not more than thirty
days at any one time until a quorum shall attend. At any such adjourned
meeting at which a quorum shall be present in person or by proxy, any
business may be transacted that might have been transacted at the meeting as
originally called.
Section 5. Voting. At each meeting of the shareholders, except as
may be provided by the Certificate of Incorporation, as amended, or in a
certificate filed by the Corporation pursuant to Section 151(g) of the
Delaware General Corporation Law, each shareholder entitled to vote at such
meeting shall be entitled to one vote for each share of stock standing in his
name in the stock ledger of the Corporation and may vote either in person or
by proxy, but no proxy shall be voted after three years from its date unless
such proxy provides for a longer period. Every proxy must be executed in
writing by the shareholder or by his duly authorized attorney and dated, but
need not be sealed, witnessed, or acknowledged.
At each meeting of the shareholders, if there shall be a quorum, the vote of
the holders of a majority of the shares of stock present in person or by
proxy, and entitled to vote thereat, shall decide all matters brought before
such meeting, except as otherwise provided by law, by the Certificate of
Incorporation, or by these Bylaws.
Upon demand of any shareholder entitled to vote at a meeting of the
shareholders or upon the direction of the presiding officer at such meeting,
the vote upon any matter brought before such meeting shall be by ballot; but
otherwise no such vote need be by ballot except as is provided in Article II,
Section 10, of these Bylaws.
<PAGE>
Section 6. Presiding Officer and Secretary. At all meetings of
the shareholders, the Chairman of the Board of Directors, or in his absence
the President of the Corporation, or in his absence a Vice President, or if
none be present, the appointee of the meeting, shall preside. The Secretary
of the Corporation, or in his absence an Assistant Secretary, or if none be
present, the appointee of the presiding officer of the meeting, shall act as
secretary of the meeting.
Section 7. Inspectors of Election. At each meeting of the
shareholders at which any matter brought before the meeting is to be voted
upon by ballot, the presiding officer of such meeting may, and if so required
by Article II, Section 10, of the Bylaws shall, appoint two persons, who need
not be shareholders, to act as Inspectors of Election at such meeting. The
Inspectors so appointed, before entering on the discharge of their duties,
shall take and subscribe an oath or affirmation faithfully to execute the
duties of Inspectors at such meeting with strict impartiality and according
to the best of their ability; and thereupon the Inspectors shall take charge
of the polls and after the balloting shall canvass the votes and determine in
accordance with law, and make a certificate to the Corporation of, the
results of the vote taken. No director or candidate for the office of
director shall be appointed an Inspector.
Section 8. Nomination of Director Candidates and Other Shareholder
Proposals. Nominations of candidates for election to the Board of Directors
of the Corporation or any other matters to be considered at any meeting of
the shareholders called for election of directors or for the consideration of
any other matters (an "Election Meeting") may be made only by or at the
direction of the Board of Directors or by a shareholder entitled to vote at
such Election Meeting. All such nominations, or any other proposals, except
those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the Secretary of the Corporation. To
be timely, any such notice must be received at the principal executive
offices of the Corporation not less than sixty days prior to the date of the
Election Meeting and must set forth (i) the name, age, business address and
residence address, and the principal occupation or employment of any nominee
proposed in such notice, (ii) the name and address of the shareholder giving
the notice as the same appears in the Corporation's stock ledger, (iii) the
number of shares of capital stock of the Corporation which are beneficially
owned by any such nominee and by such shareholder, (iv) such other
information concerning any such nominee as would be required, under the rules
of the Securities and Exchange Commission, in a proxy statement soliciting
proxies for the election of such nominee, and (v) a description of any other
matter proposed to be voted upon at the Election Meeting. Such notice must
also include a signed consent of each such nominee to serve as a director of
the Corporation, if elected.
If the presiding officer of an Election Meeting determines that a director
nomination, or any other proposal, was not made in accordance with the
foregoing procedures, such nomination or other proposal shall be void and
shall be disregarded for all purposes.
<PAGE>
Section 9. List of Shareholders. At least ten days prior to every
election of directors, a complete list of the shareholders entitled to vote
at such election, arranged in alphabetical order and indicating the number of
voting shares held by each, shall be prepared and certified by the Secretary
or an Assistant Secretary. Such list shall be filed at the place where the
election is to be held and shall at all times during the usual hours for
business, and during the whole time of said election, be open to the
examination of any shareholder.
Section 10. Determination of Contested Elections. In the event
that there are more candidates for election to the Board of Directors at a
meeting of the shareholders than there are directors to be elected at such
meeting (a "Contested Election"), the vote for election of directors shall be
by ballot, and two Inspectors of Election for such meeting shall be appointed
by the presiding officer of such meeting.
The nominees for election to the Board of Directors in a Contested Election
who are certified by the Inspectors as having been elected shall be deemed to
be duly elected and qualified upon the expiration of three business days
following the date of such certification, provided that in the event any
court proceedings are commenced which challenge the results of such Contested
Election, such nominees shall not be deemed to be duly elected and qualified
until all such court proceedings, including appeals, shall have been finally
concluded.
ARTICLE III
Directors
Section 1. Number/Terms of Office. Except as provided by law or
by the Certificate of Incorporation, or by these Bylaws, the powers,
business, property, and affairs of the Corporation shall be exercised and
managed by a Board of nine directors. The number of directors may be altered
from time to time by an amendment of these Bylaws as hereinafter provided,
but no reduction in the number of directors shall affect any director whose
term of office shall not have expired. No director need be a shareholder.
The directors shall be divided into three classes as follows:
Class I -- three members
Class II -- three members
Class III -- three members
The term of office of directors of Class I shall expire at the 1996 annual
meeting of shareholders; the term of office of directors of Class II shall
expire at the 1997 annual meeting of shareholders; and the term of office of
directors of Class III shall expire at the 1998 annual meeting of
shareholders. At each annual meeting of shareholders, directors of the class
whose term then expires shall be elected for a full term of three years to
<PAGE>
succeed the directors of such class so that the term of office of the
directors of one class shall expire in each year, provided that nothing
herein shall be construed to prevent (a) the election of a director to
succeed himself, (b) the election of a director for the remainder of an
unexpired term in the class of directors to which he is elected, and (c)
amendment of the Bylaws to increase or decrease the number of directors.
Notwithstanding any other provision of these Bylaws, each director shall
continue in office until his successor shall have been duly elected and shall
qualify, or until his earlier resignation or removal in the manner provided
in these Bylaws, or death.
Section 2. Election of Directors/Vacancies. The members of each
class of directors shall be elected at the annual meeting of the shareholders
at which the term of office of such class expires, as provided herein. If
for any reason any annual election of directors shall not be held on the day
designated by these Bylaws, the directors shall cause such election to be
held as soon thereafter as conveniently may be.
Newly created directorships resulting from any increase in the authorized
number of directors and vacancies in the Board of Directors from death,
resignation, retirement, disqualification, removal from office, or other
cause, shall be filled by a majority vote of the directors then in office;
and directors so chosen shall hold office for a term expiring at the annual
meeting at which the term of the class to which they shall have been elected
expires. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
Subject to the rights of the holder of any series of Preferred Stock then
outstanding, (a) any director, or the entire Board of Directors, may be
removed at any time, but only for cause; and (b) the affirmative vote of the
holders of 75 percent of the voting power of all of the stock of the
Corporation entitled to vote in the election of directors shall be required
to remove a director from office. The shareholders of the Corporation are
expressly prohibited from cumulating their votes in any election of directors
of the Corporation.
Section 3. Resignations. Any director may resign from his office
at any time by delivering his resignation in writing to the Corporation; and
the acceptance of such resignation, unless required by the terms thereof,
shall not be necessary to make such resignation effective.
Section 4. Meetings. The Board of Directors may hold its meetings
in such place or places within or without the State of Delaware as the Board
from time to time by resolution may determine or as shall be specified in the
respective notices or waivers of notice thereof; and the directors may adopt
such rules and regulations for the conduct of their meetings and the
management of the Corporation, not inconsistent with these Bylaws, as they
may deem proper. An annual meeting of the Board for the election of officers
shall be held within three days following the day on which the annual meeting
of the shareholders for the election of directors shall have been held. The
<PAGE>
Board of Directors, from time to time by resolution, may fix a time and place
(or varying times and places) for the annual and other regular meetings of
the Board provided that, unless a time and place is so fixed for any annual
meeting of the Board, the same shall be held immediately following the annual
meeting of the shareholders at the same place at which such meeting shall
have been held. No notice of the annual or other regular meetings of the
Board need be given. Other meetings of the Board of Directors shall be held
whenever called by the Chairman of the Board or by any two of the directors
for the time being in office; and the Secretary shall give notice of each
such meeting to each director by mailing the same not later than the third
day before the meeting, or personally, or by telegraphing, cabling, or
telephoning, the same not later than two hours before the meeting. No notice
of a meeting need be given if all the directors are present in person. Any
business may be transacted at any meeting of the Board of Directors, whether
or not specified in a notice of the meeting.
Section 5. Quorum. A majority of the total number of directors
constituting the whole Board shall constitute a quorum for the transaction of
business. If there be less than a quorum at any meeting of the Board, a
majority of those present (or if only one be present, then that one) may
adjourn the meeting from time to time; and no further notice thereof need be
given other than announcement at the meeting which shall be so adjourned.
The act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by law or by the Certificate of Incorporation
or by these Bylaws.
Section 6. Compensation of Directors. The Board of Directors
shall have the authority to fix the compensation of the directors. A
director may serve the Corporation in other capacities and receive
compensation therefor.
Section 7. Indemnification of Directors and Officers. (a) Each
person who was or is a party or is threatened to be made a party to or is
involved in any action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (hereinafter a "proceeding"), by reason of
the fact that he, or a person of whom he is the legal representative, is or
was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee, or agent of
another corporation or of a partnership, joint venture, trust, or other
enterprise, including service with respect to employee benefit plans, shall
be indemnified and held harmless by the Corporation to the fullest extent
permitted by the laws of Delaware as the same now or may hereafter exist
(but, in the case of any change, only to the extent that such change permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such change) against all costs,
charges, expenses, liabilities, and losses (including attorneys' fees,
judgments, fines, ERISA excise taxes, or penalties and amounts paid or to be
paid in settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure
<PAGE>
to the benefit of his heirs, executors, and administrators. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition upon
receipt by the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately
be determined that the director or officer is not entitled to be indemnified
under this section or otherwise. The Corporation may, by action of its Board
of Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification
of directors and officers.
(b) If a claim under subsection (a) of this Section is not paid in full by
the Corporation within thirty days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and, if successful
in whole or in part, the claimant shall also be entitled to be paid the
expense of prosecuting such claim. It shall be a defense to any action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the
required undertaking has been tendered to the Corporation) that the claimant
has failed to meet a standard of conduct which makes it permissible under
Delaware law for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its shareholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant
is permissible in the circumstances because he has met such standard of
conduct, nor an actual determination by the Corporation (including its Board
of Directors, independent legal counsel, or its shareholders) that the
claimant has not met such standard of conduct, nor the termination of any
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall be a defense to the action or create a
presumption that the claimant has failed to meet the required standard of
conduct.
(c) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Section shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of the Certificate of
Incorporation, Bylaw, agreement, vote of shareholders or disinterested
directors, or otherwise.
(d) The Corporation may maintain insurance at its expense to protect itself
and any director, officer, employee, or agent of the Corporation or another
corporation, partnership, joint venture, trust, or other enterprise against
any expense, liability, or loss whether or not the Corporation would have the
power to indemnify such person against such expense, liability, or loss under
Delaware law.
(e) To the extent that any director, officer, employee, or agent of the
<PAGE>
Corporation is by reason of such position, or a position with another entity
at the request of the Corporation, a witness in any proceeding, he shall be
indemnified against all costs and expenses actually and reasonably incurred
by him or on his behalf in connection therewith.
(f) The Corporation may enter into indemnity agreements with the persons who
are members of its Board of Directors from time to time, and with such
officers, employees, and agents as the Board may designate, indemnity
agreements providing in substance that the Corporation shall indemnify such
persons to the fullest extent permitted by the laws of Delaware.
(g) Any amendment, repeal, or modification of any provision of this Section
by the shareholders or the Directors of the Corporation shall not adversely
affect any right or protection of a director or officer of the Corporation
existing at the time of such amendment, repeal, or modification.
Section 8. Committees. The Board of Directors may, by resolution
or resolutions, passed by a majority of the whole Board, from time to time
designate an Executive Committee and such other committee or committees as it
may determine, each committee to be headed by a chairman who shall be a
member of the Board of Directors and elected by the Board of Directors. The
committee or committees shall exercise only such powers of the Board of
Directors as are specifically provided in said resolution or resolutions.
The chairman of the Executive Committee, if any, shall report to the Board at
its meetings upon the affairs of the Corporation.
ARTICLE IV
Officers and Agents
Section 1. General Provisions. The officers of the Corporation
shall be a President, a Treasurer, and a Secretary, and may include a
Chairman of the Executive Committee, one or more Vice Presidents, any of
which may be an Executive Vice President, one or more Assistant Treasurers,
and one or more Assistant Secretaries. The Chairman of the Board of
Directors and the President shall be chosen from among the directors. Any
two offices, except those of President and Vice President, may be held by the
same person; but no officer shall execute, acknowledge, or verify any
instrument in more than one capacity if such instrument is required by law or
by these Bylaws to be executed, acknowledged, or verified by any two or more
officers. Each of such officers shall serve until the annual meeting of the
Board of Directors next succeeding his appointment and until his successor
shall have been chosen and shall have qualified. The Board of Directors may
appoint such other officers, agents, and employees as it may deem necessary
or proper, who shall respectively have such authority and perform such duties
as may from time to time be prescribed by the Board of Directors. All
officers, agents, and employees appointed by the Board of Directors shall be
subject to removal at any time by the affirmative vote of a majority of the
whole Board. Other agents and employees may be removed at any time by the
<PAGE>
Board of Directors, by the officer appointing them, or by any other superior
officer upon whom such power of removal may be conferred by the Board of
Directors. The salaries of the officers of the Corporation shall be fixed by
the Board of Directors, but this power may be delegated to any officer.
Section 2. The Chairman of the Board of Directors. The Chairman
of the Board of Directors shall preside at all meetings of the shareholders
and of the Board of Directors of the Corporation. At each annual meeting of
the shareholders, he shall present a statement of the business of the
Corporation for the preceding year and a report of its financial condition.
Section 3. The President. The President shall be the Chief
Executive Officer of the Corporation. He shall have general and active
supervision of its business and affairs, and general charge of its property
and employees, subject, however, to the control of the Board of Directors.
He shall see that all resolutions and orders of the Board of Directors or of
any committee thereof are carried into effect. He shall have power in the
name of the Corporation and on its behalf to execute any and all deeds,
mortgages, contracts, agreements, and other instruments in writing, and shall
have such other powers as may be assigned to him by the Board of Directors.
He shall have full power and authority on behalf of the Corporation to
execute any shareholder's consent and to attend and vote in person or by
proxy at any meeting of shareholders of any corporation in which the
Corporation may own stock, and at any such meeting shall possess and may
exercise any and all rights and powers incident to the ownership of such
stock and which, as the owner thereof, the Corporation might have possessed
and exercised if present.
Section 4. Vice Presidents. Each Vice President shall have such
powers and perform such duties as the Board of Directors, Chairman of the
Board, or the President may from time to time prescribe, and shall perform
such other duties as may be prescribed in these Bylaws. In the absence or
inability to act of the Chairman of the Board or the President, the Vice
President next in order as designated by the Board of Directors or, in the
absence of such designation, senior in length of service in such capacity,
shall perform all the duties and may exercise any of the powers of the
President, subject to the control of the Board of Directors. The performance
of any duty by a Vice President shall be conclusive evidence of his power to
act.
Section 5. The Treasurer. The Treasurer shall have the care and
custody of all funds and securities of the Corporation which may come into
his hands and shall deposit the same to the credit of the Corporation in such
bank or banks or other depositary or depositories as the Board of Directors
may designate. He may endorse all commercial documents requiring
endorsements for or on behalf of the Corporation and may sign all receipts
and vouchers for payments made to the Corporation. He shall render an
account of his transactions to the Board of Directors as often as they shall
require the same and shall at all reasonable times exhibit his books and
accounts to any director; shall cause to be entered regularly in books kept
for that purpose full and accurate account of all monies received and paid by
<PAGE>
him on account of the Corporation; and shall have such further powers and
duties as are incident to the position of Treasurer, subject to the control
of the Board of Directors. He may be required by the Board of Directors to
give a bond for the faithful discharge of his duties in such sum and with
such surety as the Board may require.
Section 6. The Secretary. The Secretary shall keep the minutes of
all meetings of the Board of Directors and of the shareholders and shall
attend to the giving and serving of all notices of the Corporation. He shall
have custody of the seal of the Corporation and shall affix the seal to all
certificates of shares of stock of the Corporation and to such other papers
or documents as may be proper and, when the seal is so affixed, he shall
attest the same by his signature whenever required. He shall have charge of
the stock certificate book, transfer book, and stock ledger, and such other
books and papers as the Board of Directors may direct. He shall, in general,
perform all the duties of Secretary, subject to the control of the Board of
Directors.
Section 7. Assistant Treasurers. In the absence or inability of
the Treasurer to act, any Assistant Treasurer may perform all the duties and
exercise all of the powers of the Treasurer, subject to the control of the
Board of Directors. The performance of any such duty shall be conclusive
evidence of his power to act. Any Assistant Treasurer shall also perform
such other duties as the Secretary or the Board of Directors may from time to
time assign to him.
Section 8. Assistant Secretaries. In the absence or inability of
the Secretary to act, any Assistant Secretary may perform all the duties and
exercise all the powers of the Secretary, subject to the control of the Board
of Directors. The performance of any such duty shall be conclusive evidence
of his power to act. Any Assistant Secretary shall also perform such other
duties as the Secretary or the Board of Directors may from time to time
assign to him.
Section 9. Other Officers. Other officers shall perform such
duties and have such powers as may from time to time be assigned to them by
the Board of Directors.
Section 10. Delegation of Duties. In case of the absence of any
officer of the Corporation, or for any other reason that the Board may deem
sufficient, the Board may confer, for the time being, the powers or duties,
or any of them, of such officer upon any other officer, or upon any director.
<PAGE>
ARTICLE V
Capital Stock
Section 1. Certificates for Shares. Certificates for shares of
stock of the Corporation certifying the number and class of shares owned
shall be issued to each shareholder in such form, not inconsistent with the
Certificate of Incorporation and these Bylaws, as shall be approved by the
Board of Directors. The certificates for the shares of each class shall be
numbered and registered in the order in which they are issued and shall be
signed by the Chairman of the Board of Directors or the President or a Vice
President and by the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer; and the seal of the Corporation shall be affixed
thereto. However, where any such certificate is signed by a transfer agent
and by a registrar of the Corporation, other than the Corporation itself or
its employee, the signature of either the transfer agent or the registrar and
of any such corporate officer or officers and the seal of the Corporation
upon such certificate may be facsimiles, engraved, or printed. All
certificates exchanged or returned to the Corporation shall be cancelled.
Section 2. Transfer of Shares of Stock. Transfers of shares shall
be made only upon the books of the Corporation by the holder, in person or by
attorney lawfully constituted in writing, and on the surrender of the
certificate or certificates for such shares properly assigned. The Board of
Directors shall have the power to make all such rules and regulations, not
inconsistent with the Certificate of Incorporation and these Bylaws, as they
may deem expedient concerning the issue, transfer, and registration of
certificates for shares of stock of the Corporation.
Section 3. Lost, Stolen, or Destroyed Certificates. The Board of
Directors, in their discretion, may require the owner of any certificate of
stock alleged to have been lost, stolen, or destroyed, or his legal
representatives, to give the Corporation a bond in such sum as they may
direct, to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft, or destruction of any such
certificate, as a condition of the issue of a new certificate of stock in the
place of any certificate theretofore issued alleged to have been lost,
stolen, or destroyed. Proper and legal evidence of such loss, theft, or
destruction shall be procured for the Board, if required. The Board of
Directors in their discretion may refuse to issue such new certificate, save
upon the order of some court having jurisdiction in such matters.
Section 4. Record Date. The Board of Directors may fix in advance
a date, not more than sixty days nor less than ten days preceding the date of
any meeting of the shareholders and not more than sixty days preceding the
date for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of capital
stock shall go into effect, as a record date for the determination of the
shareholders entitled to notice of, and to vote at, any such meeting and any
adjournment thereof, or entitled to receive payment of any such dividend, or
<PAGE>
to any such allotment of rights, or to exercise the rights in respect of any
such change, conversion or exchange of capital stock; and in such case such
shareholders and only such shareholders as shall be shareholders of record on
the date so fixed shall be entitled to such notice of, and to vote at, such
meeting and any adjournment thereof, or to receive payment of such dividend,
or to receive such allotment of rights, or to exercise such rights, as the
case may be, notwithstanding any transfer of any stock on the books of the
Corporation after any such record date fixed as aforesaid.
Section 5. Maintenance and Inspection of Stock Ledger. The
original or a duplicate stock ledger containing a list of the shareholders
shall be maintained at the principal office or place of business of the
Corporation and shall upon written demand under oath stating the purpose
thereof, be available for inspection by any shareholder of record for any
proper purpose in person or by attorney or other agent during the usual hours
of business. A proper purpose shall mean a purpose reasonably related to
such person's interest as a shareholder. In every instance where an attorney
or other agent shall be the person who seeks the right to inspection, the
demand under oath shall be accompanied by a power of attorney or such other
writing which authorizes the attorney or other agent to so act on behalf of
the shareholder. The demand under oath shall be directed to the Corporation
at its registered office in Delaware or at its principal place of business.
Section 6. Record Ownership. The Corporation shall be entitled to
recognize the exclusive right of a person registered as such in the stock
ledger of the Corporation as the owner of shares of the Corporation's stock
to receive dividends and to vote as such owner and shall not be bound to
recognize any equitable or other claim to or interest in such shares on the
part of any other person, whether or not the Corporation shall have express
or other notice thereof, except as otherwise provided by law.
ARTICLE VI
Seal
The seal of the Corporation shall consist of a flat-faced, circular
die with the name of the Corporation, the year of its incorporation, and the
words "Corporate Seal" and "Delaware" inscribed thereon.
ARTICLE VII
Waiver
Whenever any notice whatever is required to be given by statute, or
under the provisions of the Certificate Of Incorporation or Bylaws of this
Corporation, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein,
<PAGE>
shall be deemed equivalent thereto.
ARTICLE VIII
Checks, Notes, Drafts, Etc.
Checks, notes, drafts, acceptances, bills of exchange, and other
orders or obligations for the payment of money shall be signed by such
officer or officers or person or persons as the Board of Directors shall from
time to time determine.
ARTICLE IX
Amendments
These Bylaws may be amended or repealed and new Bylaws adopted by
the affirmative vote of a majority of the total number of directors (fixed by
the Bylaws as in effect immediately prior to such vote) or by the affirmative
vote of the holders of 75 percent of the voting power of the Corporation's
stock outstanding and entitled to vote thereon. Such Bylaws may contain any
provision for the regulation and management of the affairs of the Corporation
and the rights or powers of its shareholders, directors, officers, or
employees not inconsistent with the laws of the State of Delaware.
Exhibit 5
May 3, 1995
Thomas Industries Inc.
4360 Brownsboro Road
Suite 300
Louisville, Kentucky 40232-5120
RE: 600,000 Shares of Common Stock (par value
$1.00) including Preferred Share Purchase
Rights for Thomas Industries Inc.'s 1995
Incentive Stock Plan (the "Plan")
Gentlemen:
We have acted as counsel for Thomas Industries Inc. (the
"Company") in connection with the preparation and filing of a
Registration Statement on Form S-8 (the "Registration Statement")
for the registration under the Securities Act of 1933, as
amended, of 600,000 shares of the Company's Common Stock, $1.00
par value (the "Common Stock"), which may be purchased pursuant
to the Plan and 600,000 Preferred Share Purchase Rights which
currently are attached to, and trade with, the Common Stock.
We have examined or considered:
1. A copy of the Company's Restated Certificate of
Incorporation.
2. The By-Laws of the Company.
3. Telephonic confirmation of the Secretary of State
of Delaware, as of a recent date, as to the good standing of
the Company in that state.
4. A copy of resolutions duly adopted by the Board of
Directors of the Company relating to the Plan.
5. A copy of the Plan.
In addition to the examination outlined above, we have
conferred with various officers of the Company and have
ascertained or verified, to our satisfaction, such additional
facts as we deemed necessary or appropriate for the purposes of
this opinion.
Based on the foregoing, we are of the opinion that:
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware.
(b) All legal and corporate proceedings necessary for
the authorization, issuance and delivery of the shares of
Common Stock under the Plan have been duly taken, and the
related Common Stock, upon acquisition pursuant to the terms
of the Plan, and the Preferred Share Purchase Rights, will
be duly authorized, legally and validly issued, fully paid
and nonassessable.
We hereby consent to all references to our Firm in the
Registration Statement and to the filing of this opinion by the
company as an Exhibit to the Registration Statement.
Very truly yours,
McDermott, Will & Emery
WJQ/bjs
Exhitibt 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Thomas Industries Inc.:
We consent to the use of our reports incorporated herein by
reference.
Our reports refer to a change in the method of accounting for
postretirement benefits, income taxes and certain inventories in
1993.
/s/ KMPG Peat Markwick LLP
KMPG PEAT MARWICK LLP
Louisville, Kentucky
May 3, 1995
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Thomas Industries Inc.
1995 Incentive Stock Plan of our report dated February 11, 1993,
with respect to the consolidated financial statements and
schedule of Thomas Industries Inc. included or incorporated by
reference in its Annual Report (Form 10-K) for the year ended
December 31, 1994, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young
ERNST & YOUNG LLP
May 3, 1995
