-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PQR62BRPGOGlj4vVZ22VyL4LWXc4vnEMJXl89+PzzuB5eeRoS8EIGnfWS6sicKt2 9coFUCwvtKkU6L9xeSfxIg== 0000931763-97-000324.txt : 19970320 0000931763-97-000324.hdr.sgml : 19970320 ACCESSION NUMBER: 0000931763-97-000324 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970319 EFFECTIVENESS DATE: 19970319 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: MOHAWK INDUSTRIES INC CENTRAL INDEX KEY: 0000851968 STANDARD INDUSTRIAL CLASSIFICATION: CARPETS AND RUGS [2273] IRS NUMBER: 521604305 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-23577 FILM NUMBER: 97559071 BUSINESS ADDRESS: STREET 1: 160 S INDUSTRIAL BLVD CITY: CALHOUN STATE: GA ZIP: 30701 BUSINESS PHONE: 7066297721 MAIL ADDRESS: STREET 1: P O BOX 12069 CITY: CALHOUN STATE: GA ZIP: 30703 S-8 1 FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 18, 1997 FILE NO. 333 - ____ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ____________________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ____________________________________ MOHAWK INDUSTRIES, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 52-1604305 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) POST OFFICE BOX 12069, 160 SOUTH INDUSTRIAL BLVD., CALHOUN, GEORGIA 30703 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER OF PRINCIPAL EXECUTIVE OFFICES) 1997 NON-EMPLOYEE DIRECTOR STOCK COMPENSATION PLAN 1997 LONG-TERM INCENTIVE PLAN (FULL TITLES OF THE PLANS) DAVID L. KOLB POST OFFICE BOX 12069 160 SOUTH INDUSTRIAL BLVD. CALHOUN, GEORGIA 30703 (706) 629-7721 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) _________________ CALCULATION OF REGISTRATION FEE
============================================================================================================ PROPOSED PROPOSED TITLE OF SECURITIES AMOUNT TO MAXIMUM MAXIMUM AMOUNT OF TO BE REGISTERED BE REGISTERED (1) OFFERING PRICE AGGREGATE REGISTRATION FEE PER SHARE (2) OFFERING PRICE (2) - ------------------------------------------------------------------------------------------------------------ COMMON STOCK, $.01 PAR VALUE (3) 1,725,000 $25.6875 $44,310,937.50 $13,428.00 - ------------------------------------------------------------------------------------------------------------ ============================================================================================================
(1) THE REGISTRATION STATEMENT COVERS 25,000 SHARES ISSUABLE UNDER THE 1997 NON-EMPLOYEE STOCK COMPENSATION PLAN AND 1,700,000 SHARES ISSUABLE UNDER THE 1997 LONG-TERM INCENTIVE PLAN. THE REGISTRATION STATEMENT ALSO COVERS ANY ADDITIONAL SHARES THAT MAY HEREAFTER BECOME ISSUABLE AS A RESULT OF THE ADJUSTMENT AND ANTI-DILUTION PROVISIONS OF THE 1997 NON-EMPLOYEE DIRECTOR STOCK COMPENSATION PLAN OR THE 1997 LONG-TERM INCENTIVE PLAN. (2) DETERMINED IN ACCORDANCE WITH RULE 457(H), THE REGISTRATION FEE CALCULATION AS BASED ON THE AVERAGE OF THE HIGH AND LOW PRICES OF THE REGISTRANT'S COMMON STOCK REPORTED ON THE NASDAQ NATIONAL MARKET SYSTEM ON MARCH 14, 1997. PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT - -------------------------------------------------------- ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents are incorporated by reference into this Registration Statement and are deemed to be a part hereof from the date of the filing of such documents: (1) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1996. (2) 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 "Exchange Act"), since December 31, 1996. (3) The description of Common Stock contained in the Registrant's Registration Statements filed under Section 12 of the Exchange Act, including all amendments or reports filed for the purpose of updating such description. (4) All other documents subsequently filed by the Registrant and the Plan pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities that remain unsold. Any statement contained in a document incorporated or deemed incorporated herein by reference shall be deemed to be modified or superseded for the purpose of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be, incorporated herein by reference 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 AND COUNSEL The legality of the Common Stock registered hereby has been passed upon for the Company by Alston & Bird, Atlanta, Georgia. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Article 12 of the Restated Certificate of Incorporation of the Registrant requires the Registrant to indemnify any person who is or was a director or officer of the Registrant, or any other person who is serving or did serve at the request of the Registrant in any such capacity with another corporation, partnership, joint venture, trust or other enterprise to the fullest extent permitted by the laws of the State of Delaware as now in effect or as may hereafter be amended. Article XII of the Registrant's Amended and Restated Bylaws sets forth certain procedural rights to indemnification and advancement of expenses within the above directive of the Restated Certificate of Incorporation. Such Bylaw provision also permits the Registrant, to the extent authorized from time to time by the Board of Directors, to grant rights to indemnification, and to the advancement of expenses, to any other employee or agent of the Registrant (or any person serving at the Registrant's request as a trustee, employee or agent of another enterprise) to the fullest extent of the provisions of such Article XII in case of the indemnification and advancement of expenses of directors and officers of the Registrant, or to any lesser extent (or greater extent, if permitted by law) determined by the Board of Directors. The Restated Certificate of Incorporation contains a provision which limits, to the fullest extent permitted by law, director liability for monetary damages for breaches of fiduciary duty as a director. The Registrant maintains an insurance policy insuring the Registrant and directors and officers of the Registrant against certain liabilities, including liabilities under the Securities Act of 1933. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. ITEM 8. EXHIBITS The exhibits included as part of this Registration Statement are as follows: EXHIBIT NUMBER DESCRIPTION -------------- ----------- 4.1 Restated Certificate of Incorporation of the Registrant. (Incorporated herein by reference to Exhibit 3.1 in the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1996.) 4.2 Amended and Restated By-Laws of the Registrant.(Incorporated herein by reference to Exhibit 3.2 in the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1996.) 5 Opinion of Alston & Bird. 23.1 Consent of Alston & Bird (included in Exhibit 5). 23.2 Consent of KPMG Peat Marwick LLP. 24 Power of Attorney (included on the signature page of this Registration Statement). 99.1 1997 Non-Employee Director Stock Compensation Plan. (Incorporated herein by reference to Exhibit 10.79 in the Registrant's Annual Report on Form 10-K for fiscal year ended December 31, 1996.) 99.2 1997 Long-Term Incentive Plan. (Incorporated herein by reference to Exhibit 10.80 in the Registrant's Annual Report on Form 10-K for fiscal year ended December 31, 1996.) 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 this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represents 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) 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 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 being 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 Company'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. (h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company 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 that the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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 Company 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 Atlanta, State of Georgia, on March 14, 1997. MOHAWK INDUSTRIES, INC. (Registrant) By: /s/ David L. Kolb ------------------------------------ David L. Kolb Chairman and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David L. Kolb as his true and lawful attorney-in- fact and agent, with full power of substitution and resubstitution, for him and in his 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 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 required or necessary to be done in and about the premises, as fully to all intents and purposes as he 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 hereof. 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.
SIGNATURE CAPACITY DATE - --------- -------- ---- /s/ David L. Kolb Chairman and Chief Executive Officer March 14, 1997 - ----------------------------- David L. Kolb (Principal Executive Officer) and Director /s/ John D. Swift Chief Financial Officer March 14, 1997 - ----------------------------- John D. Swift (Principal Accounting Officer) /s/ Leo Benatar Director March 14, 1997 - ----------------------------- Leo Benatar /s/ Bruce C. Bruckmann Director March 14, 1997 - ----------------------------- Bruce C. Bruckmann /s/ Alan S. Lorberbaum Director March 14, 1997 - ----------------------------- Alan S. Lorberbaum /s/ Jeffrey S. Lorberbaum Director March 14, 1997 - ----------------------------- Jeffrey S. Lorberbaum /s/ Larry W. McCurdy Director March 14, 1997 - ----------------------------- Larry W. McCurdy /s/ Robert N. Pokelwaldt Director March 14, 1997 - ----------------------------- Robert N. Pokelwaldt
EXHIBIT INDEX TO REGISTRATION STATEMENT ON FORM S-8 EXHIBIT NUMBER DESCRIPTION -------------- ----------- 4.1 Restated Certificate of Incorporation of the Registrant. (Incorporated herein by reference to Exhibit 3.1 in the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1996.) 4.2 Amended and Restated By-Laws of the Registrant.(Incorporated herein by reference to Exhibit 3.2 in the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1996.) 5 Opinion of Alston & Bird. 23.1 Consent of Alston & Bird (included in Exhibit 5). 23.2 Consent of KPMG Peat Marwick LLP. 24 Power of Attorney (included on the signature page of this Registration Statement). 99.1 1997 Non-Employee Director Stock Compensation Plan. (Incorporated herein by reference to Exhibit 10.79 in the Registrant's Annual Report on Form 10-K for fiscal year ended December 31, 1996.) 99.2 1997 Long-Term Incentive Plan. (Incorporated herein by reference to Exhibit 10.80 in the Registrant's Annual Report on Form 10-K for fiscal year ended December 31, 1996.) EX-5 2 OPINION OF ALSTON & BIRD EXHIBIT 5 OPINION OF ALSTON & BIRD March 11,1997 Mohawk Industries, Inc. 160 South Industrial Blvd. Calhoun, GA 30703 Re: Form S-8 Registration Statement of Mohawk Industries, Inc. -- 1997 Long-Term Incentive Plan Ladies and Gentlemen: We have acted as counsel to Mohawk Industries, Inc., a Delaware corporation (the "Company"), in the connection with the referenced Registration Statement on Form S-8 (the "Registration Statement") being filed by the Company with the Securities and Exchange Commission (the "the Commission") under the Securities Act of 1933, as amended, and covering 1,700,000 shares of the Company's common stock, $.01 par value ("Common Stock") that may be offered and sold pursuant to the Mohawk Industries, Inc. 1997 Long-Term Incentive Plan (the "Plan"). This Opinion Letter is rendered pursuant to Item 8 of Form S-8 and Item 601(b)(5) of Regulation S-K. This Opinion Letter is limited by, and is in accordance with, the January 1, 1992 edition of the Interpretive Standards Applicable to Legal Opinions to Third Parties in Corporate Transactions adopted by the Legal Opinion Committee of the Corporate and Banking Law Section of the State Bar of Georgia (the "Interpretive Standards"), which Interpretive Standards are incorporated in this Opinion Letter by this reference. Capitalized terms used in this Opinion Letter and not otherwise defined herein shall have the meanings assigned to such terms in the Interpretive Standards and in the Registration Statement. In the capacity described above, we have considered such matters of law and of fact, including the examination of originals and copies, certified or otherwise identified to our satisfaction, of such records and documents of the Company, certificates of public officials and such other documents as we have deemed appropriate as a basis for the opinions hereinafter set forth. Based upon the foregoing, we are of the opinion that the 1,700,000 shares of Common Stock issuable under the Plan and covered by the Registration Statement, when delivered to Plan participants in accordance with the terms and conditions of the Plan, will be legally and validly issued, fully paid and nonassessable. The Opinion expressed herein is limited to the laws of the State of Delaware as codified in the General Corporation Law of the State of Delaware. This Opinion Letter is provided to you for your benefit and for the benefit of the Commission, in each case, solely with regard to the Registration Statement, may be relied upon by you and the Commission only in connection with the Registration Statement, and may not be relied upon by any other person or for any other purpose without our prior written consent. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement. Sincerely, ALSTON & BIRD By: /s/ Laura G. Thatcher ------------------------- Laura G. Thatcher EX-23.2 3 CONSENT OF KPMG PEAT MARWICK LLP. EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT The Board of Directors: Mohawk Industries, Inc. We consent to the use of our reports incorporated herein by reference in the Form S-8. KPMG PEAT MARWICK LLP Atlanta, Georgia March 14, 1997 -----END PRIVACY-ENHANCED MESSAGE-----