1
As filed with the Securities and Exchange Commission on April 18, 1995
Registration No. 33-______________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THORN APPLE VALLEY, INC.
(Exact name of registrant as specified in its charter)
Michigan 38-1964066
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
18700 West Ten Mile Road, Southfield, Michigan 48075
(Address of Principal Executive Offices) (Zip Code)
Thorn Apple Valley, Inc. Employee Stock Purchase Plan
(Full Title of the Plan)
Louis Glazier
Executive Vice President Finance and Administration
Thorn Apple Valley, Inc.
18700 West Ten Mile Road
Southfield, MI 48075
(Name and address of agent for service)
(810) 552-0700
(Telephone number, including area code, 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 per offering registration
registered registered share (1) price (1) fee
- -------------------------------------------------------------------------------
Common Stock, 400,000 $16.94 $6,775,000 $2,337.38
$.10 par value
per share (the
"Common Stock") (2)
- -------------------------------------------------------------------------------
(1) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), solely for the purpose of computing the
registration fee and based on the average of the high and low prices of
the Common Stock, as quoted on the NASDAQ Stock Market on April 13, 1995.
(2) In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the plan described herein.
2
PART I
INFORMATION REQUIRED IN THE SECTION 10 (A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 of the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in (a) through (e) below are incorporated by
reference in this Registration Statement on Form S-8. In addition, all
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment that
indicates that all securities 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 part hereof from the date of filing of such
documents:
(a) Registrant's Annual Report on Form 10-K for the fiscal year
ended May 27, 1994;
(b) Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 16, 1994;
(c) Registrant's Quarterly Report on Form 10-Q for the quarter
ended December 9, 1994;
(d) Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 4, 1995; and
(e) The description of Registrant's Common Stock contained in
Registrant's Registration Statement on Form S-2, filed with the
Securities and Exchange Commission on October 10, 1991,
pursuant to Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such
description.
-2-
3
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein by reference modifies or supersedes such prior statement. Any
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. INTEREST OF NAMED EXPERTS AND COUNSEL.
The legality of the securities offered hereby has been passed upon by
Honigman Miller Schwartz and Cohn, counsel to the Registrant. Members of
Honigman Miller Schwartz and Cohn own in the aggregate 600 shares of Common
Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Sections 561-571 of the Michigan Business Corporation Act,
directors and officers of a Michigan corporation may be entitled to
indemnification by the corporation against judgments, expenses, fines and
amounts paid by the director or officer in settlement of claims brought against
them by third persons or by or in the right of the corporation if those
directors and officers acted in good faith and in a manner reasonably believed
to be in, or not opposed to, the best interests of the corporation and its
shareholders.
The Registrant is obligated under its Bylaws to indemnify a present
or former director or executive officer of the Registrant, and may indemnify
any other person, to the fullest extent now or hereafter authorized or
permitted by law in connection with any actual or threatened civil, criminal,
administrative or investigative action, suit or proceeding arising out of his
or her past or future service to the Registrant, or to another corporation at
the request of the Registrant. In addition, the Articles of Incorporation of
the Registrant limit certain personal liabilities of directors of the
Registrant; provided, however, that the Articles of Incorporation do not
eliminate or limit the liability of a director for any of the following: (i) a
breach of the director's duty of loyalty to the corporation or its
shareholders; (ii) acts or omissions not in good faith or that involve
intentional misconduct or knowing violation of law; (iii) a violation of
Section 551(1) of the Michigan Business Corporation Act; (iv) a transaction
from which the director derived an improper personal benefit; or (v) an act or
omission occurring before the effective date of the Article.
The Registrant has also obtained Directors' and Officers' liability
insurance in the aggregate amount of $25 million. Subject to conditions and
limitations, the insurance covers amounts required to be paid for a claim or
claims made against directors and officers for certain "wrongful acts" in the
discharge of their duties solely in their capacity as officers or directors of
the Registrant. The coverage includes amounts as to which the Registrant may
be required or permitted by law to indemnify the directors and officers.
-3-
4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Thorn Apple Valley, Inc. Amended and Restated Employee Stock Purchase
Plan.
4.2 Registrant's Restated Articles of Incorporation (incorporated by
reference to Exhibit 3.1 to Registrant's Registration Statement on
Form S-2 Registration No. 33-43287).
4.3 Registrant's Amendment to Restated Articles of Incorporation
(incorporated by reference to Exhibit (3)(b) to Registrant's Annual
Report on Form 10-K for the fiscal year ended May 28, 1993.
4.4 Registrant's Bylaws, as amended to date (incorporated by reference to
Exhibit 3(b) to Registrant's Annual Report on Form 10-K for the
fiscal year ended May 29, 1981).
5 Opinion of Honigman Miller Schwartz and Cohn, counsel to the
Registrant, as to the legality of the shares of Common Stock being
registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Honigman Miller Schwartz and Cohn (included in the opinion
filed as Exhibit 5 to this Registration Statement).
24 Power of Attorney (included on the signature page of this
Registration Statement).
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;
(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) which,
-4-
5
individually or in the aggregate, represent a
fundamental change in the information set forth
in this Registration Statement;
(iii) to include any material information with respect
to the plan of distribution not previously
disclosed in this Registration Statement or any
material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities 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) 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, each
filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act 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 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the
Securities 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
-5-
6
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 of
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
-6-
7
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Southfield, State of Michigan, on April 13, 1995.
THORN APPLE VALLEY, INC.
By: /s/ LOUIS GLAZIER
------------------------------------------
Louis Glazier, Executive Vice President
Finance and Administration and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Louis Glazier and Joel Dorfman, or either
of them, his/her true and lawful attorneys-in-fact and agents, each with full
power of substitution for him/her and in his/her name, place and stead, in any
and all capacities, to sign any or all amendments (including without limitation
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each of 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 in and about the
premises, as fully to all intents and purposes as he/she might or could do in
person, hereby ratifying and confirming all that any said attorneys-in-fact and
agents, or his/her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
-7-
8
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Date Capacity
- --------- ---- --------
/s/ JOHN C. CANEPA 4/13/95 Director
- ---------------------------
John C. Canepa
/s/ HENRY S DORFMAN 4/13/95 Director
- ---------------------------
Henry S Dorfman
/s/ JOEL DORFMAN 4/13/95 President and Director
- --------------------------- (principal executive officer)
Joel Dorfman
/s/ BURTON D. FARBMAN 2/28/95 Director
- ---------------------------
Burton D. Farbman
/s/ LOUIS GLAZIER 4/13/95 Executive Vice President
- --------------------------- Finance and Administration and
Louis Glazier Director (principal financial and
accounting officer)
/s/ MONIEK MILBERGER 4/13/95 Director
- ---------------------------
Moniek Milberger
/s/ SEYMOUR ROBERTS 4/13/95 Director
- ---------------------------
Seymour Roberts
-8-
9
INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------ -------
4.1 Thorn Apple Valley, Inc. Amended and Restated Employee
Stock Purchase Plan.
4.2 Registrant's Restated Articles of Incorporation (incorporated
by reference to Exhibit 3.1 to Registrant's Registration
Statement on Form S-2 Registration No. 33-43287).
4.3 Registrant's Amendment to Restated Articles of Incorporation
(incorporated by reference to Exhibit (3)(b) to Registrant's Annual
Report on Form 10-K for the fiscal year ended May 28, 1993).
4.4 Registrant's Bylaws, as amended to date (incorporated by reference
to Exhibit 3(b) to Registrant's Annual Report on Form 10-K
for the fiscal year ended May 29, 1981).
5 Opinion of Honigman Miller Schwartz and Cohn, counsel to the
Registrant, as to the legality of the shares of Common Stock
being registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Honigman Miller Schwartz and Cohn (included in
the opinion filed as Exhibit 5 to this Registration Statement).
24 Power of Attorney (included on the signature page of this
Registration Statement).
-9-