SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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CAVCO INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
86-0214910
(I.R.S. Employer
Identification No.)
1001 North Central, 8th Floor
Phoenix, Arizona 85004
(Address of principal executive offices, including zip code)
CAVCO INDUSTRIES INC. STOCK INCENTIVE PLAN
(Full title of the plan)
Sean K. Nolen
Vice President, Chief Financial Officer, Secretary, and Treasurer
1001 North Central, 8th Floor
Phoenix Arizona 85004
(Name and address of agent for service)
(602) 256-6263
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<Table>
<Caption>
- -----------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities to be Amount to be Offering price Aggregate offering Amount of
registered registered per share (1) price (1) registration fee
- ------------------------- -------------- ---------------- ------------------ ----------------
Common Stock, $.01 par
value per share 550,000 shares $ 21.00 $ 11,550,000 $ 934.40
- -----------------------------------------------------------------------------------------------------------
</Table>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1), and computed on the basis of the average of
the high and low sales prices of the Common Stock included in the
NASDAQ National Market Issues Composite Transactions Report for July 2,
2002 as published by The Wall Street Journal, which was $21.00 per
share.
TABLE OF CONTENTS
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Item 4. Description of Securities
Item 5. Interests of Named Experts and Counsel
Item 6. Indemnification of Directors and Officers
Item 7. Exemption from Registration Claimed
Item 8. Exhibits
Item 9. Undertakings
EXPLANATORY NOTE
This Registration Statement is being filed to register 450,000 shares
of Cavco Common Stock to be issued under the Cavco Industries, Inc. Stock
Incentive Plan and up to a maximum of 100,000 shares of Cavco Common Stock
subject to a Restricted Stock Award Agreement with Joseph H. Stegmayer, Chairman
of the Board, President, and Chief Executive Officer of Cavco Industries, Inc.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission by Cavco
Industries, Inc. (the "Company"), as appropriate, and are incorporated herein by
reference and made a part hereof:
(a) The Company's Registration Statement on Form 10 filed with the
Commission pursuant to Section 12(g) of the Securities Exchange Act of 1934 (the
"Exchange Act") originally on April 23, 2003, as amended by Form 10/A filed with
the Commission on May 21, 2003, May 30, 2003, June 17, 2003, and June 20, 2003,
in which there is described the terms, rights, and provisions applicable to the
Cavco Common Stock, par value $0.01 per share.
(b) All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the effective date hereof
and prior to the filing of a post-effective amendment hereto that indicates that
all securities offered hereby have been sold or that deregisters all such
securities then remaining unsold, shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of filing of such documents. Any
statement contained herein or in any 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 which 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 to
constitute a part of this Registration Statement, except as so modified or
superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
David A. Greenblatt has rendered a legal opinion, filed with the
Exhibits for Cavco as Exhibit 5, with respect to the legality of the securities
registered hereby. Mr. Greenblatt is Counsel to the Company. As of July 7, 2003,
Mr. Greenblatt owned 0 (zero) shares of Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Delaware General Corporation Law
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding 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 corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful.
Section 145(b) of the DGCL provides that a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit 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
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonable entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 145(c) of the DGCL provides that to the extent that a present
or former director or officer of a corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith.
Section 145(d) of the DGCL provides that any indemnification under
subsections (a) and (b) of section 145 (unless ordered by a court) shall be made
by the corporation only as authorized in the specific case upon a determination
that indemnification of the present or former director,
officer, employee or agent is proper in the circumstances because such person
has met the applicable standard of conduct set forth in subsections (a) and (b)
of this section. Such determination shall be made, with respect to a person who
is a director or officer at the time of such determination, (1) by a majority
vote of the directors who are not parties to such action, suit or proceedings,
even though less than a quorum, or (2) by a committee of such directors
designated by majority vote of such directors, even though less than a quorum,
or (3) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (4) by the stockholders.
Section 145(e) of the DGCL provides that expenses (including attorneys'
fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the corporation as authorized in
this section. Such expenses (including attorneys' fees) incurred by former
directors and officers or other employees and agents may be so paid upon such
terms and conditions, if any, as the corporation deems appropriate.
Restated Certificate of Incorporation
The Restated Certificate of Incorporation of the Company provides that
a director of the Company shall not be personally liable to the Company 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
Company 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 DGCL, as the same exists or as such provision may hereafter
be amended, supplemented or replaced, or (iv) for a transaction from which the
director derived an improper personal benefit. If the DGCL is amended to
authorize the further elimination or limitation of the personal liability of
directors, then the liability of a director of the Company, in addition to the
limitation on personal liability described above, shall be limited to the
fullest extent permitted by the DGCL, as so amended. Any repeal or modification
of such provision of the Certificate of Incorporation by the stockholders of the
Company shall be prospective only, and shall not adversely affect any limitation
on the personal liability of a director of the Company existing at the time of
such repeal or modification.
Restated Bylaws
Article V of the Restated Bylaws of the Company provides that any
officer or director of the Company who is, or is threatened to be made, a
witness in or a party to any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative, by reason
of his service as a director, officer, employee, agent or fiduciary of the
Company or of any other corporation, partnership, limited liability company,
association, joint venture, trust, employee benefit plan or other enterprise
that such person is or was serving at the request of the Company shall, to the
fullest extent permitted by applicable law, as in effect on the date of
effectiveness of the Company's Bylaws, and to such greater extent as applicable
law may thereafter permit, indemnify and hold such officer or director harmless
from and against any and all losses, liabilities, claims, damages and all
expenses (including all reasonable attorneys' fees) arising out of any event or
occurrence related to the fact that such person is or was a director or officer
of the Company or is or was serving in another capacity at the request of the
Company.
The rights of indemnification and advancement of expenses as provided
by Article V of the Company's Restated Bylaws shall not be deemed exclusive of
any other rights to which such person may at any time be entitled to under
applicable law, the Restated Certificate of Incorporation of the Company, the
Restated Bylaws, any agreement, a vote of stockholders or a resolution of
directors, or otherwise. No amendment, alteration or repeal of Article V or any
provision thereof shall be effective as to any such person for acts, events and
circumstances that occurred, in whole or in part, before such amendment,
alteration or repeal. The provisions of Article V shall continue as to any
person whose status as a director, officer, employee, agent or fiduciary of the
Company or of any other corporation, partnership, limited liability company,
association, joint venture, trust, employee benefit plan or other enterprise
that such person is or was serving at the request of the Company has ceased for
any reason and shall inure to the benefit of his heirs, executors and
administrators. Neither the provisions of Article V nor those of any agreement
to which the Company is a party shall be deemed to preclude the indemnification
of any person who is not specified in Article V as having the right to receive
indemnification or is not a party to any such agreement, but whom the Company
has the power or obligation to indemnify under the provisions of the DGCL. The
right to be indemnified or to the advancement or reimbursement of expenses (i)
is a contract right based upon good and valuable consideration, pursuant to
which any person entitled to such indemnification may sue as if these provisions
were set forth in a separate written contract between such person and the
Company, (ii) is and is intended to be retroactive and shall be available as to
events occurring prior to the adoption of these provisions and (iii) shall
continue after any rescission or restrictive modification of such provisions as
to events occurring prior thereto.
Insurance
The Company may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the Company or another
corporation, partnership, joint venture, trust or other enterprise against any
such expense, liability or loss, whether or not the Company would have the power
to indemnify such person against such expense, liability or loss under
applicable law. The Company shall not be liable under Article V of the Company's
Restated Bylaws to make any payment of amounts otherwise indemnifiable
thereunder if, but only to the extent that, any person has otherwise actually
received such payment under any insurance policy, contract, agreement or
otherwise. In the event of any payment thereunder, the Company shall be
subrogated to the extent of such payment to all the rights of recovery of such
person, who shall execute all papers required and take all action reasonably
requested by the Company to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such
rights.
ITEM 7. EXEMPTION FROM REGISTRATION.
Not applicable.
ITEM 8. EXHIBITS.
The information required by this Item 8 is set forth in the Index to
Exhibits accompanying this Registration Statement.
ITEM 9. UNDERTAKINGS.
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 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% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement;
(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 (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission 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 of 1933 (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 which remain unsold at the termination of
the offering.
(4) 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 (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 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.
(5) 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 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 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 Securities 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 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 Dallas, State of Texas, on July 7, 2003.
CAVCO INDUSTRIES, INC.
Registrant
By: /s/ JOSEPH H. STEGMAYER
----------------------------
Joseph H. Stegmayer
Chairman of the Board, President
and Chief Executive Officer
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 date indicated.
<Table>
<Caption>
Signature Title
/s/ JOSEPH H. STEGMAYER
- ------------------------------------ Chairman of the Board, President and Chief July 7, 2003
Joseph H. Stegmayer Executive Officer and Director (Principal
Executive Officer)
/s/ SEAN K. NOLEN
- ------------------------------------ Vice President, July 7, 2003
Sean K. Nolen Chief Financial Officer, Secretary, and
Treasurer
(Principal Financial Officer)
/s/ LAURENCE E. HIRSCH Director July 7, 2003
- ------------------------------------
Laurence E. Hirsch
</Table>
INDEX TO EXHIBITS
CAVCO CORPORATION
AND SUBSIDIARIES
<Table>
<Caption>
Exhibit
Number Description
- ------ -----------
4.1 Form of Restated Certificate of Incorporation of Cavco Industries
Inc., filed as Exhibit 3.1 to the Registration Statement on Form
10 (File No. 000-08822) filed by the Company on April 23, 2003, as
amended by Form 10/A dated May 21, 2003, Form 10/A dated May 30, 2003,
Form 10/A dated June 17, 2003, and Form 10/A dated June 20, 2003.
4.2 Form of Restated Bylaws of Cavco Industries, Inc. filed as Exhibit
3.2 to the Registration Statement on Form 10/A (File No. 000-08822)
filed by the Company on April 23, 2003, as amended by Form 10/A
dated May 21, 2003, Form 10/A dated May 30, 2003, Form 10/A dated June
17, 2003, and Form 10/A dated June 20, 2003.
4.3 Cavco Industries, Inc. Stock Incentive Plan, filed as Exhibit 10.6
to the Registration Statement on Form 10/A (File No. 000-08822)
filed by the Company on April 23, 2003, as amended by Form 10/A
dated May 21, 2003, Form 10/A dated May 30, 2003, Form 10/A dated June
17, 2003, and Form 10/A dated June 20, 2003.
4.4 Form of Restricted Stock Award Agreement, dated as of July 7,
2003, between Cavco Industries, Inc. and Joseph H. Stegmayer,
filed herewith.
5 Opinion of David A. Greenblatt, Esq., filed herewith.
23.1 Consent of Ernst & Young LLP, Independent Auditors, filed herewith.
23.2 Consent of David A. Greenblatt, Esq. (included in his opinion
filed as Exhibit 5 hereto).
</Table>