As filed with the Securities and Exchange Commission March 20, 2002.
File No. 333-74806
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-4 REGISTRATION STATEMENT
ON
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MOHAWK INDUSTRIES, INC.
(Exact Name of Issuer as Specified in its Charter)
Delaware 52-1604305
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
160 S. Industrial Blvd.
Calhoun, Georgia 30703
(706) 629-7721
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(Address, including zip code, and telephone number of
Principal Executive Offices)
Dal-Tile International Inc. 1990 Stock Option Plan
(as Amended and Restated) (also known as the 2000 Amended and Restated
Stock Option Plan)
(Full Title of the Plan)
Jeffrey S. Lorberbaum Copy to:
President and Chief Executive Officer Michael L. Stevens
Mohawk Industries, Inc. Alston & Bird LLP
160 S. Industrial Blvd. One Atlantic Center
Calhoun, Georgia 30703 1201 West Peachtree Street, NW
(706) 6297721 Atlanta, Georgia 30309-3424
(Name and address of agent for service) (404) 881-7970
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EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to Form S-4 Registration Statement on
Form S-8 filed by Mohawk Industries, Inc. (the "Registrant" or "Mohawk") relates
to 2,086,305 shares of the Registrant's common stock, $.01 par value per share
(the "Shares"). All of the Shares are issuable pursuant to options issued under
the Dal-Tile International Inc. 1990 Stock Option Plan (as amended) (also known
as the 2000 Amended and Restated Stock Option Plan). Such options were assumed
by the Registrant pursuant to the Agreement and Plan of Merger, as amended,
dated as of November 19, 2001, by and between the Registrant, Maverick Merger
Sub, Inc. and Dal-Tile International Inc. All of the Shares registered hereby
were previously registered on the Registrant's Registration Statement on Form
S-4 (File No. 333-74806) (the "Form S-4") and are being transferred to this
Registration Statement on Form S-8 by way of this Post-Effective Amendment No. 1
to the Form S-4.
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PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
(a) The documents constituting Part I of this Registration Statement will
be sent or given to participants in the Dal-Tile International Inc. 1990 Stock
Option Plan (as amended and restated) (also known as the 2000 Stock Option
Plan), (the "Plan") as specified by Rule 428(b)(1) under the Securities Act of
1933, as amended.
(b) Upon written or oral request, the Registrant will provide, without
charge, the documents incorporated by reference in Item 3 of Part II of this
registration statement. The documents are incorporated by reference in the
Section 10(a) prospectus. The Registrant will also provide, without charge, upon
written or oral request, other documents required to be delivered to employees
pursuant to Rule 428(b). Requests for the above mentioned information should be
directed to the Registrant at (706) 629-7721 attn: Jerry L. Melton.
PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are incorporated herein by reference
and deemed to be a part hereof:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000;
(2) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since December 31, 2000; and
(3) The description of Common Stock contained in the Registrant's
Registration Statement filed under Section 12 of the Exchange Act, including all
amendments or reports filed for the purpose of updating such description.
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 hereby have
been sold or which deregisters all such 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 filing of such documents. Any statement
contained in a document incorporated by reference herein and filed prior to the
filing hereof shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein modifies
or supersedes such statement, and any statement contained herein or in any other
document 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 in any other subsequently filed document which also is
incorporated by reference herein modifies or supersedes such statement. Any such
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.
II-1
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Article 11 of Mohawk's restated certificate of incorporation, as amended,
contains a provision, permitted by Section 102(b)(7) of the Delaware General
Corporation Law, limiting the personal monetary liability of directors for
breach of fiduciary duty as a director. This provision and Delaware law provide
that the provision does not eliminate or limit liability for:
o for any breach of the director's duty of loyalty to Mohawk or its
stockholders;
o for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
o for unlawful payments of dividends or unlawful stock repurchases or
redemptions, as provided in Section 174 of the Delaware General
Corporation Law; or
o for any transaction from which the director derived an improper benefit.
Section 145 of the Delaware General Corporation Law permits indemnification
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with actions, suits
or proceedings in which a director, officer, employee or agent is a party by
reason of the fact that he or she is or was such a director, officer, employee
or agent, if he or she acted in good faith and in a manner he or she 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 or her conduct was unlawful. However, in connection with actions by
or in the right of the corporation, such indemnification is not permitted if
such person has been adjudged liable to the corporation unless the court
determines that, under all of the circumstances, such person is nonetheless
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper. Article 12 of Mohawk's restated certificate of incorporation, as
amended, provides for such indemnification.
Section 145 of the Delaware General Corporation Law also permits a
corporation to purchase and maintain insurance on behalf of its directors and
officers against any liability that may be asserted against, or incurred by,
such persons in their capacities as directors or officers of the corporation
whether or not the corporation would have the power to indemnify such persons
against such liabilities under the provisions of such sections. Mohawk has
purchased such insurance.
Section 145 of the Delaware General Corporation Law further provides that
the statutory provision is not exclusive of any other right to which those
seeking indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or independent directors, or otherwise,
both as to action in such person's official capacity and as to action in another
capacity while holding such office.
Article XII of Mohawk's amended and restated bylaws contains provisions
regarding indemnification that parallel those described above.
II-2
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
See Exhibit Index, which is incorporated herein by reference.
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:
(i) 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 this registration statement;
(ii) 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 being offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(iii) 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.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in this
registration statement.
(b) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant'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 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.
(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.
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SIGNATURES
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 Calhoun, State of Georgia, on the 18th day of March,
2002.
MOHAWK INDUSTRIES, INC.
By: /s/ Jeffrey S. Lorberbaum
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Jeffrey S. Lorberbaum
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed below by the following
persons in the capacities and on the dates indicated.
Name Capacity Date
---- -------- ----
/s/ Jeffrey S. Lorberbaum President and Chief Executive Officer March 18, 2002
--------------------------- (Principal Executive Officer)
Jeffrey S. Lorberbaum
/s/ John D. Swift Vice President and Chief Financial March 18, 2002
--------------------------- Officer (Principal Financial and
John D. Swift Accounting Officer)
* Chairman of the Board of Directors March 18, 2002
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David L. Kolb
* Director March 18, 2002
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Leo Benatar
* Director March 18, 2002
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Bruce C. Bruckmann
*
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Larry W. McCurdy Director March 18, 2002
* Director March 18, 2002
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Robert N. Pokelwaldt
II-4
* Director March 18, 2002
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Sylvester H. Sharpe
*By: /s/ John D. Swift
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Attorney-in-fact
II-5
EXHIBIT INDEX
Exhibit Number Description
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5.1 Opinion of Alston & Bird LLP as to the validity of
the shares of Mohawk Industries, Inc. common stock
23.1 Consent of Alston & Bird LLP (included in Exhibit 5.1)
23.2 Consent of KPMG LLP
23.3 Consent of Ernst & Young LLP
99.1* Dal-Tile International Inc. 1990 Stock Option Plan,
as amended and restated (also known as the 2000
Amended and Restated Stock Option Plan) (incorporated
herein by reference to Appendix B in Dal-Tile
International Inc.'s Definitive Proxy Statement for
its 2001 Annual Meeting of stockholders, as filed
with the Commission on March 27, 2001).
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* Indicates Exhibit incorporated by reference