As filed with the Securities and Exchange Commission on June 12, 1998.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
GIBRALTAR STEEL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 16-1445150
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
3556 Lake Shore Road
P.O. Box 2028
Buffalo, New York 14219-0228
(Address of Principal Executive Offices) (Zip Code)
Gibraltar Steel Corporation Incentive Stock Option Plan
(Full title of the plans)
WALTER T. ERAZMUS
Executive Vice President - Finance and Chief Financial Officer
GIBRALTAR STEEL CORPORATION
3556 Lake Shore Road
P.O. Box 2028
Buffalo, New York 14219-0228
(Name and address of agent for service)
(7l6) 826-6500
(Telephone number, including area code, of agent for service)
Copy To:
ROBERT J. OLIVIERI, Esq.
Lippes, Silverstein, Mathias & Wexler LLP
700 Guaranty Building
28 Church Street
Buffalo, New York 14202-3950
(7l6) 853-5100
CALCULATION OF REGISTRATION FEE
Title of each Proposed Proposed
class of Maximum Maximum Amount of
Securities to Amount to be Offering Price aggregate registration
be registered registered Per Share (3) Offering Price (3) fee
Common Stock, 250,000
$.0l par value shares (1) $22.75 (4) $5,687,500 (4) $1,678
Total 250,000
shares (2) $1,678
(1) Consists of an aggregate of 250,000 shares of Common Stock of the
Registrant which may become issuable upon the exercise of options
granted under the Gibraltar Steel Corporation Incentive Stock Option
Plan Third Amendment and Restatement (the "Incentive Plan").
(2) This Registration Statement also covers an indeterminate number of
shares of Common Stock which may become issuable as a result of stock
splits, stock dividends or similar transactions.
(3) Estimated solely for the purpose of calculating the registration fee.
(4) Calculated pursuant to Rule 457(c) and (h) based upon the average of
high and low sales price of the Registrant's Common Stock on June 8,
1998 as quoted on the NASDAQ National Market System.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in Part I of
this Registration Statement will be sent or given to employees as specified
by Rule 428(b)(1). Such documents are not required to be and are not filed
with the Securities and Exchange Commission (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 (the "Securities Act").
This Registration Statement on Form S-8 of Gibraltar Steel
Corporation, a Delaware corporation (the "Registrant"), covers 250,000
shares of the Registrant's Common Stock, par value $0.0l per share ("Common
Stock"), reserved for issuance under the Gibraltar Steel Corporation
Incentive Stock Option Plan Third Amendment and Restatement (the "Plan").
If necessary for a prospectus to be used for re-offers of the
Registrant's Common Stock acquired pursuant to the Plan, a prospectus
prepared in accordance with the requirements of Form S-3 will be filed as
part of this Registration Statement by means of a post-effective amendment
hereto.
Item 2. Registrant Information and Employee Plan Annual Information.
Upon written or oral request, any of the documents incorporated
by reference in Item 3 of Part II of this Registration Statement (which
documents are incorporated by reference in this Section 10(a) Prospectus),
other documents required to be delivered to eligible employees pursuant to
Rule 428(b) or additional information about the Plan and its administrators
are available without charge by contacting:
Gibraltar Steel Corporation
3556 Lake Shore Road
P.O. Box 3556
Buffalo, New York 14219-0228
Attention: Secretary
Telephone: (716) 826-6500
Facsimile: (716) 826-1589
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the
Commission under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997;
(b) The Registrant's Quarterly Reports on Form l0-Q for
the fiscal quarters ended March 31, 1998;
(c) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange Act since the end of
the fiscal year covered by the annual report referenced in
(a) above; and
(d) The description of the Registrant's Common Stock
contained in the Registrant's Registration Statement on Form
8-A, dated September 23, 1993, as amended by the Registrant's
Form 8-A/A Amendment No. 1 dated November 3, 1993.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicated that all
securities registered hereby have been sold or which registers all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of
such documents.
Any statement contained herein or in a 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 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 Expert and Counsel.
Certain legal matters with respect to the validity of the shares
of Common Stock offered pursuant to this Registration Statement are being
passed upon for the Registrant by Lippes, Silverstein, Mathias & Wexler
LLP, counsel to the Registrant.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") provides, in summary, that directors and officers of
Delaware corporations are entitled, under certain circumstances, to be
indemnified against all expenses and liabilities (including attorneys'
fees) incurred by them as a result of suits brought against them in their
capacity as a director or officer, if they acted in good faith and in a
manner they 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 their conduct was unlawful;
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provided, that no indemnification may be made against expenses in respect
of any claim, issue or matter as to which they shall have been adjudged to
be liable to the corporation, unless and only to the extent that 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, they are fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper. Any such
indemnification may be made by the corporation only as authorized in each
specific case upon a determination by the stockholders or disinterested
directors that indemnification is proper because the indemnitee has met the
applicable standard of conduct. Article Twelfth of the Registrant's
Certificate of Incorporation entitles officers, directors and controlling
persons of the Registrant to indemnification to the full extent permitted
by Section 145 of the DGCL, as the same may be supplemented or amended from
time to time.
Article Thirteenth of the Registrant's Certificate of
Incorporation provides that no director shall have any personal liability
to the Registrant or its stockholders for any monetary damages for breach
of fiduciary duty as a director, provided that such provision does not
limit or eliminate the liability of any director (i) for breach of such
director's duty of loyalty to the Registrant 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
(involving certain unlawful dividends or stock repurchases) or (iv) for any
transaction from which such director derived an improper personal benefit.
The provisions of such article do not limit or eliminate the liability of
any director for any act or omission occurring prior to the effective time
of such amendment.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Gibraltar Steel Corporation Incentive Stock Option Plan
Third Amendment and Restatement (incorporated by reference to
Exhibit 10.11 to the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1997).
4.2 Gibraltar Steel Corporation Non-Qualified Stock Option Plan
First Amendment and Restatement (incorporated by reference to
Exhibit 10.17 to the Registrant's Registration Statement on Form
S-1 (Registration No. 333-03979)).
*5.1 Opinion of Lippes, Silverstein, Mathias & Wexler LLP as to
the legality of the securities being offered.
*23.1 Consent of Price Waterhouse LLP with respect to
financial statements of the Registrant.
*23.3 Consent of Lippes, Silverstein, Mathias & Wexler LLP
(included in Exhibit 5.1).
*24 Powers of Attorney (included on p. II - 5 of this
Registration Statement).
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* Filed herewith.
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 to include any material information
with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
changes to such information in the Registration Statements;
II-4
(2) That, for the purpose of determining
liability under 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.
(b) The undersigned Registrant hereby undertakes 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 the Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered herein, 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 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions of Item 6 of this
Registration Statement, 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, therefor, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment of 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.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Buffalo, State of New York on the
12th day of June, 1998.
GIBRALTAR STEEL CORPORATION
By: /s/Walter T. Erazmus
Walter T. Erazmus
Executive Vice President - Finance
and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Brian J. Lipke, Neil E. Lipke,
Curtis W. Lipke and Walter T. Erazmus, and each of them, his true and
lawful attorneys-in-fact and agents 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) of and supplements 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 such
attorneys-in-fact and agents and each of them full power and authority to
do and perform each and every act and thing requisite and necessary to be
done in and about the premises, to all intents and purposes and as fully as
they might or could do in person hereby ratifying and confirming all that
such attorneys-in-fact and agents, or their substitutes, 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 indicated on the 12th day of June, 1998.
Signature Capacity
/s/ Brian J. Lipke Chairman of the Board,
Brian J. Lipke President and Chief
Executive Officer
(Principal Executive Officer)
/s/ Walter T. Erazmus Executive Vice President -
Walter T. Erazmus Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
/s/ Neil E. Lipke Director
Neil E. Lipke
/s/ Gerald S. Lippes Director
Gerald S. Lippes
II-6
/s/ Arthur A. Russ, Jr. Director
Arthur A. Russ, Jr.
/s/ William P. Montague Director
William P. Montague
------------------- Director
David N. Campbell
II-7
EXHIBIT INDEX
Exhibit No. Description
4.1 Gibraltar Steel Corporation Incentive Stock Option Plan
Third Amendment and Restatement (incorporated by reference to
Exhibit 10.11 to the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1997.
*5.1 Opinion of Lippes, Silverstein, Mathias & Wexler LLP as to
the legality of the securities being offered.
*23.1 Consent of Price Waterhouse LLP with respect to
financial statements of the Registrant.
*23.2 Consent of Lippes, Silverstein, Mathias & Wexler LLP
(included in Exhibit 5.1).
*24 Powers of Attorney (included on p. II - 5 of this
Registration Statement).
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* Filed herewith.
EXHIBIT 5.1
Gibraltar Steel Corporation
3556 Lake Shore Road
P.O. Box 2028
Buffalo, New York 14219-0228
Re: Gibraltar Steel Corporation
Registration Statement on Form S-8
Gentlemen:
We have acted as counsel for Gibraltar Steel Corporation, a
Delaware corporation (the "Corporation"), in connection with the
preparation and filing of a registration statement of the Corporation on
Form S-8 (the "Registration Statement") under the Securities Act of 1933,
as amended, covering up to 250,000 shares of its common stock, par value
$.01 per share (the "Shares") to be issued pursuant to the Gibraltar Steel
Corporation Incentive Stock Option Plan Third Amendment and Restatement
(the "Plan").
We have examined copies of the Certificate of Incorporation and
By-Laws of the Corporation, each as amended to date, and the minutes of
various meetings of the Board of Directors of the Corporation. We have
examined the Registration Statement, the Plan and the original or
reproduced or certified copies of such records of the Corporation,
certificates of public officials, certificates of officers and
representatives of the Corporation, and such other documents, papers,
statutes and authorities all as we have deemed necessary to form the basis
of the opinion hereinafter expressed. In such examinations, we have
assumed the genuineness of signatures and the conformity to original
documents of the documents supplied to us as copies thereof.
Based upon the foregoing, we are of the opinion that the Shares,
when duly issued and sold pursuant to the terms of the Plans, will be
validly issued, fully paid and nonassessable.
We hereby consent to be named in the Registration Statement as
the attorneys who have passed upon the legality of the securities being
offered thereby, and to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ LIPPES, SILVERSTEIN, MATHIAS & WEXLER LLP
LIPPES, SILVERSTEIN, MATHIAS & WEXLER LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January
19, 1998, which appears on page 17 of Gibraltar Steel
Corporation's Annual Report on Form 10-K for the year ended
December 31, 1997.
PRICE WATERHOUSE LLP
/s/ PRICE WATERHOUSE LLP
Buffalo, New York
June 12, 1998
