ds8.htm
As
filed with the Securities and Exchange Commission on November 3,
2008.
File
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
TEMPUR-PEDIC
INTERNATIONAL INC.
(Exact
Name of Registrant as Specified in Its Charter)
DELAWARE
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33-1022198
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(State
or Other Jurisdiction of Incorporation or Organization)
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(I.R.S.
Employer
Identification
No.)
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1713
Jaggie Fox Way, Lexington, Kentucky 40511
(Address
of Principal Executive Office)( Zip Code)
TEMPUR-PEDIC
INTERNATIONAL INC.
AMENDED
AND RESTATED 2003 EQUITY INCENTIVE PLAN
(Full
title of the plan)
Mark
Sarvary
Tempu-Pedic
International Inc.
1713
Jaggie Fox Way
Lexington,
KY 40511
(Name
and address of agent for service)
(800)
878-8889
(Telephone
Number, including area code, for agent for service)
Copy
to:
John
R. Utzschneider, Esq.
Bingham
McCutchen LLP
One
Federal Street
Boston,
MA 02110
Telephone: (617)
951-8000
Facsimile: (617)
951-8736
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 definitions of “large accelerated filer,” “accelerated
filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
Large
accelerated filer x
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Accelerated
filer o
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Non-accelerated
filer o
(Do
not check if a smaller reporting company)
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Smaller
reporting company o
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CALCULATION
OF REGISTRATION FEE
Title
Of
Securities
To Be Registered
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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
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Amended
and Restated 2003 Equity Incentive Plan
Common
Stock (par value $0.01 per share)
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1,000,000
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$ |
6.39 |
(2) |
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$ |
6,390,000 |
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$ |
252 |
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(1) In
addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended,
this Registration Statement also covers an indeterminate number of additional
shares of common stock that may be offered or issued in the event of a stock
dividend, reverse stock split, split-up, recapitalization, forfeiture of stock
under those plans, or other similar event.
(2) The
estimate price of $6.39 per share, which is the average of the high and low
proposed initial offering price of the common stock as reported on the New York
Stock Exchange on October 28, 2008, is set forth solely for the purpose of
calculating the fee pursuant to Rule 457(c) and (h), and has been used only for
those shares without a fixed exercise price. None of such shares have
been issued or are subject to outstanding options.
EXPLANATORY
NOTE
On
December 24, 2003, Tempur-Pedic International Inc. (the “Registrant”) filed a
Registration Statement on Form S-8 (File No. 333-11595) (referred to
in this document as the “First Registration
Statement”) to register under the Securities
Act of 1933, as amended (the “Securities Act”),
8,000,000 shares of its common stock issuable by the Registrant under the
Tempur-Pedic International Inc. 2003 Equity Incentive Plan.
This Registration Statement on Form S-8 has been prepared and filed
pursuant to and in accordance with the requirements of General Instruction E to
Form S-8 for the purpose of effecting the registration under the Securities
Act of the additional 1,000,000 shares of the Registrant’s common
stock. At the Registrant’s annual meeting of stockholders held on May
6, 2008, the Registrant’s stockholders approved and adopted the Amended and
Restated 2003 Equity Incentive Plan which increased the number of shares that
may be issued by an additional 1,000,000 shares, for an aggregate amount of
9,000,000 shares of the Registrant’s common stock that may be issued upon the
granting of awards pursuant to the plan at any time or from time to time from
the date hereof. Pursuant to General Instruction E to Form S-8,
Registrant hereby incorporates herein by reference the contents of the First
Registration Statement into this Registration Statement.
PART
II
INFORMATION
REQUIRED IN THE 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 Act or the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), are hereby incorporated by reference into this Registration
Statement:
(a)
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The
Registrant’s Annual Report on Form 10-K for the year ended December 31,
2007 filed on February 29, 2008;
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(b)
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All
other reports filed by the Registrant pursuant to Sections 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
Registrant’s annual report referred to in (a) above;
and
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(c)
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The
section entitled “Description of Registrant’s Securities to be Registered”
contained in the Registrant’s Registration Statement on Form 8-A, as
amended (File No. 001-31922) filed under Section 12(b) of the Exchange
Act, including all amendments or reports filed for the purpose of updating
such description.
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In addition, all documents filed with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act subsequent to the date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities
registered hereby have been sold or which deregisters all of such securities
then remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item
8. Exhibits.
The following exhibits are filed as
part of this Registration Statement:
Exhibit
Number
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Exhibit Description
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4.1
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4.2
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4.3
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5.1
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10.1
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10.2
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10.3
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10.4
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23.1
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23.2
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24.1
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Pursuant to the requirements of the
Securities Act of 1933, as amended, 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 Town of Lexington,
State of Kentucky, on this 3rd day of November, 2008.
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TEMPUR-PEDIC
INTERNATIONAL INC.
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BY:
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/S/ MARK
SARVARY
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Mark
Sarvary
President
and Chief Executive Officer
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Mark Sarvary and Dale E. Williams, and
each of them, as such person’s true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, for such person and in such
person’s name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) and additions to this
registration statement on Form S-8 and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, and hereby grants to such attorneys-in-fact and agents 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 such person might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or such person’s substitute or 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 3rd day of
November, 2008.
Signature
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Title
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/S/ MARK SARVARY
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President,
Chief Executive Officer, and
Director
(Principal Executive Officer)
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/S/ DALE E. WILLIAMS
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Executive
Vice President, Chief Financial Officer
and
Secretary
(Principal
Financial Officer)
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/S/ BHASKAR RAO
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Chief
Accounting Officer and
Vice
President of Strategic Planning
(Principal
Accounting Officer)
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/S/ H. THOMAS BRYANT
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Director
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/S/ FRANCIS A. DOYLE
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Director
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/S/ JOHN A. HEIL |
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Director
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/S/ PETER K.
HOFFMAN |
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Director
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/S/ SIR PAUL JUDGE |
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Director
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/S/ NANCY F. KOEHN |
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Director
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/S/ CHRISTOPHER A. MASTO |
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Director
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/S/ P. ANDREWS MCLANE |
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Director
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/S/ ROBERT B. TRUSSELL |
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Director
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EXHIBIT
INDEX
Exhibit
Number
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Exhibit Description
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4.1
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Amended
and Restated Certificate of Incorporation of the Registrant (incorporated
by reference from Amendment No. 3 to the Registrant’s Registration
Statement on Form S-1 (File No. 333-109798) filed with the Commission on
December 12, 2003.)
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4.2
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Third
Amended and Restated Bylaws of the Registrant (incorporated by reference
from to the Registrant’s Current Report on Form 8-K (File No. 333-134683)
filed with the Commission on October 27, 2008.)
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4.3
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Specimen
certificate for shares of common stock (incorporated by reference from
Amendment No. 3 to the Registrant’s Registration Statement on Form
S-1 (File No. 333-109798) filed with the Commission on December 12,
2003.)
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5.1
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Opinion
of Bingham McCutchen LLP with respect to the legality of the shares being
registered (filed herewith).
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10.1
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Amended
and Restated 2003 Equity Incentive Plan of the Registrant (incorporated by
reference from Appendix A to the Registrant’s Registration Proxy Statement
on Schedule 14A (File no. 001-31922, Appendix A) filed with the Commission
on March 24, 2008.)
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10.2
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United
Kingdom Approved Share Option Sub Plan To The 2003 Equity Incentive Plan
of the Registrant (filed herewith)
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10.3
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Form
of Stock Option Agreement for employees for the Amended and Restated 2003
Equity Incentive Plan (incorporated by reference from Registrant’s
Quarterly Report on Form 10-Q (File no. 001-31922) filed with the
Commission on August 8, 2006.)
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10.4
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Form
of Stock Option Agreement for Named Executive Officers for the Amended and
Restated 2003 Equity Incentive Plan (incorporated by reference from
Registrant’s Amended Report on Form 8-K (File no. 001-31922) filed with
the Commission on May 19, 2008.
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23.1
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Consent
of Ernst & Young LLP, Independent Registered Public Accounting
Firm.
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23.2
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Consent
of Bingham McCutchen LLP (included in Exhibit 5.1).
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24.1
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Power
of Attorney (included in signature page
hereto).
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