AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 21, 2005
Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LMI AEROSPACE, INC.
(Exact Name of Registrant as Specified in its Charter)
MISSOURI 43-1309065
(State or Other Jurisdiction of Incorporation (I.R.S. Employer Identification
or Organization) No.)
3600 MUELLER ROAD,
ST. CHARLES, MISSOURI 63301
(Address of Principal Executive Offices) (Zip Code)
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LMI AEROSPACE, INC. 2005 LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
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LAWRENCE E. DICKINSON
CHIEF FINANCIAL OFFICER AND SECRETARY
LMI AEROSPACE, INC.
3600 MUELLER ROAD
ST. CHARLES, MISSOURI 63301
(Name and Address of Agent for Service)
(636) 916-2150
(Telephone Number, Including Area Code, of Agent for Service)
Copies of All Correspondence to:
SANFORD S. NEUMAN, ESQ.
GALLOP, JOHNSON & NEUMAN, L.C.
101 SOUTH HANLEY ROAD, SUITE 1700
ST. LOUIS, MISSOURI 63105
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED(1) PRICE PER SHARE(2) AGGREGATE OFFERING REGISTRATION
PRICE(2) FEE(2)
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Common Stock, $.02 par value per share 1,200,000 5.905 $ 7,086,000 $ 834.02
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(1) Pursuant to Rule 416, this registration statement also covers such
indeterminate number of shares as may become issuable as a result of any
future stock split, stock dividend or other similar event in accordance
with the anti-dilution provisions of the LMI Aerospace, Inc. 2005 Long-Term
Incentive Plan.
(2) The proposed maximum aggregate offering price per share was estimated
solely for the purpose of calculating the registration fee. Such estimate
has been calculated in accordance with Rule 457(c) and (h) under the
Securities Act of 1933, as amended, and is based upon the average of the
high and low sale prices for shares of the Registrant's common stock as
reported on the Nasdaq National Market on July 18, 2005.
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This registration statement on Form S-8 (the "Registration Statement") shall
become effective upon filing in accordance with Rule 462(a) under the Securities
Act of 1933, as amended.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I of Form S-8
will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities and Exchange Commission (the "Commission"). Such documents need not
be filed with the Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act of 1933, as
amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and Exchange
Commission are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K, as amended by
Form 10-K/A for the year ended December 31, 2004 filed with
the Commission on April 29, 2005 and May 4, 2005;
(b) The Registrant's Quarterly Report on Form 10-Q for the
three-month period ended March 31, 2005 filed with the
Commission on May 16, 2004;
(c) The Registrant's Current Reports on Form 8-K (other than Item
7.01 of such Forms 8-K) filed with the Commission on March 30,
2005, March 31, 2005, May 4, 2005, May 10, 2005, May 13, 2005
and July 13, 2005; and
(d) The description of the Registrant's common stock, which is
contained in the Registrant's Registration Statement on Form
8-A filed with the Commission on May 20, 1998, including any
amendment or report filed for the purpose of updating such
description.
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, prior to
the filing of a post-effective amendment that indicates that all securities
offered hereby have been sold or which deregisters all such securities then
remaining unsold, other than Item 7.01 of any Current Report on Form 8-K, 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. Any statement
contained in a document incorporated by reference herein and filed prior to the
filing hereof shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein modifies
or supersedes such statement, and any statement contained herein or in any other
document 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 in any other subsequently filed document which also is
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS.
A legal opinion to the effect that the shares of LMI Aerospace, Inc. common
stock offered hereby have been duly authorized and that, when they are issued in
accordance with the terms of the LMI Aerospace, Inc. 2005 Long-Term Incentive
Plan, will be validly issued and outstanding, fully paid and nonassessable, has
been rendered by the law firm of Gallop, Johnson & Neuman, L.C. (the "Firm"). As
of April 25, 2005, Sanford S. Neuman, the Chairman and a member of the Firm,
owned beneficially 313,440 shares of the Company's common stock, including
282,940 shares held of record by an irrevocable trust of which Mr. Neuman, as
trustee, has voting and investment power and 15,500 shares held by certain
trusts of which Mr. Neuman, as trustee, has voting and investment power. Such
amount also includes 15,000 shares issuable upon the exercise of currently
exercisable options to purchase such shares held by Mr. Neuman.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 351.355 of The General and Business Corporation Law of Missouri (the
"Missouri Corporate Law") provides that a corporation created under the laws of
Missouri 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 he
or she 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 him in connection
with such action, suit, or proceeding if he or she acted in good faith and in a
manner he or she 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 his or her conduct was unlawful.
In addition, under Missouri Corporate Law, the 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 he or
she 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, and amounts paid
in settlement actually and reasonably incurred by him in connection with the
defense or settlement of the action or suit if he or she acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation; except that no indemnification can be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of his or
her duty to the corporation unless and only to the extent that the court in
which the action or suit was brought determines upon application that, despite
the adjudication of liability and in view of all the circumstances of the case,
the person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper. Expenses incurred in defending a civil or
criminal action, suit or proceeding may be paid by the corporation in advance of
the final disposition of the action, suit, or proceeding as authorized by the
board of directors in the specific case upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount unless
it shall ultimately be determined that he or she is entitled to be indemnified
by the corporation as authorized in this section.
The Amended and Restated By-Laws of the Registrant provide for indemnification
of directors, officers and, under certain circumstances, employees and agents of
the Registrant to the full extent and under the circumstances permitted by
Missouri Corporate Law and of any person who is or was at the request of the
Registrant a guarantor of any debts of the Registrant. The Amended and Restated
By-Laws provide that any indemnification made with respect to actions by or in
the right of the Registrant (unless ordered by a court) shall be made by the
Registrant only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee, partner, trustee or agent is
proper in the circumstances because such person has met the applicable standard
of conduct set forth in the Amended and Restated By-Laws. Such determination
shall be made by (i) the Board of Directors of the Registrant by a majority vote
of a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the shareholders.
Under Missouri Corporate Law, corporations may purchase and maintain insurance
on behalf of any person who 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 any liability asserted against him
and incurred by him in any such capacity, or arising out of his or her status as
such, whether or not the corporation would have the power to indemnify him
against such liability under Missouri law. The Registrant maintains a
claims-made policy of directors' and officers' liability and company
reimbursement insurance. The directors' and officers' liability portion of such
policy covers all of its directors and officers and those of the Registrant's
subsidiary companies. The policy provides for a payment on behalf of the
directors and officers up to the policy limits for all specified losses which
the directors and officers, or any of them, become legally obligated to pay,
from claims made against them during the policy period for specified wrongful
acts, which include: errors, misstatements, misleading statements, acts or
omissions and neglect or breach of duty in the discharge of their duties, solely
in their capacity as directors and officers of the Registrant or any of its
subsidiaries, individually or collectively, or in connection with any matter
claimed against them solely by reason of their being directors or officers of
the Registrant or any of its subsidiaries. The insurance includes the cost of
defense, appeals, bonds, settlements and judgments. The insurer's limit of
liability under the policy is $7.5 million in the aggregate for all losses per
year. The policy contains various reporting requirements and exclusions. The
Registrant also maintains a claims-made policy that provides coverage for the
Registrant, and its directors and officers, against loss, liability, cost or
expense incurred under the federal securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT INDEX
Exhibit
Number Description
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5.1 Opinion of Gallop, Johnson & Neuman, L.C.
10.1 LMI Aerospace, Inc. 2005 Long-Term Incentive Plan
23.1 Consent of BDO Seidman, LLP.
2
23.2 Consent of Gallop, Johnson & Neuman, L.C. (included in
Exhibit 5.1).
24 Power of Attorney (included on 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 of 1933;
(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 hereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the 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 the undertakings set forth in clauses (i) and (ii) above
do not apply if the information required to be included in a post-effective
amendment by those clauses 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 Securities Exchange Act of 1934 that are incorporated by reference
in this Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 St. Charles, State of Missouri, on July 20, 2005.
LMI AEROSPACE, INC.
By: /s/ LAWRENCE E. DICKINSON
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Lawrence E. Dickinson,
Chief Financial Officer and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Lawrence E. Dickinson, Chief Financial Officer and
Secretary as his/her true and lawful attorneys-in-fact and agent, with full
power of substitution and resubstitution, for him/her and in his/her name,
place, and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he/she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent or his
substitute may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated:
July 20, 2005 /s/ RONALD S. SAKS
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Ronald S. Saks, President, Chief Executive
Officer and Director
July 20, 2005 /s/ LAWRENCE E. DICKINSON
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Lawrence E. Dickinson, Chief Financial Officer
and Secretary
July 20, 2005 /s/ SANFORD S. NEUMAN
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Sanford S. Neuman, Director
July 20, 2005 /s/ THOMAS G. UNGER
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Thomas G. Unger, Director
July 20, 2005 /s/ JOHN M. ROEDER
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John M. Roeder, Director
July 20, 2005
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Paul L. Miller, Jr., Director
July 20, 2005 /s/ JOSEPH BURSTEIN
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Joseph Burstein, Director
July 20, 2005 /s/ BRIAN D. GEARY
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Brian D. Geary, Director
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LMI AEROSPACE, INC.
EXHIBIT INDEX
Exhibit
Number Description
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5.1 Opinion of Gallop, Johnson & Neuman, L.C.
10.1 LMI Aerospace, Inc. 2005 Long-Term Incentive Plan.(1)
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Gallop, Johnson & Neuman, L.C. (included in
Exhibit 5.1).
24 Power of Attorney (included on signature page of this
Registration Statement).
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(1) Filed as Exhibit 10.1 to the Registrant's Current Report on Form 8-K, filed
with the Securities and Exchange Commission on July 13, 2005.
5