sv8
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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 Avenue, 8th Floor
Phoenix, Arizona 85004
(Address of principal executive offices, including zip code)
CAVCO INDUSTRIES, INC. 2005 STOCK INCENTIVE PLAN
(Full title of the plan)
Joseph H. Stegmayer
President and Chief Executive Officer
1001 North Central Avenue, 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
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Proposed maximum |
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Proposed maximum |
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Title of securities |
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Amount to be |
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offering price per |
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aggregate offering |
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Amount of |
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to be registered |
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registered |
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share (1) |
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price (1) |
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registration fee |
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Common Stock, $.01
par value per share |
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450,000 shares |
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$45.78 |
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$20,601,000 |
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$2,204.31 |
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(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 March 28,
2006 as published by The Wall Street Journal, which was $45.78 per share.
TABLE OF CONTENTS
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. 2005 Stock Incentive Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed with the Securities and Exchange Commission (the
“Commission”) by Cavco Industries, Inc. (the “Company”) and are incorporated herein by reference
and made a part hereof:
(a) The Company’s Annual Report on Form 10-K, filed with the Commission on May 20, 2005.
(b) The Company’s Quarterly Reports on Form 10-Q, filed with the Commission on August 4, 2005,
November 8, 2005 and January 31, 2006, respectively.
(c) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the Annual Report referred to in (a) above.
(d) The description of the Common Stock of the Company contained in the Company’s Registration
Statement on Form 10 (File No. 000-08822) filed with the Commission 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.
(e) 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
James P. Glew has rendered a legal opinion, filed as Exhibit 5 hereto, with respect to the
legality of the securities registered hereby. Mr. Glew is an employee of and in-house counsel to
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 Restated 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 Amended and 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 Amended and 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 Amended and 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 Amended and 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.
Agreements
The Company has entered into indemnification contracts with its directors and may enter into
similar contracts from time to time with certain officers and employees of the Company and its
subsidiaries who are not directors of the Company. The general effect of the indemnification
contracts is to provide that the indemnitees shall be indemnified to the fullest possible extent
permitted by the law against all expenses, including attorneys’ fees, judgments, fines and amounts
paid in settlement actually and reasonably incurred by them in any action or proceeding, including
any action by or in the right of the Company, by reason of their service in the foregoing
capacities.
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 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 the purpose of determining liability under the Securities Act to any purchaser:
(i) If the registrant is relying on Rule 430B:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be
part of the registration statement as of the date the filed prospectus was deemed part of and
included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part
of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a)
of the Securities Act shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after effectiveness or the date of
the first contract of sale of the securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration statement or made in any
such document immediately prior to such effective date; or
(ii) If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b)
as part of a registration statement relating to an offering, other than registration statements
relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to
be part of and included in the registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior to such first
use, supersede or modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document immediately prior to such
date of first use.
(5) That, for the purpose of determining liability of the registrant under the Securities Act
to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the
offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(6) 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.
(7) 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.
(8) With respect to a registration statement permitted by Rule 430A under the Securities Act:
The undersigned registrant hereby undertakes that:
(i) for purposes of determining any liability under the Securities Act, the information
omitted from the form of prospectus filed as part of this registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement
as of the time it was declared effective.
(ii) For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus 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.
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 Phoenix, State of Arizona, on
March 28, 2006.
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CAVCO INDUSTRIES, INC. |
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Registrant |
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By: |
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/s/ Joseph H. Stegmayer |
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Joseph H. Stegmayer |
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Chairman of the Board, President
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and Chief Executive Officer |
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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.
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Title |
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/s/ Joseph H. Stegmayer |
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Joseph H. Stegmayer
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Chairman of the Board,
President and Chief Executive
Officer and Director
(Principal Executive Officer)
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March 28, 2006 |
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/s/ Daniel Urness |
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Daniel Urness
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Vice President, Chief
Financial Officer and
Treasurer
(Principal Financial Officer
and Principal Accounting
Officer)
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March 28, 2006 |
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/s/ Steven G. Bunger |
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Steven G. Bunger
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Director
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March 28, 2006 |
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/s/ Jacqueline Dout |
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Jacqueline Dout
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Director
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March 28, 2006 |
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Jack Hanna
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Director
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/s/ Michael H. Thomas |
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Michael H. Thomas
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Director
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March 28, 2006 |
INDEX TO EXHIBITS
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| Exhibit |
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Description |
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| 4.1
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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. |
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| 4.2
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Form of Restated Bylaws of Cavco Industries, Inc. filed as Exhibit 3.2 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. |
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| 4.3
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Cavco Industries, Inc. 2005 Stock Incentive Plan, filed herewith. |
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| 5
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Opinion of James P. Glew, filed herewith. |
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| 23.1
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm, filed herewith. |
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| 23.2
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Consent of James P. Glew (included in his opinion filed as Exhibit 5 hereto). |