As
filed with the Securities and Exchange Commission on August 8,
2008
Registration
No. 333 - ____
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
DREW
INDUSTRIES INCORPORATED
(Exact
name of registrant as specified in its charter)
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Delaware
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13-3250533
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification No.)
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200
Mamaroneck Avenue
White
Plains, New York 10601
(914)
428-9098
(Address
of principal executive offices) (Zip Code)
Drew
Industries Incorporated
2002
Equity Award and Incentive Plan, as Amended
(Full
title of the plan)
Leigh
J.
Abrams
Chief
Executive Officer
Drew
Industries Incorporated
200
Mamaroneck Avenue
White
Plains, New York 10601
(914)
428-9098
(name
and address of agent for service)
(Telephone
number, including
area code, of agent for service)
Copies
to:
Brian
Brodrick, Esq.
Phillips
Nizer LLP
666
Fifth
Avenue
New
York,
New York 10103
(212)
977-9700
| Large accelerated filer |
¨ |
Accelerated filer |
x |
| Non-accelerated filer |
¨ |
Smaller reporting company |
¨ |
(Do
not check if a smaller reporting company)
CALCULATION
OF REGISTRATION
FEE
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Title
of Each Class of
Securities
to be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering Price Per Share
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
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Common
Stock, $.01 par value
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500,000
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$ 15.05
(1)(2)
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$ 7,525,000 (2)
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$
295.74
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| (1) |
Used
only for purpose of calculating the amount of the registration fee.
Pursuant to Rule 416 of the Securities Act of 1933, as amended, this
Registration Statement also includes additional shares of common
stock
issuable upon stock splits, stock dividends or similar
transactions.
|
| (2) |
The
registration fee is based upon the average of the high and low prices
of
the shares of Common Stock as reported on the New York Stock Exchange
on
August 1, 2008, as prescribed by Rule
457(c).
|
EXPLANATORY
NOTE
This
Registration Statement on Form S-8 registers an additional 500,000 shares of
Common Stock of Drew Industries Incorporated, a Delaware corporation (the
“Company”) to be granted under the Drew Industries Incorporated, 2002 Equity
Award and Incentive Plan, as amended (the “Plan”). Pursuant to General
Instruction E to Form S-8, the contents of the Company’s Registration Statements
on Form S-8 relating to the Plan filed on June 25, 2002 (Registration No.
333-91174) and March 14, 2007 (Registration No. 333-141276) are hereby
incorporated by reference.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation
of Documents by Reference.
The
following documents, which have been filed by Drew Industries Incorporated
(the
“Registrant”) with the Securities and Exchange Commission (the “Commission”),
are hereby incorporated by reference in this Registration
Statement:
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1.
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Annual
Report on Form 10-K, for the fiscal year ended December 31,
2007.
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2.
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All
other reports filed by the Registrant pursuant to Section 13(a) or
15(d)
of the Securities Exchange Act of 1934, as amended (the “Securities
Exchange Act”), since the end of the fiscal year covered by the audited
financial statements described in (1)
above.
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3.
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The
description of the Common Stock contained in the Registrant’s Registration
Statement on Form 8-A filed pursuant to Section 12 of the Securities
Exchange Act of 1934, and any amendment or report filed for the purpose
of
updating such description.
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All
documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 and
15(d)
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
subsequent to the date of the Registration Statement and 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 into this Registration Statement and
to
be a part hereof from the respective dates of filing such
documents.
The
Registrant will provide without charge to any participant in the Drew Industries
Incorporated 2002
Equity
Award and Incentive Plan, as amended (the “Plan”), at the request of such
person, a copy of any or all of the foregoing documents incorporated herein
by
reference (other than exhibits to such documents). Requests should be directed
by mail to Harvey F. Milman, Secretary, Drew Industries Incorporated, 200
Mamaroneck Avenue, White Plains, New York 10601, by phone at (914) 428-9098
or by e-mail with “Secretary” in the subject to
drew@drewindustries.com.
Item
4. Description
of Securities.
Not
Applicable.
Item
5. Interests
of Named Experts and Counsel.
Certain
matters with respect to the validity of the Registrant’s Common Stock to be
issued pursuant
to the
Plan are being passed upon for the Registrant by Phillips Nizer LLP, New York,
New York. As of the date hereof, Harvey F. Milman, who is of counsel to Phillips
Nizer LLP and served as the Registrant’s assistant secretary for more than five
years, and has been the Vice President-Chief Legal Officer since March 2005
and
Secretary since May 2007, beneficially owns 13,800 shares of the Registrant’s
Common Stock, including options to purchase 6,000 shares which are currently
exercisable.
Item
6. Indemnification
of Directors and Officers.
Section
145 of the Delaware General Corporation Law empowers a domestic corporation
to
indemnify any of its officers, directors, employees or agents against expenses,
including reasonable attorney’s fees, judgments, fines and amounts paid in
settlement which were actually and reasonably incurred by such person in
connection with any action, suit or similar proceeding brought against them
because of their status as officers, directors, employees or agents of the
Registrant if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Registrant and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the subject conduct was unlawful. If the claim
was
brought against any such person by or in the right of the Registrant, the
Registrant may indemnify such person for such expenses if such person acted
in
good faith and in a manner reasonably believed
by such
person to be in or not opposed to the best interests of the Registrant, except
no indemnity shall be paid if such person shall be adjudged to be liable for
negligence or misconduct unless a court of competent jurisdiction, upon
application, nevertheless permits such indemnity (to all or part of such
expenses) in view of all the circumstances.
The
Registrant’s Restated Certificate of Incorporation provides that the Registrant
may indemnify its officers, directors, employees or agents to the full extent
permitted by Section 145 of the Delaware General Corporation Law. In addition,
the Restated Certificate of Incorporation provides that no director
of the
Registrant shall be liable to the Registrant or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i)
for
any breach of the director’s duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of
the Delaware General Corporation Law, or (iv) for any transaction from which
the
director derived an improper personal benefit.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933,
as
amended (the “Act”) may be permitted to directors, officers or persons
controlling the Registrant, pursuant to the foregoing provisions, the Registrant
has been informed 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.
The
Registrant has entered into Indemnification Agreements with each of its
directors and executive officers (and the executive officers of its
subsidiaries, Kinro, Inc. and Lippert Components, Inc.). In doing so, the
Registrant incorporated into contract its existing obligations for
indemnification and advancement of indemnifiable expenses which currently are
included in the Registrant’s Restated Certificate of Incorporation and Amended
By-laws, and as provided by Section 145 of the Delaware General Corporation
Law.
Management believes that it is in the best interests of the Registrant to make
service to the Registrant more attractive to existing and prospective directors
and executive officers by virtue of the security afforded by
contract.
Item
7. Exemption
From Registration Claimed.
Not
Applicable.
Item
8. Exhibits.
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Exhibit
Nos.
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Description
of Exhibits
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5.1*
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Opinion
of Phillips Nizer LLP
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10.1+
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Drew
Industries Incorporated 2002 Equity Award and Incentive Plan, as
amended
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10.2++
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Amendment
to Drew Industries Incorporated 2002 Equity Award and Incentive Plan,
as
amended
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23.1*
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Consent
of KPMG LLP
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23.3*
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Consent
of Phillips Nizer LLP (included in Exhibit
5.1)*
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_______________
* Filed
herewith.
+ Incorporated
by reference to Exhibit 10.1 to the Form 8-K of the Registrant dated February
23, 2007.
++ Incorporated
by reference to Exhibit A to the Registrant’s definitive Proxy Statement dated
April 21, 2008.
Item
9. Undertakings.
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1.
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The
undersigned Registrant hereby
undertakes:
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(i) To
file,
during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(A) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933 (the “Securities Act”);
(B) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. 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) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
(C) 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)(A) and (a)(1)(B) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed or furnished by the Registrant pursuant
to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
(ii) That,
for
the purpose of determining any liability under 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.
(iii) 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.
(iv) That,
for
the purpose of determining liability of the Registrant under the Securities
act
to any purchaser in the initial distribution of the securities, the undersigned
Registrant undertakes that in a primary offering of securities of the
undersigned Registrant pursuant to this registration statement, regardless
of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser: (i) any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on
behalf of the undersigned Registrant or used or referred to by the undersigned
Registrant; (iii) the portion of any other free writing prospectus relating
to
the offering containing material information about the undersigned Registrant
or
its securities provided by or on behalf of the undersigned Registrant; and
(iv)
any other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
2. The
undersigned Registrant hereby undertakes that, for 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 Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section
15(d) of the Exchange Act) 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.
3. Insofar
as indemnification for liabilities arising under the Act may be permitted to
directors, officers or 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 hereunder, 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, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for the 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 White Plains, State of New York, on the 8th day
of
August, 2008.
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DREW
INDUSTRIES
INCORPORATED |
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By: |
/s/
Fredric M. Zinn |
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Fredric
M. Zinn, President |
POWER
OF ATTORNEY
Each
person whose signature appears below appoints Leigh J. Abrams and Fredric
M. Zinn and each of them, any of whom may act without the joinder of the other,
as his or her true and lawful attorneys-in-fact
and
agents, with full power of substitution and resubstitution, for him or her
and
in his or her name, place and stead, in any and all capacities, to sign any
and
all amendments (including post-effective amendments) of and supplements to
this
Registration Statement on Form S-8, and to file the same, with all exhibits
thereto, and all other documents in connection, therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite
and
necessary to be done, as fully to all intents and purposes as he might or would
do in person, hereby ratifying and confirming all that said attorney-in-fact
and
agents or any of them or their or his or her substitute and substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons in the capacities and on
the
dates indicated:
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Signature
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Title
|
Date
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/s/
Leigh J. Abrams
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Director
and Chief Executive
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August
8, 2008
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Leigh
J. Abrams
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Officer
(Principal Executive Officer)
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/s/
Fredric M. Zinn
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Director
and President
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August
8, 2008
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Fredric
M. Zinn
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/s/
Joseph S. Giordano III
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Chief
Financial Officer and
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August
8, 2008
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Joseph
S. Giordano III
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Treasurer
(Principal Financial and
Accounting
Officer)
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/s/
Edward W. Rose, III
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Chairman
of the Board
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August
8, 2008
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Edward
W. Rose, III
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And
Director |
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/s/
David L. Webster
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Director
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August
8, 2008
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David
L. Webster
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/s/
James F. Gero
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Director
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August
8, 2008
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James
F. Gero
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/s/
Frederick B. Hegi, Jr.
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Director
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August
8, 2008
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Frederick
B. Hegi, Jr.
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/s/
David A. Reed
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Director
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August
8, 2008
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David
A. Reed
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/s/
John B. Lowe, Jr.
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Director
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August
8, 2008
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John
B. Lowe, Jr.
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/s/
Jason D. Lippert
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Director
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August
8, 2008
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Jason
D. Lippert
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Exhibit
Index
|
Exhibit
Nos.
|
Description
of Exhibits
|
Page
No.
|
| |
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5.1
|
Opinion
of Phillips Nizer LLP
|
|
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23.1
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Consent
of KPMG LLP
|
|
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23.3
|
Consent
of Phillips Nizer LLP (included in Exhibit 5.1)
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