Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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MINE SAFETY APPLIANCES COMPANY
(Exact name of issuer as specified in its charter)
Pennsylvania 25-0668780
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
121 Gamma Drive, RIDC Industrial Park,
O'Hara Township, Pittsburgh, Pennsylvania 15238
(Address of Principal Executive Offices) (Zip Code)
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1998 MANAGEMENT SHARE INCENTIVE PLAN
(Full title of the plan)
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Donald H. Cuozzo, Esquire, Mine Safety Appliances Company
121 Gamma Drive, RIDC Industrial Park,
O'Hara Township, Pittsburgh, Pennsylvania 15238
(412) 967-3133
(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered per share* offering price* fee
- --------------------------------------------------------------------------------------------------------------------
Common Stock, no par value 24,934 shs. $ 60.5625 $ 1,510,065.38
1,650 shs. $66.61875 109,920.94
573,416 shs. $ 71.00 40,712,536.00
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600,000 shs. $42,332,522.32 $14,597.42
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* Pursuant to Rules 457(h) and 457(c), the maximum offering price for shares
covered by outstanding stock options is computed on the basis of the actual
prices at which the stock options may be exercised and the maximum offering
price for the remaining shares is computed on the basis of the average of the
high and low sales prices for the Company's Common Stock on the NASDAQ National
Market System on May 4, 1998.
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PART II
INFORMATION REQUIRED IN
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by the registrant with the Securities and
Exchange Commission (File No. 0-2504) are incorporated by reference in this
Registration Statement:
(a) The registrant's latest annual report on Form 10-K filed pursuant
to Section 13(a) of the Securities Exchange Act of 1934 (the "1934 Act");
(b) All other reports filed by the registrant pursuant to Section
13(a) of the 1934 Act since the end of the fiscal year covered by the
annual report on Form 10-K referred to in paragraph (a) above; and
(c) The description of the registrant's Common Stock, no par value
(the "Common Stock"), which is contained in a registration statement filed
under the 1934 Act, including any amendment or report filed for the purpose
of updating such description.
All documents filed by the registrant pursuant to Sections 13(a), 13(c), 14
or 15(d) of the 1934 Act subsequent to the filing of the annual report on Form
10-K referred to in paragraph (a) above and prior to the filing of a post-
effective amendment which indicates that all securities offered hereby 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 a part
hereof from the date of filing of such documents, except that the information
included in any document in response to paragraphs (i), (k) or (l) of Item 402
of Regulation S-K is not incorporated by reference in this Registration
Statement.
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
contemporaneously or subsequently filed document which also is or is 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 so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
1. Pennsylvania Business Corporation Law. Sections 1741 and 1742 of the
Pennsylvania Business Corporation Law (the "BCL") provide that a business
corporation shall have the power to indemnify any person who was or is a party,
or is threatened to be made a party, to any proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person 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 or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such proceeding, if such
person acted
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in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the corporation, and, with respect to any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful. In the
case of an action by or in the right of the corporation, such indemnification is
limited to expenses (including attorneys' fees) actually and reasonably incurred
by such person in connection with the defense or settlement of such action,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person has been adjudged to be liable to the corporation
unless, and only to the extent that, a court determines upon application that,
despite the adjudication of liability but in view of all the circumstances, such
person is fairly and reasonably entitled to indemnity for the expenses that the
court deems proper.
BCL Section 1744 provides that, unless ordered by a court, any
indemnification referred to above shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct. Such determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to the proceeding; or
(2) if such a quorum is not obtainable, or if obtainable and a
majority vote of a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion; or
(3) by the shareholders.
Notwithstanding the above, BCL Section 1743 provides that to the extent
that a director, officer, employee or agent of a business corporation is
successful on the merits or otherwise in defense of any proceeding referred to
above, or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
BCL Section 1745 provides that expenses (including attorneys' fees)
incurred by an officer, director, employee or agent of a business corporation in
defending any proceeding may be paid by the corporation in advance of the final
disposition of the proceeding upon receipt of an undertaking to repay the amount
advanced if it is ultimately determined that the indemnitee is not entitled to
be indemnified by the corporation.
BCL Section 1746 provides that the indemnification and advancement of
expenses provided by, or granted pursuant to, the foregoing provisions is not
exclusive of any other rights to which a person seeking indemnification may be
entitled under any bylaw, agreement, vote of shareholders or directors or
otherwise, and that indemnification may be granted under any bylaw, agreement,
vote of shareholders or disinterested directors or otherwise for any action
taken or any failure to take any action whether or not the corporation would
have the power to indemnify the person under any other provision of law and
whether or not the indemnified liability arises or arose from any action by or
in the right of the corporation, provided, however, that no indemnification may
be made in any case where the act or failure to act giving rise to the claim for
indemnification is determined by a court to have constituted willful misconduct
or recklessness.
BCL Section 1747 permits a Pennsylvania business corporation to purchase
and maintain insurance 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 or other enterprise, against any liability asserted against such
person and incurred by him in any such capacity, or arising out of his status
as such, whether or not the corporation would have the power to indemnify the
person against such liability under the provisions described above.
2. Indemnification Bylaw. Section 7.01 of the registrant's Bylaws (the
"Indemnification Bylaw") was adopted by the shareholders at their Annual Meeting
held on April 24, 1987 and became effective on that date. Under the
Indemnification Bylaw, except as prohibited by law, every director and officer
of the registrant is entitled as of right to be indemnified by the registrant
against all expenses and liabilities incurred in connection with any actual or
threatened claim or proceeding, whether civil, criminal, administrative,
investigative or other, whether
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brought by or in the right of the registrant or otherwise, in which the director
or officer may be involved in any manner, by reason of his being or having been
a director or officer of the registrant or by reason of the fact that he is or
was serving at the request of the registrant as a director, officer, employee,
fiduciary or other representative of another corporation or other entity. In an
action brought by a director or officer against the registrant, the director or
officer is only entitled to indemnification for expenses in certain
circumstances. Each director and officer is also entitled as of right to have
his expenses in defending an action paid in advance by the registrant prior to
final disposition of the action, subject to any obligation which may be imposed
to reimburse the registrant in certain events. The Indemnification Bylaw
establishes a procedure whereby a director or officer may bring an action
against the registrant if a written claim for indemnification or advancement of
expenses is not paid by the registrant in full within thirty days after the
claim has been presented. The director or officer is also entitled to
advancement of expenses in this proceeding. The only defense to an action to
recover a claim for indemnification is that the indemnitee's conduct was such
that under Pennsylvania law the registrant is prohibited from indemnifying the
indemnitee. The only defense to an action to recover payment of expenses in
advance is failure by the indemnitee to make an undertaking to reimburse the
registrant if such an undertaking is required.
The Indemnification Bylaw applies to every action, other than actions filed
prior to January 27, 1987, except that it does not apply to the extent that
Pennsylvania law does not permit its application to any breach or failure of
performance of duty by a director or officer occurring prior to January 27,
1987. Any amendment or repeal of the Indemnification Bylaw will operate
prospectively only and will not affect any action taken, or failure to act, by a
director or officer prior to the adoption of such amendment or repeal.
3. Director and Officer Liability Insurance. The registrant maintains
director and officer liability insurance covering its directors and officers
with respect to liability which they may incur in connection with their serving
as such, which liability could include liability under the Securities Act of
1933. Under the insurance, the registrant is entitled to reimbursement for
amounts as to which the directors and officers are indemnified under the
Indemnification Bylaw. The insurance may also provide certain additional
coverage for the directors and officers against certain liability even though
such liability is not subject to indemnification under the Indemnification
Bylaw.
4. Indemnification Agreements. At their Annual Meeting held on April 24,
1987, the shareholders also approved a proposed form of Indemnification
Agreement to be entered into between the registrant and each of its present and
future directors and such other officers, employees and agents of the registrant
and its subsidiaries as shall be designated from time to time by the Board of
Directors.
The form of agreement provides essentially the same rights to
indemnification against liabilities and expenses as are provided in the
Indemnification Bylaw. In addition, the form of agreement requires the
registrant to either maintain the liability insurance coverage currently in
effect for the benefit of the contractee or to hold the contractee harmless to
the full extent of such coverage.
Further, the form of agreement provides that if the full indemnification
claimed by the contractee may not be paid by the registrant because prohibited
by law and the registrant is jointly liable with the contractee as to the matter
for which indemnification was sought (or would be so liable if the registrant
were joined in such matter), the contractee has a right to contribution from the
registrant for the amount of any expenses and liabilities incurred by the
contractee as to such matter based on the relative benefits received by the
registrant and the contractee from the transaction from which the liability
arose and the relative fault of the registrant (including the registrant's other
directors, officers, employees or agents) and the contractee in connection with
the events which resulted in such expenses or liability, as well as any other
relevant equitable considerations.
Under the form of agreement, a contractee is entitled to the rights to
indemnification for expenses and liability, advancement of expenses and
contribution provided by the agreement notwithstanding any amendment or repeal
of the Indemnification Bylaw. In addition, although a change in law restricting
indemnification rights would automatically restrict the indemnification rights
provided under the Indemnification Bylaw, the form of agreement provides that a
change in law restricting indemnification rights will not affect the rights of a
contractee under the agreement unless the law so requires.
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Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
An Exhibit Index, containing a list of all exhibits filed with this
Registration Statement, is included on page II-8.
Item 9. Undertakings.
(a) Rule 415 offering.
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 (the "1933 Act");
(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, represent a fundamental change in the information set forth
in the registration statement;
(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 (1)(i) and (1)(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 by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 (the "1934 Act") that are incorporated by reference in the
registration statement;
(2) That, for the purpose of determining any liability under the 1933
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; and
(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) Filings incorporating subsequent Exchange Act Documents by Reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of the 1934 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.
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(h) Filing of Registration Statement on Form S-8.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 6 above, 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
1933 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 1933 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 Township of O'Hara, Pennsylvania, on the 5th day of May,
1998.
MINE SAFETY APPLIANCES COMPANY
By /s/ John T. Ryan III
-----------------------------------
John T. Ryan III, Chairman of the
Board and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John T. Ryan III, James E. Herald and Donald H.
Cuozzo, and each of them, the undersigned's true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for and in the
undersigned's 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, 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, as fully to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents or any of them, or their or his substitutes, may lawfully do or
cause to be done by virtue thereof.
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 dates indicated.
Signature Capacity Date
--------- -------- ----
/s/ John T. Ryan III Chairman of the Board, Chief May 5, 1998
- ---------------------------------------------- Executive Officer and Director
John T. Ryan III
/s/ James E. Herald Vice President - Finance, May 5, 1998
- ---------------------------------------------- Principal Financial and Accounting
James E. Herald Officer
/s/ Joseph L. Calihan Director May 5, 1998
- ----------------------------------------------
Joseph L. Calihan
/s/ Calvin A. Campbell, Jr. Director May 5, 1998
- ----------------------------------------------
Calvin A. Campbell, Jr.
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Signature Capacity Date
--------- -------- ----
/s/ G. Donald Gerlach Director May 5, 1998
- ----------------------------------------------
G. Donald Gerlach
/s/ Helen Lee Henderson Director May 5, 1998
- ----------------------------------------------
Helen Lee Henderson
/s/ Thomas B. Hotopp Director May 5, 1998
- ----------------------------------------------
Thomas B. Hotopp
/s/ Thomas H. Witmer Director May 5, 1998
- ----------------------------------------------
Thomas H. Witmer
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MINE SAFETY APPLIANCES COMPANY
1998 Management Share Incentive Plan
--------------
REGISTRATION STATEMENT
ON FORM S-8
Exhibit Index
(Pursuant to Item 601 of Regulation S-K)
Exhibit
No. Description and Method of Filing
- ------------ -------------------------------------------------------------------------------------------------
4.1 Restated Articles of Incorporation of the registrant, as amended to April 27, 1989 (incorporated
herein by reference to Exhibit 3 to the registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1994).
4.2 Bylaws of the registrant, as amended to August 29, 1990 (incorporated herein by reference to
Exhibit 3 to the registrant's Quarterly Report on Form 10-Q for the quarter ended September 30,
1995).
4.3 Mine Safety Appliances Company Junior Participating Preferred Stock Rights Agreement dated as of
February 10, 1997 (incorporated herein by reference to Exhibit 1 to the registrant's Form 8-A
Registration Statement dated February 25, 1997).
5.1 Opinion of Reed Smith Shaw & McClay LLP as to the legality of the shares being registered (filed
herewith).
23.1 Consent of Reed Smith Shaw & McClay LLP (contained in their opinion filed herewith as Exhibit
5.1).
23.2 Consent of Price Waterhouse LLP, independent accountants (filed herewith).
24.1 Power of Attorney, contained on the signature page to this Registration Statement.
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Exhibit 5.1
Reed Smith Shaw & McClay LLP
Writer's Direct Numbers: 435 Sixth Avenue
Phone 412-288-3310 Pittsburgh, Pennsylvania 15219-1886
Fax 412-288-3063 Phone: 412-288-3131
nwwinter@rssm.com Fax: 412-288-3063
May 5, 1998
Mine Safety Appliances Company
121 Gamma Drive
RIDC Industrial Park
O'Hara Township
Pittsburgh, PA 15238
Re: Registration Statement on Form S-8 for
the 1998 Management Share Incentive Plan
----------------------------------------
Gentlemen:
We have acted as counsel to Mine Safety Appliances Company, a Pennsylvania
corporation (the "Company"), in connection with the above-captioned Registration
Statement (the "Registration Statement") relating to up to 600,000 shares of
Common Stock, without par value, of the Company (the "Common Stock") which may
be issued under the Company's 1998 Management Share Incentive Plan (the "Plan").
Either authorized but unissued or treasury shares of Common Stock may be issued
under the Plan. In rendering our opinion below, we have assumed that any
previously issued shares reacquired by the Company and reissued as treasury
shares under the Plan will have been duly authorized, validly issued and fully
paid at the time of their original issuance.
In connection with this opinion, we have examined, among other things:
(1) the Restated Articles of Incorporation and Bylaws of the Company,
as amended to date;
(2) a form of resolutions adopted by the Board of Directors of the
Company on March 11, 1998 adopting the Plan, authorizing the issuance of up
to 600,000 shares of Common Stock thereunder and reserving 600,000 shares
of Common Stock for such purpose;
(3) the Plan as set forth in Annex A to the Company's definitive Proxy
Statement dated March 25, 1998 for the Company's 1998 Annual Meeting; and
(4) a certificate of the judge of elections certifying approval of the
adoption of the Plan by a majority of the shares of Common Stock voted on
the proposal at the Company's 1998 Annual Meeting.
Based upon the foregoing and upon an examination of such other documents,
corporate proceedings, statutes, decisions and questions of law as we considered
necessary in order to enable us to furnish this opinion, and subject to the
assumption set forth above, we are pleased to advise you that in our opinion the
600,000 shares of Common Stock being registered and which may be issued by the
Company pursuant to the Plan have been duly authorized, and upon such issuance
in accordance with the provisions of the Plan, such shares will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Yours truly,
/s/ Reed Smith Shaw & McClay LLP
REED SMITH SHAW & McCLAY LLP
Harrisburg, PA McLean, VA Newark, NJ New York, NY Philadelphia, PA Princeton, NJ
Washington, DC
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 for the 1998 Management Share Incentive Plan of Mine
Safety Appliances Company (the "Company") of our report dated February 18, 1998,
which appears on page 13 of the 1997 Annual Report to Shareholders of the
Company, which is incorporated by reference in the Company's Annual Report on
Form 10-K for the year ended December 31, 1997. We also consent to the
incorporation by reference of our report on the Financial Statement Schedule,
which appears on page F-1 of such Annual Report on Form 10-K.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
600 Grant Street
Pittsburgh, Pennsylvania 15219
May 6, 1998
