Registration No. _________
As filed with the Securities and Exchange Commission on May 15, 2002
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement
Under
The Securities Act of 1933
HILLENBRAND INDUSTRIES, INC.
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(Exact name of registrant as specified in its charter)
INDIANA 35-1160484
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
700 State Route 46 East
BATESVILLE, INDIANA 47006
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(Address of Principal Executive Offices) (Zip Code)
STOCK INCENTIVE PLAN
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(Full title of the plan)
Timothy R. Renfroe
Hillenbrand Industries, Inc.
700 State Route 46 East
Batesville, Indiana 47006
TELEPHONE: (812) 934-7682
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(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Title of
Securities Amount Proposed Maximum Proposed Amount of
to be to be Offering Price Maximum Aggregate Registration
Registered Registered* Per Share** Offering Price** Fee
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Common Stock,
without par value
5,000,000 shares $59.85 $299,250,000.00 $27,531.00
Common Stock,
without par value
294,611 shares $61.125 $18,008,097.37 N/A
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(see footnotes on following page)
FOOTNOTES
* This Registration Statement also relates to such indeterminate
number of additional shares as may be issuable pursuant to stock
splits, stock dividends, or similar transactions.
** The proposed maximum offering price per share of Common Stock and
the proposed maximum aggregate offering price are calculated solely
for the purpose of determining the registration fee pursuant to Rule
457(h) under the Securities Act of 1933. The fee with respect to
5,000,000 shares is based on a price of $59.85, which is the average
of the high and low sales prices of the Common Stock on May 13, 2002
as reported on the New York Stock Exchange Consolidated Tape. No
additional fee is payable with respect to 294,611 shares that were
previously registered on Form S-8 filed April 8, 1998 (No.
333-49669).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Hillenbrand Industries, Inc. (the
"Company") under the Securities Exchange Act of 1934 (the "Exchange Act") are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 1, 2001;
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 1, 2001; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8A dated May 17, 1971 and all
amendments or reports filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of the filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
(1) Indiana Business Corporation Law ("IBCL")
In general, Chapter 37 of the IBCL provides for mandatory director
indemnification and optional director indemnification.
A. Mandatory. Unless otherwise limited by its Articles of
Incorporation, an Indiana corporation is required to indemnify a director who
was WHOLLY SUCCESSFUL in the defense of any proceeding to which the director was
a party because the director is or was a director of the corporation. The
corporation is required to pay all reasonable expenses incurred by the director
in connection with the proceeding.
B. Optional. Indiana law permits indemnification of directors
against liabilities and expenses incurred in proceedings if the individual ACTED
IN GOOD FAITH and reasonably believed (a) in the case of conduct in his official
capacity with the corporation, that his conduct was in its best interests, and
(b) in all other cases, that his conduct was at least not opposed to its best
interests. In the case of any criminal proceeding, the individual must either
have had reasonable cause to believe the conduct was lawful or had no reasonable
cause to believe the conduct was unlawful. Any determination as to whether, and
to what extent, an Indiana corporation may indemnify a director must be made (x)
by a majority vote of a quorum of the directors not a party to the proceeding,
(y) by special legal counsel, or (z) by the shareholders.
C. Expenses. An Indiana corporation may advance expenses to a
director if it receives a statement from the director that (a) he believes the
required standard of conduct for optional indemnification has been met, (b) the
director undertakes unconditionally to repay the corporation for the advances if
it is later determined the standard has not been met, and (c) there are no facts
known which would preclude indemnification.
D. Officer Indemnification. Unless otherwise limited in an Indiana
corporation's Articles of Incorporation, an officer is entitled to
indemnification under the circumstances for mandatory indemnification set forth
above to the same extent as a director. Additionally, an Indiana corporation may
also provide further indemnification for its officers through its articles, its
by-laws, resolution by its directors, or contract.
(2) Articles of Incorporation
Section 8.6 of the Restated Articles of Incorporation of the Company
provides for indemnification of officers and directors against all liability and
reasonable expenses incurred by such person on account of or arising out of that
person's relationship to the Company, provided that the party to be indemnified
satisfies the requirements of Chapter 37 of the IBCL.
(3) Indemnity Agreements
The Company has executed certain Director Indemnity Agreements with
each of its directors and certain Officer Indemnity Agreements with its
officers. The agreements provide that the Company shall indemnify its directors
and officers if their conduct would warrant indemnification under Indiana
statutory law's standard for optional indemnification set forth above. The
agreements do, however, provide that the Company is not required to indemnify an
officer or director for certain claims made against the individual, including
claims:
(a) for which payment has already been made to the director or
officer under any insurance policy or other indemnity provision;
(b) for any transaction from which the director or officer derived
an improper benefit;
(c) for recovery of short-swing profits prohibited under Section
16(b) of the Securities and Exchange Act of 1934;
(d) if a court determines that indemnification is not lawful under
applicable statute or public policy; and
(e) subject to certain exceptions, in connection with any proceeding
initiated by the Director against the Company or its directors, officers or
employees.
(4) Insurance
Officers and directors of the Company are presently covered by
insurance which (with certain exceptions and certain limitations) indemnifies
them against any losses or liabilities arising from any alleged `wrongful act',
including breach of duty, neglect, error, misstatement, misleading statements,
omissions or other acts done or wrongfully attempted.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
NUMBER DESCRIPTION METHOD OF FILING
4.1 Articles of Incorporation of the Company Incorporated herein by reference to Exhibit 3
filed with Form 10-K for the year ended
November 28, 1992
4.2 By-Laws of the Company Incorporated herein by reference to Exhibit
3.2 filed with Form 10-K for the year ended
December 1, 2001
4.3 Stock Incentive Plan Incorporated herein by reference to Appendix
A filed with the definitive Proxy Statement
dated March 1, 2002 relative to the Company's
2002 Annual Meeting of Shareholders
5.1 Opinion of Timothy R. Renfroe Filed herewith
23.1 Consent of PricewaterhouseCoopers LLP Filed herewith
23.2 Consent of Timothy R. Renfroe Contained in Exhibit 5.1
24.1 Powers of Attorney Filed herewith
Item 9. UNDERTAKINGS
(a) The Company 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 thereof) which, individually or in
the aggregate, represents 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 paragraphs (a)(1)(i) and (a)(1)(ii) 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 Company pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
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 Company 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 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.
(c) 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 than the payment by the Company 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
THE REGISTRANT. 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 Batesville, State of Indiana, on this 15th day
of May, 2002.
HILLENBRAND INDUSTRIES, INC.
By: /S/ FREDERICK W. ROCKWOOD
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Frederick W. Rockwood,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on this 15th day of May, 2002.
SIGNATURE CAPACITY
* President and Chief Executive Officer and
--------------------------------- Director
Frederick W. Rockwood
* Vice President and Chief Financial Officer
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Scott K. Sorensen
* Vice President and Controller
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Gregory N. Miller
* Chairman of the Board
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Ray J. Hillenbrand
* Director
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Daniel A. Hillenbrand
SIGNATURE CAPACITY
* Director
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John A. Hillenbrand II
* Director
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W August Hillenbrand
* Director
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Peter F. Coffaro
* Director
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Edward S. Davis
* Director
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Leonard Granoff
* Director
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John C. Hancock
* By: /S/ TIMOTHY R. RENFROE
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as authorized by Power of
Attorney filed as Exhibit 24.1
to this Registration Statement
EXHIBIT INDEX
NUMBER DESCRIPTION METHOD OF FILING
4.1 Articles of Incorporation of the Company Incorporated herein by reference to Exhibit 3
filed with Form 10-K for the year ended
November 28, 1992
4.2 By-Laws of the Company Incorporated herein by reference to Exhibit
3.2 filed with Form 10-K for the year ended
December 1, 2001
4.3 Stock Incentive Plan Incorporated herein by reference to Appendix A
filed with the definitive Proxy Statement
dated March 1, 2002 relative to the Company's
2002 Annual Meeting of Shareholders
5.1 Opinion of Timothy R. Renfroe Filed herewith
23.1 Consent of PricewaterhouseCoopers LLP Filed herewith
23.2 Consent of Timothy R. Renfroe Contained in Exhibit 5.1
24.1 Powers of Attorney Filed herewith