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As filed with the Securities and Exchange Commission on January 14, 1997
Registration No. 333-___________________________
Securities and Exchange Commission
Washington, D.C. 20549
Form S-8
Registration Statement Under
The Securities Act of 1933
LUNN INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 11-1581582
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1 Garvies Point Road, Glen Cove, New York 11542-2828
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (516) 671-9000
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Lunn Industries, Inc. 1994 Stock Incentive Plan
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(Full title of Plan)
Lawrence Schwartz
Lunn Industries, Inc.
1 Garvies Point Road
Glen Cove, New York 11542
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(Name, address, including Zip Code and telephone number
including area code of agent for service)
With a Copy to:
Lawrence A. Muenz, Esq.
Muenz & Meritz, P.C.
Three Hughes Place
Dix Hills, New York 11746
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Calculation of Registration Fee
<TABLE>
<CAPTION>
Title of each Proposed Proposed
class of maximum maximum Amount of
securities to Amount to be offering price aggregate registration
be registered registered per unit offering price fee
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 172,000 $.50 (1) $ 86,000 $ 29.66
Common Stock 10,000 $.75 (1) $ 7,500 $ 2.59
Common Stock 200,000 $.60 (1) $120,000 $ 41.38
Common Stock 100,000 $.875 (1) $ 87,500 $ 30.17
Common Stock 200,000 $.75 (1) $150,000 $ 51.72
Common Stock 659,820 $.97 (1) $640,025 $220.70
Common Stock 158,180 $.76 (1) $120,216 $ 41.45
-------
Total Registration Fee $417.67
</TABLE>
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(1) Price calculated in accordance with Rule 457(h) of the regulations
promulgated under Securities Act of 1933.
Approximate date of proposed sale to the public: This Registration Statement
shall become effective upon filing with the Commission.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
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PART I
Item 1. Plan Information
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
421 and 428 under the Securities Act of 1933, as amended (the "1933 Act"), and
the Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
421 and 428 under the 1933 Act, and the Note to Part I of Form S-8.
The Company will provide, without charge, to each person to whom a
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the documents incorporated by reference herein, other
than exhibits to such documents, unless such exhibits are specifically
incorporated by reference in such documents. Such requests should be addressed
to Lunn Industries, Inc.,1 Garvies Point Road, Glen Cove, New York 11542,
Attention: Lawrence Schwartz, Vice President, (516) 671-9000.
PART II
Item 3. Incorporation of Documents by Reference.
In accordance with the requirements of the Securities Exchange Act of 1934, the
Company periodically files certain reports and other information with the
Commission. The following documents filed with the Commission are hereby
incorporated in this Prospectus by reference:
1. The Company's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1995;
2. The Company's Quarterly Report on Form 10-QSB/A Amendment 1
for the fiscal quarter ended March 31, 1996;
3. The Company's Definitive Proxy Statement dated August 28,
1995 in connection with the solicitation of proxies for the
annual meting of the Company's shareholders held on September
29, 1995;
4. The Company's Report on Form 10-C dated April 3, 1996.
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5. The Company's Quarterly Report on Form 10-QSB for the fiscal
quarter ended June 30, 1996;
6. The Company's Quarterly Report on Form 10-QSB for the fiscal
quarter ended September 30, 1996;
7. Form S-3 under Registration Statement No. 333-12905 declared
effective by the Commission on November 22, 1996.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 of 15(d) of the Exchange Act after the date hereof and prior
to the termination of the offering of the Shares shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained in any
other subsequently filed document which 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, except as so modified or
superseded, to constitute a part of this Prospectus.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation law, under which the Company is
organized, permits the certificate of incorporation to provide that a
director's personal monetary liability for damages to the corporation or its
shareholders for violations of a director's fiduciary duty of care can be
limited or eliminated. However, the law does not permit limitation or
elimination of a director's monetary liability if the director's breach of
fiduciary duty arises from a breach of duty of loyalty, a failure to act in
good faith, intentional misconduct, a knowing violation of law, an unlawful
payment of dividends, an unlawful stock purchase or redemption or transactions
from which the director derived an improper personal benefit. A provision in
the certificate of incorporation so limiting or eliminating director liability
eliminates liability only for a director acting as a director, not as an
officer, and does not alter or eliminate a director's duty of care, but merely
eliminates monetary liability occasioned by violations of that duty. Such a
provision would not permit limitation of liability arising under other laws or
regulations, such as federal securities laws, or from acts or omissions which
occurred prior to the time the provision was lawfully placed in the
corporation's Certificate of Incorporation. Moreover, such a provision would
not affect the availability of equitable remedies, such as an action to enjoin
or rescind a transaction involving a breach of the fiduciary duty of care, and
would not preclude or limit recovery of damages in litigation instituted by
third parties.
Delaware law authorizes a corporation to indemnify its directors,
officers, employees and agents against all reasonable expenses (including
attorneys' fees) and, except in actions initiated by or in the right of the
corporation, against all judgments, fines and amounts paid in settlement of
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actions brought against them provided that such individual (the "indemnitee")
is determined to have acted in good faith and for a purpose which he reasonably
believed to be in, or not opposed to, the best interests of the corporation
and, in the case of a criminal proceeding, had no reason to believe his conduct
was unlawful. The Delaware statute contemplates that the determination of
whether the indemnitee is entitled to indemnification is to be made in the
specific case by a majority of a quorum of the "disinterested" directors, by
independent legal counsel or by the shareholders, unless otherwise determined
by a court of competent jurisdiction.
Under Delaware law, there is a right of mandatory indemnification to
the extent that an indemnitee is successful on the merits or otherwise in the
defense of any claim, issue or matter associated with an action. Thus, Delaware
law permits partial indemnification in the event that an indemnitee is
partially successful in defending an action brought against him. Delaware law
allows for the advance payment of an indemnitee's expenses prior to the final
disposition of an action, provided that the indemnitee undertakes to repay any
such amount advanced if it is later determined that the indemnitee is not
entitled to indemnification with regard to the action for which the expenses
were advanced. The provisions of Delaware law limiting directors' liability
and/or providing for directors' and officers' indemnification as recited above
are incorporated in the Company's Certificate of Incorporation and Bylaws.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to officers, directors or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed 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.
Item 8. Exhibits
5.1 Legal Opinion of Muenz & Meritz, P.C.
23. Consent of Experts and Counsel
23.1 Consent of Muenz & Meritz, P.C. included in Exhibit 5.1
23.2 Consent of Coopers & Lybrand, LLP
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 of this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
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(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(i) do
not apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in 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.
(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 therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the Prospectus is
sent or given, the latest annual report to security holders that is
incorporated by reference in the Prospectus and furnished pursuant to and
meeting the requirements of Rule 14A-3 or Rule 14C-3 under the Securities
Exchange Act of 1934 and further, hereby undertakes to deliver or cause to be
delivered to each person to whom the Prospectus is sent or given, the latest
quarterly report of the Registrant that is specifically incorporated by
reference in the Prospectus to provide interim financial information required
to be represented by Article 3 of Regulation S-X.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant, or otherwise, the Securities and Exchange Commission
has informed the Registrant that 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
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incurred or paid by a director, office 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 submit to a court of appropriate
jurisdiction the question of whether such indemnification by itself is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Glen Cove, State of New York, on January 13, 1997.
LUNN INDUSTRIES, INC.
By: /s/ Alan W. Baldwin January 13, 1997
--------------------------- ----------------
Alan W. Baldwin Date
Chairman of the Board and ,
Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
By: /s/ Alan W. Baldwin January 13, 1997
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Alan W. Baldwin Date
Chairman of the Board and ,
Chief Executive Officer and Director
By: /s/ Lawrence Schwartz January 13, 1997
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Lawrence Schwartz Date
Vice President, Secretary
and Chief Financial and
Accounting Officer
By: /s/ Warren H. Haber January 13, 1997
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Warren H. Haber Date
Director
By: /s/ John F. Menzel January 13, 1997
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John F. Menzel Date
Director
By: /s/ John Simon January 13, 1997
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John Simon Date
Director
By: /s/ William R. Lewis January 13, 1997
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William R. Lewis Date
Director
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Index of Exhibits
5.1 Legal Opinion of Muenz & Meritz, P.C.
23. Consent of Experts and Counsel
23.1 Consent of Muenz & Meritz, P.C. included in Exhibit 5.1
23.2 Consent of Coopers & Lybrand, LLP
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Exhibit 5.1
[Muenz & Meritz, P.C. letterhead]
January 13, 1997
Board of Directors
Lunn Industries, Inc.
1 Garvies Point Road
Glen Cove, New York 11542
Gentlemen:
You have requested our opinion, as counsel for Lunn Industries, Inc., a
Delaware corporation (the "Company"), in connection with the registration
statement on Form S-8 (the "Registration Statement"), under the Securities Act
of 1933 (the "Act"), being filed by the Company with the Securities and
Exchange Commission.
The Registration Statement relates to the registration of 1.5 million shares
(the "Registered Shares") of common stock (the "Offering"), par value $.01 (the
"Common Stock") that have been or will be issued under the Lunn Industries,
Inc. 1994 Stock Incentive Plan.
We have examined such records and documents and made such examinations of law
as we have deemed relevant in connection with this opinion. It is our opinion
that when there has been compliance with the Act, the Registered Shares, when
issued, delivered, and paid for, will be fully paid, validly issued and
nonassessable.
No opinion is expressed herein as to any laws other than the laws of the State
of New York, of the United States of America and the corporate laws of the
State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Respectfully yours,
Muenz & Meritz, P.C.
By: /s/ Lawrence A. Muenz
---------------------
Lawrence A. Muenz
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Exhibit 23.2
[Coopers & Lybrand, LLP. Letterhead]
Consent of Independent Accountants
We consent to the inclusion in this Registration Statement of Lunn
Industries, Inc. on Form S-8 of our report dated April 4, 1996 on our audits
of the consolidated financial statements of Lunn Industries, Inc. as of
December 31, 1995, and for each of the years in the two year period ended
December 31, 1995 and 1994, which report is included in the Company's Annual
Report on Form 10-KSB.
/s/ Coopers & Lybrand, LLP.
---------------------------
Melville, New York
January 6, 1997
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