S-8: Securities to be offered to employees in employee benefit plans
Published on
As filed
with the Securities and Exchange Commission on February 6, 2009.
Registration
No. 333-______
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UNITED
STATES
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SECURITIES
AND EXCHANGE COMMISSION
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Washington,
D.C. 20549
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FORM
S-8
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REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF
1933
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DORMAN
PRODUCTS, INC.
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(Exact
name of registrant as specified in its
charter)
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Pennsylvania
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23-2078856
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
No.)
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3400
East Walnut Street
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Colmar,
PA 18915
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(Address
of Principal Executive Offices; Zip Code)
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AMENDED
AND RESTATED INCENTIVE STOCK PLAN
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(Full
title of the plan)
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Thomas
J. Knoblauch
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Vice
President – General Counsel
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Dorman
Products, Inc.
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3400
East Walnut Street
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Colmar,
PA 18915
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(215)
712-5222
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(Name
and address of agent for service; telephone number,
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including
area code, of agent for service)
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Copies
to:
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Jane
K. Storero, Esquire
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Blank
Rome LLP
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One
Logan Square
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Philadelphia,
PA 19103
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(215)
569-5488
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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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o
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Large
accelerated filed
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x
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Accelerated
filer
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o
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Non-accelerated
filer (do not check if a small reporting company)
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o
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Small
reporting company
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Pursuant to Rule 429, the prospectus
related to this Registration Statement is combined with the prospectus relating
to shares of common stock registered on Form S-8 Registration Statement No.
33-56492 previously filed by the registrant. Upon its effectiveness, this
Registration Statement will constitute Post-Effective Amendment No. 1 to such
previously filed registration statement.
CALCULATION
OF REGISTRATION FEE
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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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Common
Stock, par value $.01 per share
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1,000,000
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(2)
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$6,882,861
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$270.50
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(1)
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Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the “Securities
Act”), this registration statement covers, in addition to the number of
shares of common stock, par value $.01 per share (“Common Stock”), set
forth above, an indeterminate number of shares of Common Stock which, by
reason of certain events specified in the Amended and Restated Incentive
Stock Plan (the “Plan”), may become issuable pursuant to the anti-dilution
provision of the Plan.
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(2)
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Estimated
solely for the purpose of calculating the registration fee in accordance
with Rule 457(h) under the Securities Act. Of the 1,000,000 shares of
Common Stock authorized for issuance under the Plan, 16,000 shares are
being registered at a price of $0.50 per share; 2,000 shares are being
registered at a price of $0.94 per share; 307,700 shares are being
registered at $1.50 per share; 39,150 shares are being registered at $4.00
per share; 81,000 shares are being registered at $5.08 per share; 70,750
shares are being registered at $7.14 per share; 100,000 shares are being
registered at $8.01 per share; 83,500 shares are being registered at
$12.48 per shares; 10,000 shares are being registered at $9.15 per share;
15,000 shares are being registered at $10.10 per share; 55,000 are being
registered at $13.79 per share; 40,000 are being registered at $11.34 per
share; and the remaining 179,900 shares are being registered at a price of
$11.34 per share which represents the average of the high and low prices
of the Common Stock reported by The Nasdaq Stock Market on February 4,
2009.
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EXPLANATORY
NOTE
Dorman
Products, Inc. (the “Company” or “Registrant”) previously filed with the
Securities and Exchange Commission (“SEC”) a registration statement on
Form S-8 (File No. 33-56492), the contents of which are incorporated herein
by reference, to register 322,500 (645,000 shares after giving effect to a 2 for
1 stock split) shares of the Company’s common stock, par value $.01 per share
(“Common Stock”), which had been authorized for issuance under the Company’s
Incentive Stock Plan. The Company’s Board of Directors subsequently amended the
Company’s Incentive Stock Plan (as amended, the “Plan”). The amendments, which
were approved by the stockholders of the Company, among other things, increased
the number of shares authorized for issuance under the Plan to 500,000
(1,000,000 shares after giving effect to a 2 for 1 stock split). Pursuant to
General Instruction E of Form S-8, the Company is filing this registration
statement on Form S-8 (the “Registration Statement”) with the SEC to (i)
register the additional 1,000,000 shares of the Company’s Common Stock
authorized for issuance under the Plan and (ii) post-effectively amend the
Company’s previously filed registration statement on Form S-8.
I-1
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
following documents and all other documents subsequently filed by the Company
with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), after the date hereof 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 into this
Registration Statement and to be a part thereof from the date of the filing of
such documents:
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Document
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Period
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Date
of Filing
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Annual
Report on Form 10-K
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December 31,
2007
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March
6, 2008
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Quarterly
Report on Form 10-Q
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March 31,
2008
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May
6, 2008
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Quarterly
Report on Form 10-Q
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June 30,
2008
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August
4, 2008
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Quarterly
Report on Form 10-Q
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September 30, 2008
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November
4, 2008
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Definitive
Proxy Statement for the Annual Meeting of Stockholders
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May
22, 2008
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April
10, 2008
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Current
Report on Form 8-K (except for Item 2.02 and Exhibit 99.1)
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October
31, 2008
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October
31, 2008
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Current
Report on Form 8-K
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November
14, 2008
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November
14, 2008
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Current
Report on Form 8-K
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May
15, 2008
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May
16, 2008
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Current
Report on Form 8-K
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April
1, 2008
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April
1, 2008
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Current
Report on Form 8-K
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January
29, 2008
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January
29, 2008
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Current
Report on Form 8-K
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January
2, 2008
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January
2, 2008
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Current
Report on Form 8-K (except for Item 2.02 and Exhibit 99.1)
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May
2, 2008
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May
2, 2008
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Current
Report on Form 8-K (except for Item 2.02 and Exhibit 99.1)
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August
1, 2008
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August
4, 2008
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Current
Report on Form 8-K (except for Item 2.02 and Exhibit 99.1)
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February
22, 2008
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February
22,
2008
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In
addition, any statement contained in the documents incorporated, or deemed to be
incorporated, by reference herein or therein shall be deemed to be modified or
superseded to the extent that a statement contained herein or therein or in any
other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein or therein modifies or supersedes such
statement. Any such statement shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
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Item
4.
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Description of
Securities. Not applicable.
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Item
5.
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Interests of Named
Experts and Counsel. Not applicable.
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Item
6.
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Indemnification of
Directors and
Officers.
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Section 1741
of the Pennsylvania Business Corporation Law of 1988, as amended (the “BCL”),
authorizes a Pennsylvania corporation to indemnify any person who was or is a
party, or is threatened to be made a party, to any threatened, pending or
completed action or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation), by
reason of the fact that the person is or was a representative of the
corporation, or is or was serving at the request of the corporation as a
representative of another domestic or foreign corporation for profit or
not-for-profit, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection with the
action or proceeding if the person acted in good faith and in a manner the
person 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 the person’s conduct was unlawful.
II-1
Section 1742
further authorizes a Pennsylvania corporation to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that the person is or was a representative of
the corporation or is or was serving at the request of the corporation as a
representative of another domestic or foreign corporation for profit or
not-for-profit, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees) actually and reasonably incurred in
connection with the defense or settlement of the action if the person acted in
good faith and in a manner the person reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which the person has been adjudged to be liable to the corporation unless and
only to the extent that the court of common pleas of the judicial district
embracing the county in which the registered office of the corporation is
located or the court in which the action was brought determines upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, the person is fairly and reasonably entitled to indemnity for the
expenses that the court of common pleas or other court deems
proper.
To the
extent that a representative of a business corporation has been successful on
the merits or otherwise in defense of any action or proceeding referred to
above, or in defense of any claim, issue or matter, such person shall be
indemnified against expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection therewith. Indemnity is mandatory to the
extent a claim, issue or matter has been successfully defended.
The
Amended and Restated Bylaws of the Company provide for indemnification under
Sections 1741 and 1742 of the BCL.
The
Amended and Restated Bylaws of the Company also provide that no indemnification
shall be provided to a person (a) with respect to expenses or the payment of
profits arising from the purchase or sale of securities of the corporation in
violation of Section 16(b) of the Securities Exchange Act of 1934; (b) if a
final unappealable judgment or award establishes that such director or officer
engaged in intentional misconduct or a transaction from which the director or
officer derived an improper personal benefit; (c) for expenses or
liabilities of any type whatsoever (including, but not limited to, judgments,
fines, and amounts paid in settlement) which have been paid directly to, or for
the benefit of, such person by an insurance carrier under a policy of officers’
and directors’ liability insurance whose premiums are paid for by the
corporation or by an individual or entity other than such director or officer;
and (d) for amounts paid in settlement of any threatened, pending or
completed action, suit or proceeding without the written consent of the
corporation, which written consent shall not be unreasonably withheld. Further,
the Amended and Restated Bylaws of the Company authorize the Board of Directors
to add to the above list of exceptions at any time by resolution.
The
Company purchased a policy of directors’ and officers’ liability
insurance.
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Item
8.
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Exhibits.
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The
following exhibits are filed as part of this Registration Statement or, where so
indicated, have been previously filed and are incorporated herein by
reference.
II-2
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Exhibit
Number
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Description
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4.1
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Stock
Certificate for Common Stock.
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5.1
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Opinion
of Counsel.
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10.1*
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Amended
and Restated Incentive Stock Plan.
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23.1
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Consent
of KPMG LLP.
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23.5
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Consent
of Counsel (included in Exhibit 5.1).
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24.1
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Power
of Attorney (included on the Signature
Page).
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*
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Management
compensation plan or arrangement.
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Item
9.
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Undertakings.
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(a) Rule
415 Offering.
The
undersigned Registrant hereby undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration
Statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
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(ii)
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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 SEC 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
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(iii)
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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;
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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 by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration
statement.
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(2)
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That,
for the purpose of determining any liability under the Securities 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.
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II-3
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(3)
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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.
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(b)
Filings incorporating subsequent Exchange Act documents by
reference.
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The
undersigned Registrant hereby undertakes that, for purposes of determining
liability under the Securities Act, each filing of the Registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in the Registration Statement shall be deemed to be a new
registration statement related 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.
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(h)
Request for acceleration of effective date or filing of registration
statement on Form S-8.
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Insofar
as indemnification for liabilities arising under the Securities Act 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 SEC such indemnification is
against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such
issue.
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II-4
SIGNATURES
Pursuant
to the requirements of the Securities Act, 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 Colmar,
State of Pennsylvania, on February 6 2009.
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DORMAN
PRODUCTS, INC.
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By:
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/s/
Richard N. Berman
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Richard
N. Berman
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Chairman
and Chief Executive
Officer
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KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Thomas J. Knoblauch, his true and lawful
attorney-in-fact and agent with full power of substitution or resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement, and to file the same, with
all exhibits thereto, and other documentation in connection therewith, with the
SEC, granting unto the 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 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 the said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has been
signed by the following persons in the capacities and as of the date
indicated.
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SIGNATURE
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TITLE
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/s/
Richard N. Berman
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Chairman,
Chief Executive Officer (Principal
Executive
Officer) and Director
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Richard
N. Berman
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/s/
Mathias J. Barton
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Senior
Vice President, Chief Financial Officer
(Principal
Accounting and Financial Officer)
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Mathias
J. Barton
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/s/
Stephen L. Berman
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President,
Secretary, Treasurer and Chief
Operating
Officer and Director
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Stephen
L. Berman
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/s/
George L. Bernstein
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Director
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George
L. Bernstein
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/s/
John F. Creamer, Jr.
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Director
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John
F. Creamer, Jr.
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/s/
Paul R. Lederer
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Director
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Paul
R. Lederer
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/s/
Edgar W. Levin
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Director
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Edgar
W. Levin
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EXHIBIT
INDEX
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Exhibit
Numbers
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Description
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4.1
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Stock
Certificate for Common Stock.
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5.1
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Opinion
of Counsel.
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10.1*
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Amended
and Restated Incentive Stock Plan.
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23.1
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Consent
of KPMG LLP.
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23.5
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Consent
of Counsel (included in Exhibit 5.1).
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24.1
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Power
of Attorney (included on the Signature Page).
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* Management
compensation plan or arrangement.