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Section 1: S-8 (S-8)

S-8

As filed with the Securities and Exchange Commission on November 5, 2019

Registration No. 333-                

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

Under

THE SECURITIES ACT OF 1933

 

 

Mayville Engineering Company, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Wisconsin   39-0944729

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

715 South Street,

Mayville, Wisconsin

  53050
(Address of principal executive offices)   (Zip Code)

Mayville Engineering Company, Inc. 2019 Omnibus Incentive Plan

(Full title of the plan)

 

Robert D. Kamphuis

Chairman, President & Chief Executive Officer

Mayville Engineering Company, Inc.

715 South Street

Mayville, Wisconsin 53050

(920) 387-4500

(Name, address and telephone number, including

area code, of agent for service)

 

Copy to:

 

Russell E. Ryba

Foley & Lardner LLP

777 East Wisconsin Avenue

Milwaukee, Wisconsin 53202-5306

(414) 297-5668

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer      Accelerated filer  
Non-accelerated filer      Smaller reporting company  
     Emerging growth company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Securities

to be Registered

 

Amount

to be

Registered(1)

 

Proposed

Maximum

Offering Price

Per Share(2)

 

Proposed

Maximum

Aggregate

Offering Price(2)

 

Amount of

Registration Fee

Common Stock, no par value per share

  2,000,000 shares   $8.455   $16,910,000   $2,194.92

 

(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, this Registration Statement also covers an indeterminate number of additional shares of Common Stock that may become issuable as a result of stock splits, stock dividends or similar transactions pursuant to the anti-dilution provisions of the Mayville Engineering Company, Inc. 2019 Omnibus Incentive Plan.

(2)

Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933 on the basis of the average of the high and low prices of the Common Stock as reported on the New York Stock Exchange on October 31, 2019.

 

 

 


PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The document or documents containing the information specified in Part I are not required to be filed with the Securities and Exchange Commission (the “Commission”) as part of this Form S-8 Registration Statement.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

The following documents previously filed with the Commission by Mayville Engineering Company, Inc. (hereinafter referred to as the “Company” or the “Registrant”) are hereby incorporated herein by reference:

 

  (a)

The Company’s prospectus filed with the Commission pursuant to Rule 424(b)(4) on May 10, 2019 and deemed a part of the Company’s Registration Statement on Form S-1, as amended (Reg. No. 333-230840), which includes audited consolidated financial statements for the Company as of and for the years ended December 31, 2018 and 2017 and a description of the Company’s common stock, no par value per share (the “Common Stock”).

 

  (b)

The Company’s Current Reports on Form 8-K filed with the Commission on May 17, 2019, June  14, 2019 and October 2, 2019.

 

  (c)

The Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2019, June  30, 2019 and September  30, 2019, which were filed with the Commission on June  18, 2019, August 9, 2019 and October  31, 2019, respectively.

 

  (d)

The description of the Common Stock contained in the Company’s Registration Statement on Form 8-A (File No. 001-38894) filed with the Commission on May 3, 2019 pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.

All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of filing of this Registration Statement and prior to such time as the Company files a post-effective amendment to this Registration Statement that indicates that all securities offered hereby have been sold or that 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.

 

Item 4.

Description of Securities.

Not applicable.

 

-2-


Item 5.

Interests of Named Experts and Counsel.

The validity of the Common Stock offered by this Registration Statement will be passed upon for the Company by Foley & Lardner LLP, 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202. Jay O. Rothman, a partner in Foley & Lardner LLP, is a director of the Company. As of October 25, 2019, Mr. Rothman owned 5,000 shares of the Company’s common stock, in addition to 5,883 shares of such stock attributable to restricted stock units that vest on May 8, 2020.

 

Item 6.

Indemnification of Directors and Officers.

Pursuant to the Wisconsin Business Corporation Law and the Registrant’s bylaws, the Registrant’s directors and officers are entitled to mandatory indemnification from the Registrant against certain liabilities (which may include liabilities under the Securities Act of 1933) and expenses (i) to the extent such officers or directors are successful in the defense of a proceeding and (ii) in proceedings in which the officer or director is not successful in defense thereof, unless (in the latter case only) it is determined that the director or officer breached or failed to perform his or her duties to the Registrant and such breach or failure constituted: (a) a willful failure to deal fairly with the Registrant or the Registrant’s shareholders in connection with a matter in which the director or officer had a material conflict of interest, (b) a violation of the criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful, (c) a transaction from which the director or officer derived an improper personal profit or (d) willful misconduct. It should also be noted that the Wisconsin Business Corporation Law specifically states that it is the policy of Wisconsin to require or permit indemnification in connection with a proceeding involving securities regulation to the extent required or permitted as described above. Additionally, under the Wisconsin Business Corporation Law, the Registrant’s directors are not subject to personal liability to the Registrant, the Registrant’s shareholders or any person asserting rights on behalf of the Registrant or the Registrant’s shareholders for certain breaches or failures to perform any duty resulting solely from their status as directors or officers except in circumstances paralleling those in subparagraphs (a) through (d) outlined above.

Expenses for the defense of any action for which indemnification may be available are required to be advanced by the Registrant under certain circumstances.

The indemnification provided by the Wisconsin Business Corporation Law and the Registrant’s bylaws is not exclusive of any other rights to which a director or officer may be entitled. The general effect of the foregoing provisions may be to reduce the circumstances under which an officer or director may be required to bear the economic burden of the foregoing liabilities and expenses.

The Registrant also maintains director and officer liability insurance against certain claims and liabilities which may be made against the Registrant’s former, current or future directors or officers.

 

Item 7.

Exemption from Registration Claimed.

Not Applicable.

 

Item 8.

Exhibits.

The exhibits listed in the Exhibit Index below are filed (except where otherwise indicated) as part of this Registration Statement.

 

-3-


EXHIBIT INDEX

 

Exhibit
Number

  

Description

(4.1)    Amended and Restated Articles of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-1 (Reg. No. 333-230840)).
(4.2)    Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company’s Registration Statement on Form S-1 (Reg. No. 333-230840)).
(4.3)    Mayville Engineering Company, Inc. 2019 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Registration Statement on Form S-1 (Reg. No. 333-230840)).
(5)    Opinion of Foley & Lardner LLP.
(23.1)    Consent of Deloitte & Touche LLP.
(23.2)    Consent of Foley & Lardner LLP (contained in Exhibit 5 hereto).
(24)    Power of Attorney (contained in the signature page of this Registration Statement).

 

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 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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(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 (a)(1)(i) and (a)(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 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.

 

-4-


(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 herein, 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 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.

(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 Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 Securities Act of 1933 and will be governed by the final adjudication of such issue.

 

-5-


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 Mayville, Wisconsin, on November 5, 2019.

 

MAYVILLE ENGINEERING COMPANY, INC.
By:   /s/ Robert D. Kamphuis
  Robert D. Kamphuis
  Chairman, President and Chief 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 indicated on November 5, 2019. Each person whose signature appears below constitutes and appoints Robert D. Kamphuis and Todd M. Butz, and each of them individually, his or her true and lawful attorneys-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and any additional registration statement to be filed pursuant to Rule 462(b) under the Securities Act of 1933, 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 connection therewith, as fully to all intents and purposes as he or she 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 or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Signature

 

Title

/s/ Robert D. Kamphuis

Robert D. Kamphuis

 

Chairman, President, Chief Executive Officer

(Principal Executive Officer) and Director

/s/ Todd M. Butz

Todd M. Butz

 

Chief Financial Officer

(Principal Financial and Accounting Officer)

/s/ Allen J. Carlson

Allen J. Carlson

  Director

/s/ Timothy L. Christen

Timothy L. Christen

  Director

/s/ Steven L. Fisher

Steven L. Fisher

  Director

/s/ Craig E. Johnson

Craig E. Johnson

  Director

 

S-1


/s/ Patrick D. Michels

Patrick D. Michels

  Director

/s/ Jay O. Rothman

Jay O. Rothman

  Director

/s/ John A. St. Peter

John A. St. Peter

  Director

 

S-2

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Section 2: EX-5 (EX-5)

EX-5

Exhibit 5

 

LOGO    

ATTORNEYS AT LAW

 

777 EAST WISCONSIN AVENUE

MILWAUKEE, WI 53202-5306

414.271.2400 TEL

414.297.4900 FAX

WWW.FOLEY.COM

 

CLIENT/MATTER NUMBER

065397-0102

November 5, 2019

Mayville Engineering Company, Inc.

715 South Street

Mayville, Wisconsin 53050

Ladies and Gentlemen:

We have acted as counsel for Mayville Engineering Company, Inc., a Wisconsin corporation (the “Company”), in conjunction with the preparation of a registration statement on Form S-8 (the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), relating to 2,000,000 shares of the Company’s common stock, no par value per share (the “Shares”), that may be issued pursuant to the Mayville Engineering Company, Inc. 2019 Omnibus Incentive Plan (the “Plan”).

In connection with our representation, we have examined originals or copies, certified or otherwise identified to our satisfaction, of: (i) the Plan; (ii) the Registration Statement; (iii) the Amended and Restated Articles of Incorporation and the Bylaws of the Company, each as amended to date and currently in effect; (iv) resolutions of the Board of Directors of the Company relating to the Plan and the issuance of securities thereunder; and (v) such other documents and records as we have deemed necessary to enable us to render this opinion. In all such examinations, we have assumed the genuineness of all signatures, the authenticity of all documents, certificates, and instruments submitted to us as originals and the conformity with the originals of all documents submitted to us as copies. We have, among other things, relied upon certificates of public officials and, as to various factual matters, certificates of officers of the Company.

Based upon and subject to the foregoing, and assuming that (a) the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective and comply with all applicable laws; (b) the Registration Statement will be effective and will comply with all applicable laws at the time the Shares are offered or issued as contemplated by the Registration Statement; and (c) all Shares will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement, we are of the opinion that:

 

  1.

The Company is a corporation validly existing under the laws of the State of Wisconsin.

 

  2.

The Shares covered by the Registration Statement, when issued and paid for pursuant to the terms and conditions of the Plan, and as contemplated in the Registration Statement, will be validly issued, fully paid and nonassessable.

 

AUSTIN

BOSTON

CHICAGO

DALLAS

DENVER

 

DETROIT

HOUSTON

JACKSONVILLE

LOS ANGELES

MADISON

 

MEXICO CITY

MIAMI

MILWAUKEE

NEW YORK

ORLANDO

 

SACRAMENTO

SAN DIEGO

SAN FRANCISCO

SILICON VALLEY

TALLAHASSEE

 

TAMPA

WASHINGTON, D.C.

BRUSSELS

TOKYO


LOGO

Mayville Engineering Company, Inc.

November 5, 2019

Page 2

 

Jay O. Rothman, a partner in the firm of Foley & Lardner LLP, is a director of the Company. As of October 25, 2019, Mr. Rothman owned 5,000 shares of the Company’s common stock, in addition to 5,883 shares of such stock attributable to restricted stock units that vest on May 8, 2020.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm in the Registration Statement. In giving this consent, we do not admit that we are “experts” within the meaning of Section 11 of the Securities Act or within the category of persons whose consent is required by Section 7 of the Securities Act.

 

Very truly yours,
/s/ Foley & Lardner LLP
FOLEY & LARDNER LLP
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Section 3: EX-23.1 (EX-23.1)

EX-23.1

EXHIBIT 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 22, 2019, relating to the consolidated financial statements of Mayville Engineering Company, Inc. and Subsidiaries for the years ended December 31, 2018 and 2017, appearing in Amendment No. 2 to Registration Statement No. 333-230840 on Form S-1 dated May 3, 2019.

/s/ Deloitte & Touche LLP

Milwaukee, Wisconsin

November 1, 2019

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