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As filed with the Securities and Exchange Commission on June 25, 2001,
Registration No. ___-___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
POWELL INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
NEVADA 88-0106100
(State of Incorporation) (I.R.S. Employer Identification No.)
8550 MOSLEY DRIVE, HOUSTON, TEXAS 77075-1180
(Address of principal executive offices) (zip code)
1992 POWELL INDUSTRIES, INC. STOCK OPTION PLAN
2000 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
COPIES OF ALL COMMUNICATIONS TO:
ROBERT B. GREGORY MARK W. EISENBRAUN, ESQ.
Corporate Controller Winstead Sechrest & Minick P.C.
8550 Mosley Drive 910 Travis Street, Suite 2400
Houston, Texas 77075-1180 Houston, Texas 77002
(713) 944-6900 (713) 650-2727
(Name and address and telephone
number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Amount maximum Maximum Amount of
Securities Being Offering Price Aggregate Registration
Being Registered Registered(1) Per Share(2) Offering Price(2) Fee
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Common Stock, $.01
par value per share 1,334,254 $24.79 $33,076,157 $8,269.04
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, (the
"Securities Act") this registration statement also covers an
indeterminate number of shares as may be required to cover possible
adjustments under the Plan by reason of any stock dividend, stock
split, share combination, exchange of shares, recapitalization, merger,
consolidation, separate reorganization or the like of or by the
Registrant.
(2) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(h), based on the average of the high and low
prices of the Common Stock of the Registrant on the NASDAQ National
Market System on June 20, 2001.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
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*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with the
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents (as filed with the Securities and Exchange
Commission (the "Commission") by the Registrant) are incorporated by reference
in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended October 31, 2000 and the Form 10-K/A amendment filed February 16, 2001.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") since October 31, 2000.
(c) The description of the Common Stock contained in the Registration
Statement of the Registrant filed with the Commission on March 31, 1977.
(d) All documents subsequently filed by the Registrant pursuant to
Section 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
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is incorporated under the laws of the State of Nevada.
Section 78.037 of the General Corporation Law of Nevada (the "NCL") enables a
corporation in its original articles of incorporation or an amendment thereto to
eliminate or limit the personal liability of a director or officer to the
corporation or its stockholders for damages for breach of the director's or
officer's fiduciary duty, except (i) for acts or omissions which involve
intentional misconduct, fraud or a knowing violation of law, or (ii) for the
payment of distributions in violation of Section 78.300 of the NCL (providing
for liability of directors for unlawful payment of distributions). The
Registrant's Articles of Incorporation contain provisions permitted by Section
78.037 of the NCL.
Section 78.7502 of the NCL provides that a Nevada corporation may
indemnify any person who is or was 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, except an action by or in the
right of the corporation, by reason of the fact that he 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 him in connection with the
action, suit or proceeding if he acted in good faith and in a manner which he
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 his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and that, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
Section 78.7502 also 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 he 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 amounts paid in settlement and attorneys'
fees actually and reasonably incurred by him in connection with the defense or
settlement of the action or suit if he acted in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
corporation. Indemnifica-tion may not be made for any claim, issue or matter as
to which such a person has been adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable to the corporation or
for amounts paid in settlement to the corporation, unless and only to the extent
that the court in which the action or suit was brought or other court of
competent jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
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Section 78.7502 further provides that to the extent a director,
officer, employee or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, the corporation shall indemnify
him against expenses, including attorneys' fees, actually and reasonably
incurred by him in connection with the defense.
Section 78.751 of the NCL provides that any discretionary
indemnification under Section 78.7502 (unless ordered by a court or advanced
pursuant to subsection 2 of Section 78.751) may be made by the corporation only
as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances. Such
determination must be made (i) by the stockholders, (ii) by the board of
directors by majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding, (iii) by independent legal counsel in
a written opinion (if a majority vote of a quorum consisting of directors who
were not parties to the action, suit or proceedings so ordered), (iv) by
independent legal counsel in a written opinion (if a majority vote of a quorum
consisting of directors who were not parties to the action, suit or proceedings
cannot be obtained).
Section 78.751 also provides that the articles of incorporation,
bylaws, or an agreement made by the corporation may provide that the expenses of
officers and directors incurred in defending a civil or criminal action, suit or
proceeding must be paid by the corporation as they are incurred and in advance
of the final disposition of the action, suit or proceeding, upon receipt of an
undertaking by or on behalf of the director or officer to repay the amount if it
is ultimately determined by a court of competent jurisdiction that he is not
entitled to be indemnified by the corporation. The Registrant's Bylaws contain
such a provision.
Section 78.571 further provides that the indemnification and
advancement of expenses authorized in or ordered by a court pursuant to this
Section 78.751 does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the articles of
incorporation or any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, for either an action in his official capacity or an
action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to Section 78.7502 or for
the advancement of expenses made pursuant to subsection 2 of Section 78.751, may
not be made to or on behalf of any director or officer if a final adjudication
establishes that his acts or omissions involved intentional misconduct, fraud or
a knowing violation of the law and was material to the cause of action. The
Registrant's Bylaws contain provisions requiring indemnification of officers and
directors in certain circumstances.
Section 78.752 of the NCL provides that a corporation may purchase and
maintain insurance or make other financial arrangements on behalf of any person
who 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 for any liability asserted against him and liability and
expenses incurred by him in his capacity as a director, officer, employee or
agent, or arising out of his status as such, whether or not the corporation has
the authority to indemnify him against such liability and expenses under the
provisions described in the proceeding paragraphs. The other financial
arrangements made by the corporation pursuant to subsection 1 of Section 78.752
may include (i) the creation of a trust fund, (ii) the establishment of a
program of self-insurance, (iii) the securing of its obligation of
indemnification by granting a security interest or other lien on any assets of
the corporation, or (iv) the establishment of a letter of credit, guarantee or
surety. However, no financial arrangement made pursuant to subsection 2 of
Section 78.752 may provide protection for a person adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable
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for intentional misconduct, fraud or a knowing violation of law, except with
respect to the advancement of expenses or indemnification ordered by a court.
Section 78.752 also provides that any insurance or other financial
arrangement made on behalf of a person pursuant to this Section 78.752 may be
provided by the corporation or any other person approved by the board of
directors, even if all or part of the other person's stock or other securities
is owned by the corporation.
Section 78.752 provides further that in the absence of fraud: (i) the
decision of the board of directors as to the propriety of the terms and
conditions of any insurance or other financial arrangement made pursuant to this
Section 78.752 and the choice of the person to provide the insurance or other
financial arrangement is conclusive; and (ii) the insurance or other financial
arrangement: (a) is not void or voidable; and (b) does not subject any director
approving it to personal liability for his action, even if a director approving
the insurance or other financial arrangement is a beneficiary of the insurance
or other financial arrangement.
Section 78.752 provides further that a corporation or its subsidiary
which provides self-insurance for itself or for another affiliated corporation
pursuant to this Section 78.752 is not subject to the provisions of Title 57 of
the Nevada Revised Statutes.
The foregoing discussion is qualified in its entirety by reference to
the NCL and the Registrant's Articles of Incorporation and Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit Number Description
4.1 Article Fifth of the Articles of Incorporation of the Registrant contained in the
Certificate of Amendment of the Articles of Incorporation of Powell Industries, Inc.
filed with the Nevada Secretary of State on March 27, 1992 (filed as Exhibit 3 to the
Registrant's Form 10-Q for the quarter ended April 30, 1992 and incorporated herein by
reference).
4.2 1992 Powell Industries, Inc. Stock Option Plan, including form of stock option
agreement (filed with the Preliminary Proxy Statement of the Registrant dated January
24, 1992 and incorporated herein by reference).
4.3 Powell Industries, Inc. 2000 Non-Employee Director Stock Option Plan (filed as
Exhibit 10.12 to the Registrant's Form 10-K, as amended, for the year ended October 31,
2000 and incorporated herein by reference).
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5.1 Opinion re legality of Winstead Sechrest & Minick P.C.
23.1 Consent of Arthur Andersen & Co.
23.2 Consent of Winstead Sechrest & Minick P.C. (included in their opinion attached as
Exhibit 5.1).
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a)(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 this 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 this
Registration Statement; and
(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 the Registration Statement; provided,
however, that paragraphs (a)(1)(i) and (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 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
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) That, for purposes of determining any liability under the Act,
each filing of the Registrant's annual report pursuant to
Section 13(a) or 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 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 Act
may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions described
in Item 6 above, or otherwise, the Registrant has been advised
that in the opinion of the Commission such indemnification is
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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 of 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.
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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 Houston, State of Texas, on the 21st day of
June, 2001.
POWELL INDUSTRIES, INC.
By: /s/ THOMAS W. POWELL
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Thomas W. Powell
President and Chief Executive Officer
(Principal Executive and Financial Officer)
By: /s/ ROBERT B. GREGORY
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Robert B. Gregory
Corporate Controller
(Principal Accounting Officer)
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 date indicated.
SIGNATURE TITLE DATE
/s/ THOMAS W. POWELL Chairman of the Board June 21, 2001
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Thomas W. Powell
/s/ JOSEPH L. BECHERER Director June 21, 2001
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Joseph L. Becherer
/s/ EUGENE L. BUTLER Director June 21, 2001
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Eugene L. Butler
/s/ BONNIE L. POWELL Director June 21, 2001
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Bonnie L. Powell
/s/ STEVEN W. SEALE, JR. Director June 21, 2001
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Steven W. Seale, Jr.
/s/ LAWRENCE R. TANNER Director June 21, 2001
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Lawrence R. Tanner
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/s/ Robert C. Tranchon Director June 21, 2001
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Robert C. Tranchon
/s/ Ronald J. Wolny Director June 21, 2001
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Ronald J. Wolny
/s/ James F. Clark Director June 21, 2001
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James F. Clark
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EXHIBIT INDEX
Exhibit Number Description
4.1 Article Fifth of the Articles of Incorporation of the Registrant contained in the
Certificate of Amendment of the Articles of Incorporation of Powell Industries, Inc.
filed with the Nevada Secretary of State on March 27, 1992 (filed as Exhibit 3 to the
Registrant's Form 10-Q for the quarter ended April 30, 1992 and incorporated herein by
reference).
4.2 1992 Powell Industries, Inc. Stock Option Plan, including form of stock option
agreement (filed with the Preliminary Proxy Statement of the Registrant dated January
24, 1992 and incorporated herein by reference).
4.3 Powell Industries, Inc. 2000 Non-Employee Director Stock Option Plan (filed as
Exhibit 10.12 to the Registrant's Form 10-K, as amended, for the year ended October 31,
2000 and incorporated herein by reference).
5.1 Opinion re legality of Winstead Sechrest & Minick P.C.
23.1 Consent of Arthur Andersen & Co.
23.2 Consent of Winstead Sechrest & Minick P.C. (included in their opinion attached as
Exhibit 5.1).