As filed with the Securities and Exchange Commission on April 18, 2008 Registration No. 333-__________
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNIVERSAL FOREST
PRODUCTS, INC.
(Exact Name of
Registrant as Specified in its Charter)
Michigan
|
38-1465835 |
(State or Other Jurisdiction of
Incorporation or Organization) |
(I.R.S. Employer
Identification Number) |
2801 East Beltline,
N.E., Grand Rapids, Michigan 49525
(address of
principal executive offices)
Universal Forest
Products, Inc. 2002 Employee Stock Purchase Plan
(full title of plan)
Matthew Missad
Universal Forest Products, Inc.
2801 East Beltline, N.E., Grand Rapids, Michigan 49525
(616) 364-6161
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With copy to:
Michael G. Wooldridge
Varnum, Riddering, Schmidt & Howlett LLP
333 Bridge St., N.W., P.O. Box 352
Grand Rapids, Michigan 49501-0352
(616) 336-6000
CALCULATION OF REGISTRATION FEE | ||||||||||||||
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|
||||||||||||||
Title of Securities
Being Registered |
Amount Being
Registered |
Proposed
Maximum Offering Price Per Share (2) |
Proposed
Maximum Aggregate Offering Price (2) |
Amount of
Registration Fee |
||||||||||
|
||||||||||||||
Common Stock, no par | 200,000 shares (1) | $ | 30.68 | $ | 6,136,000 | $ | 241.14 | |||||||
value | ||||||||||||||
|
(1) | Represents an additional 200,000 shares of Common Stock authorized for issuance under the Universal Forest Products, Inc. 2002 Employee Stock Purchase Plan pursuant to the amendment to the Plan approved by the Registrants shareholders on April 16, 2008. This Registration Statement also covers such indeterminable additional number of shares as may be issuable under the Universal Forest Products, Inc. 2002 Employee Stock Purchase Plan by reason of adjustments to the number of shares covered thereby. |
(2) | For the purpose of computing the registration fee only, the price shown is based upon the price of $30.68 per share, the average of the high and low sales prices for the Common Stock of the Registrant as reported in the NASDAQ National Market on April 17, 2008, in accordance with Rule 457(c) and (h)(1). |
Pursuant to Rule 416(a) of the General Rules and Regulations under the Securities Act of 1933, this Registration Statement shall cover such additional securities as may be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
2
Information required by Part I to be
contained in the Section 10(a) Prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933 and the Note to Part I of Form
S-8.
Universal Forest Products, Inc. (the
Company) hereby incorporates by reference in this Registration Statement the
following documents filed by the Company with the Securities and Exchange Commission:
All other documents subsequently
filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all securities
offered 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 part of
this Registration Statement from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference in this
Registration Statement shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in this Registration
Statement or in any other subsequently filed document which also is incorporated or deemed
to be incorporated by reference in this Registration Statement modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed, except as
modified or superseded, to constitute a part of this Registration Statement.
The class of securities to be offered
is registered under Section 12 of the Exchange Act.
Not applicable.
3
The Restated and Amended Articles of
Incorporation of the Company provide that its directors and officers are required to be
indemnified as of right to the fullest extent permitted under the Michigan Business
Corporation Act (MBCA) in connection with any actual or threatened civil,
criminal, administrative or investigative action, suit or proceeding (whether brought by
or in the name of the Company, a subsidiary or otherwise) in which a director or officer
is a witness or which is brought against a director or officer in his or her capacity as a
director, officer, employee, agent or fiduciary of the Company or of any corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise which the
director or officer was serving at the request of the Company. Persons who are not
directors or officers of the Company may be similarly indemnified in respect of said
service to the extent authorized by the Board of Directors of the Company. Under the MBCA,
directors, officers, employees or agents are entitled to indemnification against expenses
(including attorney fees) whenever they successfully defend legal proceedings brought
against them by reason of the fact that they hold such a position with the Company. In
addition, with respect to actions not brought by or in the right of the Company,
indemnification is permitted under the MBCA for expenses (including attorney fees),
judgments, fines, penalties and reasonable settlements if it is determined that the person
seeking indemnification acted in a good faith and in a manner he or she reasonably
believed to be in and not opposed to the best interest of the Company or its shareholders
and, with respect to criminal proceedings, he or she had no reasonable cause to believe
that his or her conduct was unlawful. With respect to actions brought by or in the right
of the Company, indemnification is permitted under the MBCA for expenses (including
attorney fees) and reasonable settlement, if it is determined that the person seeking
indemnification acted in good faith and in a manner he or she reasonably believed to be in
and not opposed to the best interest of the Company or its shareholders; provided,
indemnification is not permitted if the person is found liable to the Company, unless the
court in which the action or suit was brought has determined that indemnification is fair
and reasonable in view of all the circumstances of the case.
The MBCA and the Companys
Restated and Amended Articles of Incorporation also authorize the Company to provide
indemnification broader than that set forth in the MBCA and the Restated and Amended
Articles of Incorporation. Pursuant to this authority, the Company has entered into
indemnification agreements with each of its directors, which provide for the prompt
indemnification to the fullest extent permitted by applicable law and for the prompt
advancement of expenses, including reasonable attorney fees, incurred in connection with
any proceeding in which a director is a witness or which is brought against a director in
his or her capacity as a director, officer, employee, agent or fiduciary of the Company or
of any corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which the director is serving at the request of the Company. Indemnification is
permitted for expenses and reasonable settlement amounts incurred in connection with a
proceeding by or in the right of the Company and for expenses, judgments, penalties, fines
and reasonable settlement amounts incurred in connection with the proceeding other than by
or in the right of the Company. Indemnification under the indemnity agreements is
conditioned on the director having acted in good faith and in a manner he or she
reasonably believes to be in or not opposed to the best interest of the Company and, with
respect to any criminal proceeding, he or she had no reasonable cause to believe his or
her conduct was unlawful. The Restated and Amended Articles of Incorporation of the
Company also limit the personal liability of members of its Board of Directors for
monetary damages with respect to claims by the Company or its shareholders resulting from
certain negligent acts or omissions.
Not applicable.
Reference is made to the Exhibit
Index which appears on page 7.
4
(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
thereof) which, individually or in the aggregate, represents a fundamental
change in the information set forth in the Registration Statement; and
(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 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 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 undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
registrants 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 plans 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
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 Act and will be governed by the final adjudication of
such issue.
5
PART I
INFORMATION REQUIRED
IN THE SECTION 10(a) PROSPECTUS
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents
by Reference
(a)
The Companys latest Annual Report on Form 10-K filed pursuant to Section
13(a) of the Securities Exchange Act of 1934;
(b)
All other reports or documents filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year
covered by the Annual Report on Form 10-K referenced to in (a) above; and
(c)
The description of the Companys Common Stock is contained in the
Companys Registration Statement filed pursuant to Section 12 of the
Exchange Act and is incorporated in this Registration Statement by reference,
including any subsequent amendments or reports filed for the purpose of updating
such description.
Item 4. Description of
Securities
Item 5. Interests of
Named Experts and Counsel
Item 6. Indemnification
of Directors and Officers
Item 7. Exemption from
Registration Claimed
Item 8. Exhibits
Item 9. Undertakings
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 Grand Rapids, State of Michigan, on
the 18th day of April, 2008.
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints Michael B. Glenn and Michael R. Cole, and each of them, 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 and any other regulatory authority, granting
unto said attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing required and 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 below on April 18, 2008, by the following persons in the capacities indicated.
6
SIGNATURES
UNIVERSAL FOREST PRODUCTS, INC.
By /s/ Michael B. Glenn
Michael B. Glenn
Chief Executive Officer
By /s/ Michael R. Cole
Michael R. Cole
Chief Financial Officer and
Principal Accounting Officer
POWER OF ATTORNEY
By: /s/ Peter F. Secchia
Peter F. Secchia, Director
By: /s/ William G. Currie
William G. Currie, Director
By: /s/ John C. Engler
John C. Engler, Director
By: /s/ John W. Garside
John W. Garside, Director
By: /s/ Louis A. Smith
Louis A. Smith, Director
By: /s/ Gary F. Goode
Gary F. Goode, Director
By: /s/ Mark A. Murray
Mary A. Murray, Director
By: /s/ Dan M. Dutton
Dan M. Dutton, Director
By: /s/ Michael B. Glenn
Michael B. Glenn, Director
7
EXHIBIT INDEX
Exhibit No.
Description
4.1
Specimen
form of Stock Certificate for Common Stock was filed as Exhibit 4(a) to a
Registration Statement on Form S-1 (No. 33-69474), incorporated
herein by reference
5.1
Opinion
of Varnum, Riddering, Schmidt & Howlett LLP regarding legality of securities being
registered
23.1
Consent
of Independent Registered Public Accounting Firm
23.2
Consent
of Varnum, Riddering, Schmidt & Howlett LLP (included in opinion filed as Exhibit 5.1)
24.1
Power
of Attorney (included on the signature page of this Registration Statement)
April 18, 2008
Universal Forest
Products, Inc.
2801 East Beltline, N.E.
Grand Rapids, MI 49525
Re: |
Registration
Statement on Form S-8 Relating to the Universal Forest
Products, Inc. 2002 Employee Stock Purchase Plan pursuant to the amendment to the Plan approved on April 16, 2008 (collectively, the Plan) |
Gentlemen:
With respect to the Registration Statement on Form S-8 (the Registration Statement) filed by Universal Forest Products, Inc., a Michigan corporation (the Company), with the Securities and Exchange Commission, for the purpose of registering under the Securities Act of 1933, as amended, 200,000 shares of the Companys common stock, no par value, for issuance pursuant to the Plan, we have examined such documents and questions of law we consider necessary or appropriate for the purpose of giving this opinion.
On the basis of such evaluation, we advise you that in our opinion the 200,000 shares covered by the Registration Statement, at the prices described in the Registration Statement, and upon delivery of such shares and payment therefor in accordance with the terms stated in the Plan and the Registration Statement, will be duly and legally authorized, issued and outstanding, and will be fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or under the rules and regulations of the Securities and Exchange Commission relating thereto.
Sincerely,
VARNUM, RIDDERING, SCHMIDT & HOWLETT LLP
/s/ Varnum, Riddering, Schmidt & Howlett LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Universal Forest Products, Inc. 2002 Employee Stock Purchase Plan of our reports dated February 13, 2008, with respect to the consolidated financial statements and schedule of Universal Forest Products, Inc and subsidiaries included in its Annual Report (Form 10-K) for the fiscal year ended December 29, 2007, and the effectiveness of internal control over financial reporting of Universal Forest Products, Inc. and subsidiaries filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Grand Rapids, Michigan
April 15, 2008