Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
GRIFFON
CORPORATION
(Exact
Name of Registrant as Specified in Its Charter)
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Delaware
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11-1893410
|
|
(State
or Other Jurisdiction of
Incorporation
or Organization)
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(I.R.S. Employer
Identification No.)
|
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100 Jericho Quadrangle, Suite 224,
Jericho, New York
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11753
|
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(Address of Principal Executive
Offices)
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(Zip
Code)
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GRIFFON
CORPORATION 2006 EQUITY INCENTIVE PLAN
AS
AMENDED
(Full
Title of the Plan)
Patrick
L. Alesia, Chief Financial Officer
Griffon
Corporation
100
Jericho Quadrangle
Suite
224
Jericho,
New York 11753
(Name and
Address of Agent for Service)
(516)
938-5544
(Telephone
Number, Including Area Code, of Agent For Service)
copy
to:
Gary
T. Moomjian, Esq.
Moomjian,
Waite, Wactlar & Coleman, LLP
100
Jericho Quadrangle
Suite
225
Jericho,
New York 11753
(516) 937-5900
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer
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o
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Accelerated filer
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x
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Non-accelerated filer
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o
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Smaller reporting company
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o
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| (Do not check if a smaller reporting company) | |||
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class of
Securities
To Be
Registered
|
Amount
To Be Registered (1)
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Proposed
Maximum
Offering
Price Per
Share
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
|
|
Common
Stock, par value $.25, reserved for future grants
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5,750,000
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$10.06
(2)(3)
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$57,845,000
(2)(3)
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$2,273.31
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____________________
(1) Pursuant
to Rule 416 promulgated under the Securities Act of 1933, as amended (the
“Securities Act”), the Registration Statement also covers an indeterminate
number of additional shares of Common Stock which may become issuable pursuant
to anti-dilution provisions contained in the Griffon Corporation 2006 Equity
Incentive Plan, as amended (the “Plan”).
(2) Estimated
solely for the purpose of calculating the registration fee.
(3) Computed
in accordance with Rules 457(c) and 457(h) of the Securities Act based upon the
average of the high and low prices for the Common Stock on February 3,
2009.
EXPLANATORY
NOTE
This Registration Statement relates to
the registration of 5,750,000 shares of Common Stock, par value $.25 per share,
of Griffon Corporation (the “Registrant”) reserved for issuance under the
Plan. The Plan authorizes the grant of Options, Performance Shares,
Performance Units, Stock Appreciation Rights, Restricted Shares and Deferred
Shares.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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Item
3.
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Incorporation
of Documents by Reference.
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The Registrant hereby incorporates by
reference the documents listed below. In addition, all documents and
reports subsequently filed by the Registrant with the Securities and Exchange
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 prior to the filing of a post-effective amendment to this
Registration Statement, 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 herein or in any document incorporated or deemed to be
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 herein or in any other subsequently filed document that also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed to constitute a part of this Registration Statement, except as modified
or superseded.
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(1)
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The
Registrant’s Annual Report on Form 10-K for the fiscal year ended
September 30, 2008;
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(2)
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The
Registrant’s Proxy Statement dated December 29, 2008 for its 2009 Annual
Meeting of Stockholders;
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(3)
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The
Registrant’s Quarterly Report on Form 10-Q for the quarter ended December
31, 2008;
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(4)
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The
Registrant’s Current Report on Form 8-K (Date of Report: October 1, 2008)
filed on October 1, 2008;
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(5)
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The
Registrant’s Current Report on Form 8-K (Date of Report: November 20,
2008) filed on November 20, 2008.
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(6)
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The
description of the Registrant’s Common Stock contained in the Registrant’s
Registration Statement on Form 8-A, dated January 19, 1993, including any
amendment(s) or report(s) filed for the purpose of updating such
description.
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The Registrant will provide without
charge to each person to whom a copy of this Registration Statement is
delivered, upon the written or oral request of such person, a copy of any or all
of the documents incorporated by reference (except for exhibits thereto unless
specifically incorporated by reference herein). Requests for such
copies should be directed to the Secretary, Griffon Corporation, 100 Jericho
Quadrangle, Suite 224, Jericho, New York 11753, (516) 938-5544.
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Item
4.
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Description
of Securities.
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Not
applicable.
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Item
5.
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Interests
of Named Experts and Counsel.
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Not
applicable.
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Item
6.
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Indemnification
of Directors and Officers.
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Under the provisions of the Certificate
of Incorporation and the By-Laws of the Registrant, each person who is or was a
director or officer of the Registrant shall be indemnified by the Registrant as
of right to the fullest extent permitted or authorized by the General
Corporation Law of Delaware.
Under such law, to the extent that such
person is successful on the merits of defense of a suit or proceeding brought
against him by reason of the fact that he is a director or officer of the
Registrant, he shall be indemnified against expenses (including attorneys’ fees)
reasonably incurred in connection with such action.
If unsuccessful in defense of a
third-party civil suit or a criminal suit is settled, such a person shall be
indemnified under such law against both (1) expenses
(including attorneys’ fees) and (2) judgments, fines and amounts paid
in settlement if he acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the Registrant,
and with respect to any criminal action, had no reasonable cause to believe his
conduct was unlawful.
If unsuccessful in defense of a suit
brought by or in the right of the Registrant, or if such suit is settled, such a
person shall be indemnified under such law only against expenses (including
attorneys’ fees) incurred in the defense or settlement of such suit if he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Registrant except that if such a person is
adjudicated to be liable in such suit for negligence or misconduct in the
performance of his duty to the Registrant, he cannot be made whole even for
expenses unless the court determines that he is fairly and reasonably entitled
to be indemnified for such expenses.
The officers and directors of the
Registrant are covered by officers’ and directors’ liability
insurance. The Registrant has entered into Indemnification Agreements
with its directors and officers. The Agreements provide for
reimbursement for all direct and indirect costs of any type or nature whatsoever
(including attorneys’ fees and related disbursements) actually and reasonably
incurred in connection with either the investigation, defense or appeal of a
Proceeding, as defined, including amounts paid in settlement by or on behalf of
an Indemnitee, as defined.
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Item
7.
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Exemption
from Registration Claimed.
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Not
applicable.
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Item
8.
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Exhibits.
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4.1
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Restated
Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of
the Registrant’s Annual Report on Form 10-K for the fiscal year ended
September 30, 1995)
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4.2
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Certificate
of Amendment to the Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 of the Registrant’s Form 10-Q for the quarter
ended March 31, 2008)
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4.3
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Amended
By-laws (incorporated by reference to Exhibit 3 of the Registrant’s
Current Report on Form 8-K (Date of Report: May 14, 2008) filed on May 14,
2008)
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4.4
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Griffon
Corporation 2006 Equity Incentive Plan, as amended (incorporated by
reference to Exhibit 10.1 of the Registrant’s Quarterly Report on Form
10-Q for the quarter ended December 31,
2008)
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5.1
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Opinion
of Moomjian, Waite, Wactlar & Coleman,
LLP
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23.1
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Consent
of Moomjian, Waite, Wactlar & Coleman, LLP (included in their opinion
filed as Exhibit 5.1 hereto)
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23.2
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Consent
of Grant Thornton LLP
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24
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Powers
of Attorney (included in signature page
hereof)
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Item
9.
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Undertakings.
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(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, represent a fundamental change
in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective
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:
(A) Paragraphs
(a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration
statement is on Form S-8 (§ 239.16b of this chapter), and the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
(15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration
statement; and
(B) Paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the
registration statement is on Form S-3 (§ 239.13 of this chapter) or Form F-3 (§
239.33 of this chapter) and the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission 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, or is contained in a form or prospectus
filed pursuant to Rule 424(b) (§ 230.424(b) of this chapter) that
is part of 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 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 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 the 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 policy as expressed in the Act and will be
governed by final adjudication of such issue.
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
Jericho, State of New York, on February 9, 2009.
| GRIFFON CORPORATION | |||
|
|
By:
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/s/ Ronald J. Kramer | |
| Ronald J. Kramer | |||
| Chief Executive Officer | |||
| (Principal Executive 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.
Each
person whose signature appears below constitutes and appoints Ronald J. Kramer
and Patrick L. Alesia, and each of them, with full power of substitution, his
true and lawful attorney-in-fact and agent to do any and all acts and things in
his name and on his behalf in his capacity indicated below which they or either
of them may deem necessary or advisable to enable Griffon Corporation to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement including specifically, but not limited to, power and
authority to sign for him in his name in the capacities stated below, any and
all amendments (including post-effective amendments) thereto, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in such connection, 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 or substitutes, may lawfully do or cause to be done by virtue
thereof.
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Signature
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Title
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Date
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/s/ Harvey R. Blau
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Chairman
of the Board
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February
9, 2009
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Harvey
R. Blau
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||
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/s/ Ronald J. Kramer
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Chief
Executive Officer
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Ronald
J. Kramer
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(Principal
Executive Officer)
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February
9, 2009
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/s/ Patrick L. Alesia
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Chief
Financial Officer
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February
9, 2009
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Patrick
L. Alesia
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(Principal
Financial and
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|
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Accounting
Officer)
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||
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/s/ Henry A. Alpert
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Director
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February
9, 2009
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Henry
A. Alpert
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||
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/s/ Bertrand M. Bell
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Director
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February
9, 2009
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Bertrand
M. Bell
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||
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/s/ Blaine V. Fogg
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Director
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February
9, 2009
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Blaine
V. Fogg
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||
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/s/ Bradley J. Gross
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Director
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February
9, 2009
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Bradley
J. Gross
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||
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/s/ Robert G. Harrison
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Director
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February
9, 2009
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Robert
G. Harrison
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||
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/s/ Clarence A. Hill, Jr.
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Director
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February
9, 2009
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Clarence
A. Hill, Jr.
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/s/ Donald J. Kutyna
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Director
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February
9, 2009
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Donald
J. Kutyna
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||
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||
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/s/ James A. Mitarotonda
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Director
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February
9, 2009
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James
A. Mitarotonda
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||
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/s/ Martin S. Sussman
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Director
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February
9, 2009
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Martin
S. Sussman
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||
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/s/ William H. Waldorf
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Director
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February
9, 2009
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William
H. Waldorf
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||
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/s/ Joseph J. Whalen
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Director
|
February
9, 2009
|
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Joseph
J. Whalen
|
Exhibit
5.1
Moomjian,
Waite, Wactlar & Coleman, LLP
100
Jericho Quadrangle, Suite 225
Jericho,
New York 11753
|
February 9,
2009
|
Securities
and Exchange Commission
450 Fifth
Street, N.W.
Washington,
D.C. 20549
Re: Griffon Corporation -
Registration Statement on Form S-8
Ladies
and Gentlemen:
Reference is made to the filing by
Griffon Corporation (the “Registrant”) of a Registration Statement on Form S-8
with the Securities and Exchange Commission pursuant to the provisions of the
Securities Act of 1933, as amended, covering the registration of 5,750,000
shares of the Registrant’s Common Stock to be issued in connection with the
Registrant’s 2006 Equity Incentive Plan, as amended (the “2006
Plan”).
As counsel for the Registrant, we have
examined its corporate records, including its Certificate of Incorporation, as
amended, the Amended By-Laws, its corporate minutes, the form of its Common
Stock certificate and such other documents as we have deemed necessary or
relevant under the circumstances.
The Board of Directors of the
Registrant has reserved an additional 5,750,000 shares of the Registrant’s
Common Stock for issuance under the 2006 Plan. Based on our
examination, we are of the opinion that the shares of the Registrant’s Common
Stock, when issued pursuant to the 2006 Plan, will be validly authorized,
legally issued, fully paid and non-assessable.
We hereby consent to be named in the
Registration Statement, which constitutes a part thereof, as counsel to the
Registrant and we hereby consent to the filing of this opinion as Exhibit 5.1 to
the Registration Statement.
|
Very
truly yours,
/s/ Moomjian, Waite,
Wactlar & Coleman, LLP
Moomjian,
Waite, Wactlar & Coleman,
LLP
|
Exhibit
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have
issued our reports dated December 11, 2008 with respect to the consolidated
financial statements and financial statement schedules (which report expressed
an unqualified opinion and contains explanatory paragraphs related to the
adoption of Financial Accounting Standards Board Interpretation No. 48,
Accounting for Uncertainty in Income Taxes – an interpretation of FASB Statement
No. 109, effective October 1, 2007, and the adoption of the recognition and
disclosure provisions of Financial Accounting Standards Board Statement No. 158,
Employers’ Accounting for Defined Benefit Pension and Other Postretirement
Plans: an amendment of FASB Statements No. 87, 88, 106 and 132(R), effective
September 30, 2007) and with respect to internal control over financial
reporting of Griffon Corporation and subsidiaries, included in the Annual Report
on Form 10-K for the year ended September 30, 2008 which are incorporated by
reference in this Registration Statement. We consent to the incorporation by
reference in the Registration Statement of the aforementioned
reports.
/s/ Grant Thornton
LLP
Melville,
New York
February
9, 2009