As filed with the Securities and Exchange Commission on July 3, 2002.
File No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________________
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 30701
(706) 629-7721
(Address, including zip code, and telephone number of Principal Executive
Offices)
Mohawk Industries, Inc. 2002 Long-Term Incentive Plan
(Full Titles of the Plans)
Copy to:
JEFFREY S. LORBERBAUM LAURA G. THATCHER
President and Chief Executive Officer Alston & Bird LLP
Mohawk Industries, Inc. One Atlantic Center
160 S. Industrial Blvd. 1201 West Peachtree Street, NW
Calhoun, Georgia 30701 Atlanta, Georgia 30309-3424
(706) 629-7721 (404) 881-7546
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
_______________________
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered Offering Price Aggregate Registration Fee
Per Share (1) Offering Price (1)
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Common Stock 3,200,000 (2) $58.38 $186,816,000 $17,188
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(1) Determined in accordance with Rule 457(h), the registration fee calculation
is based on the average of the high and low prices of the Company's Common
Stock reported on the New York Stock Exchange on July 2, 2002.
(2) Amount to be registered includes 3,200,000 shares to be issued pursuant to
the grant or exercise of awards to employees, officers and directors under
the Mohawk Industries, Inc. 2002 Long-Term Incentive Plan.
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 Plan as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended.
(b) Upon written or oral request, the Company 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 Company 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 Sidney J. Frost at the address and telephone number on the cover of
this Registration Statement.
PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents have been filed by Mohawk Industries, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and are deemed to be a part hereof from the date of the filing of such
documents:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001;
(2) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended March 30, 2002;
(3) The Company's Current Reports on Form 8-K filed with the Commission
on June 5, 2002, April 16, 2002, March 26, 2002, March 20, 2002, March 19, 2002,
and February 8, 2002;
(4) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 2001;
(5) The description of Common Stock contained in the Company's
Registration Statement filed under Section 12 of the Exchange Act, including all
amendments or reports filed for the purpose of updating such description; and
(6) All other documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
securities offered have been sold or that deregisters all securities that remain
unsold.
Any statement contained in a document incorporated or deemed
incorporated herein by reference shall be deemed to be modified or superseded
for the purpose of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be, incorporated herein by reference 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.
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Item 4. Description of Securities. Not Applicable.
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:
. any breach of the director's duty of loyalty to Mohawk or its
stockholders;
. acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. unlawful payments of dividends or unlawful stock repurchases or
redemptions, as provided in Section 174 of the Delaware General
Corporation Law; or
. any transaction from which the director derived an improper
benefit.
Section 145 of the Delaware General Corporation Law permits
indemnification against expenses (including attorney's 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.
Item 7. Exemption from Registration Claimed. Not Applicable.
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Item 8. Exhibits
See Exhibit Index, which is incorporated hereby reference.
Item 9. Undertakings
(a) The undersigned Company 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 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;
(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 this
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and
the 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 this 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 being 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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company'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 Company pursuant to the foregoing provisions, or otherwise, the Company 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,
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therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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.
(signatures on following page)
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 June 28, 2002.
MOHAWK INDUSTRIES, INC.
By: /s/ Jeffrey S. Lorberbaum
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Jeffrey S. Lorberbaum
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John D. Swift and Jerry L. Melton, and
each of them (with full power in each to act alone), 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 or 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, granting unto said 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, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of the, or their or
his 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 as of the dates set forth below.
Signatures Title Date
---------- ----- ----
/s/ Jeffrey S. Lorberbaum President and Chief Executive Officer June 28, 2002
------------------------------------ (Principal Executive Officer)
Jeffrey S. Lorberbaum
/s/ John D. Swift Vice President and Chief Financial June 28, 2002
------------------------------------ Officer (Principal Financial and
John D. Swift Accounting Officer)
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Chairman of the Board of Directors , 2002
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David L. Kolb
/s/ Leo Benatar Director June 28, 2002
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Leo Benatar
/s/ Bruce C. Bruckmann Director June 28, 2002
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Bruce C. Bruckmann
/s/ Larry W. McCurdy Director June 28, 2002
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Larry W. McCurdy
/s/ Robert N. Pokelwaldt Director June 28, 2002
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Robert N. Pokelwaldt
/s/ John F. Fiedler Director June 18, 2002
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John F. Fiedler
/s/ W. Christopher Wellborn Director June 19, 2002
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W. Christopher Wellborn
/s/ Sylvester H. Sharpe Director June 28, 2002
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Sylvester H. Sharpe
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EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
4.1 Restated Certificate of Incorporation of the Registrant, as
amended. (Incorporated herein by reference to Exhibit 3.1 in
the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998.)
4.2 Amended and Restated Bylaws of the Registrant. (Incorporated
herein by reference to Exhibit 3.1 of the the Registrant's
Registration Statement on Form S-4, Registration No.
333-74806, as filed February 6, 2002.)
5.1 Opinion of Alston & Bird LLP as to the legality of the
securities to be registered
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
24.1 Power of Attorney (included on signature page)
99.1 Mohawk Industries, Inc. 2002 Long-Term Incentive Plan