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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 15, 1998
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Securities and Exchange Commission
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SUMMA INDUSTRIES
(Exact name of registrant as specified in its charter)
DELAWARE 95-1240978
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
21250 HAWTHORNE BOULEVARD, SUITE 500, TORRANCE, CALIFORNIA 90503
(Address of Principal Executive Office, including Zip Code)
1995 STOCK OPTION PLAN
(Full title of the plan)
TRYGVE M. THORESEN, ESQ.
21250 HAWTHORNE BOULEVARD, SUITE 500
TORRANCE, CALIFORNIA 90503
(Name and address of agent for service)
(310) 792-7024
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of Amount Maximum maximum Amount of
securities to to be offering price aggregate registration
be registered registered(1) per share(2) offering price(2) fee
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<S> <C> <C> <C> <C>
Common Stock, 100,000 shares $9.9375 $993,750.00 $301.14
$.001 par value
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</TABLE>
(1) There is also being registered hereunder such additional undetermined number
of shares of Common Stock that may be issued from time to time as a result of
the anti-dilution provisions of the Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on the average of the high and low prices of
the Common Stock as reported on December 10, 1998 on The Nasdaq National Market.
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INTRODUCTION
This Registration Statement on Form S-8 is filed by Summa Industries, a
Delaware corporation (the "Company"), relating to an additional 100,000 shares
of the Company's common stock, par value $.001 per share (the "Common Stock"),
issuable to eligible employees of the Company under the Company's 1995 Stock
Option Plan (the "Plan"), and consists only of those items required by General
Instruction E to Form S-8.
PART II
INCORPORATION OF PREVIOUSLY FILED
REGISTRATION STATEMENT
The contents of the Registration Statement on Form S-8, Registration No.
333-20835, previously filed with the Securities and Exchange Commission (the
"Commission") by the Company on January 31, 1997 are incorporated herein by
reference and made a part hereof.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Pursuant to General Instruction E to Form S-8, the following information
is included in this Registration Statement as information required in the new
registration statement that is not in the earlier registration statement:
The legality of the shares of Common Stock offered hereby has been
passed upon for the Company by Trygve M. Thoresen, Vice President, General
Counsel & Secretary of the Company. Mr. Thoresen beneficially owns 1,250 shares
of the Company's Common Stock and, under stock option plans of the Company,
holds options to purchase 77,907 shares of Common Stock at varying prices,
64,615 of which are vested as of the filing date hereof.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to General Instruction E to Form S-8, the following information
is included in this Registration Statement as information required in the new
registration statement that is not in the earlier registration statement, as the
Company reincorporated from the State of California to the State of Delaware:
The Company is a Delaware corporation. Section 145(a) of the Delaware
General Corporation Law (the "GCL") provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Company) by reason of the fact that such person is or was a
director, officer, employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation or enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if he or she
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
Section 145(b) of the GCL provides that a Delaware corporation may
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 suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if he or she
acted under similar standards, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Company unless and only to the extent that the
court in which such action or suit was brought shall determine that,
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despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to be indemnified for
such expenses which the court shall deem proper.
Section 145 of the GCL further provides that (i) to the extent a
director or officer of a corporation has been successful in the defense of any
action, suit or proceeding referred to in subsections (a) and (b) or in the
defense of any claim, issue or matter therein, such officer or director shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith, (ii) expenses (including
attorneys' fees) incurred by a director or officer in defending any such action
may be paid in advance of the final disposition of such action upon receipt of
an undertaking to repay such amounts if it is ultimately determined that such
director or officer was not entitled to indemnification, (iii) indemnification
provided for by Section 145 shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled, and (iv) the Company may purchase
and maintain insurance on behalf of a director or officer of the Company against
any liability asserted against such officer or director and incurred by him or
her in any such capacity or arising out of his or her status as such, whether or
not the Company would have the power to indemnify him or her against such
liabilities under Section 145.
The Company's Certificate of Incorporation requires that a director of
the Company shall not be personally liable to the Company or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the GCL, or (iv) for any transaction from which the director derived any
improper personal benefit. If the GCL is amended to authorize, with the approval
of a corporation's stockholders, further reductions in the liability of the
directors of a corporation for breach of fiduciary duty, then a director of the
Company shall not be liable for any such breach to the fullest extent permitted
by the GCL as so amended. Any repeal or modification of the foregoing provisions
by the stockholders of the Company will not adversely affect any right or
protection of a director of the Company existing at the time of such repeal or
modification.
The Company's Bylaws require that the Company shall, to the fullest
extent authorized under the laws of the State of Delaware, as those laws may be
amended and supplemented from time to time, indemnify any director made, or
threatened to be made, a party to an action or proceeding, whether criminal,
civil, administrative or investigative, by reason of being a director of the
Company or a predecessor corporation or, at the Company's request a director or
officer of another corporation, provided, however, that the Company shall
indemnify any such agent in connection with a proceeding initiated by such agent
only if such proceeding was authorized by the Board of Directors of the Company.
The indemnification in the Bylaws shall (i) not be deemed exclusive of any other
rights to which those indemnified may be entitled under any bylaw, agreement or
vote of stockholders or disinterested directors or otherwise, both as to action
in their official capacities and as to action in another capacity while holding
such office, (ii) continue as to a person who has ceased to be a director, and
(iii) inure to the benefit of the heirs, executors and administrators of such a
person. The Company 's obligation to provide indemnification shall be offset to
the extent of any other source of indemnification or any otherwise applicable
insurance coverage under a policy maintained by the Company or any other person.
Under the Bylaws, expenses incurred by a director of the Company in
defending a civil or criminal action, suit or proceeding by reason of the fact
that he is or was a director of the Company (or was serving at the Company's
request as a director or officer of another entity) shall be paid by the Company
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director to repay such amount
if it shall ultimately be determined that he is not entitled to be indemnified
by the Company as authorized by the GCL. Notwithstanding the foregoing, the
Company shall not be required to advance such expenses to an agent who is a
party to an action, suit or proceeding brought by the Company and approved by a
majority of the Board of Directors which alleges willful misappropriation of
corporate assets by such agent, disclosure of confidential information in
violation of such agent's fiduciary or contractual obligations to the Company or
any other willful and deliberate breach in bad faith of such agent's duty to the
Company or its stockholders.
The Bylaws further provide that its indemnification provisions shall be
deemed to be a contract between the Company and each director who serves in such
capacity at any time while the provisions are
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in effect, and any repeal or modification thereof shall not affect any rights or
obligations then existing with respect to any state of facts then or theretofore
existing or any action, suit or proceeding theretofore or thereafter brought
based in whole or in part upon any such state of facts. The Board of Directors,
in its discretion, shall have power to indemnify any person, other than a
director, made a party to any action, suit or proceeding by reason of the fact
that he, his testator or intestate, is or was an officer or employee of the
Company.
The Bylaws also state that Section 145 of the GCL shall be interpreted
as follows: an "other enterprise" shall be deemed to include an employee benefit
plan, including without limitation, any plan of the Company which is governed by
the Act of Congress entitled "Employee Retirement Income Security Act of 1974,"
as amended from time to time; the Company shall be deemed to have requested a
person to serve an employee benefit plan where the performance by such person of
his duties to the Company also imposes duties on, or otherwise involves services
by, such person to the plan or participants or beneficiaries of the plan; excise
taxes assessed on a person with respect to an employee benefit plan pursuant to
such Act of Congress shall be deemed "fines."
The Company also maintains directors and officers liability insurance
covering the costs of defense, settlement or payment of a judgment under certain
circumstances.
ITEM 8. EXHIBITS.
See Exhibit Index appearing at page 6 below.
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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 Torrance, State of California, on December 10, 1998.
SUMMA INDUSTRIES
By: /s/ Trygve M. Thoresen
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Trygve M. Thoresen,
Vice President,
General Counsel & Secretary
Each person whose signature appears below constitutes and appoints
James R. Swartwout and Trygve M. Thoresen his true and lawful attorneys-in-fact
and agents, each acting alone, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement 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, each acting alone,
with full powers and authority, to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as full to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming that all said attorneys-in-fact and agents, each acting alone, or his
substitutes 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 below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ James R. Swartwout Chairman of the Board, President December 10, 1998
- ----------------------------- & Chief Financial Officer
James R. Swartwout (Principal Executive and Financial Officer)
/s/ Coalson C. Morris Director December 10, 1998
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Coalson C. Morris
/s/ Michael L. Horst Director December 10, 1998
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Michael L. Horst
/s/ William R. Zimmerman Director December 10, 1998
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William R. Zimmerman
/s/ David McConaughy Director December 10, 1998
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David McConaughy
/s/ Byron C. Roth Director December 10, 1998
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Byron C. Roth
/s/ Josh T. Barnes Director December 10, 1998
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Josh T. Barnes
/s/ Paul A. Walbrun Vice President & Controller December 10, 1998
- ---------------------------- (Principal Accounting Officer)
Paul A. Walbrun
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 Certificate of Incorporation of the Company(1)
4.2 Bylaws of the Company(1)
5.1 Opinion of Trygve M. Thoresen, Esq.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Trygve M. Thoresen, Esq. (included in Exhibit 5.1)
24.1 Power of Attorney (contained in signature page hereof)
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(1) Incorporated by reference from the appendices to the Company's definitive
Proxy Statement on Schedule 14A, file no. 001-07755, for the Annual Meeting of
Shareholders held on January 26, 1998.
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EXHIBIT 5.1
[Summa Industries Letterhead]
December 14, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I am the General Counsel of Summa Industries, a Delaware corporation
(the "Company"), and have acted as counsel for the Company in connection with
the preparation of a Registration Statement on Form S-8 (the "Registration
Statement") filed with the Securities and Exchange Commission under the
Securities Act of 1933 pertaining to the issuance and sale of up to an aggregate
of 100,000 shares of the Company's Common Stock, par value $.001 per share (the
"Shares") issuable under the Company's 1995 Stock Option Plan (the "Plan").
For the purpose of rendering this opinion, I have examined and relied
upon such records, documents, certificates and other instruments and made such
legal and factual examinations and inquiries as I have deemed necessary or
appropriate. On the basis of such examinations and inquiries, and relying
thereon, I am of the opinion that the Shares are duly authorized and, when
issued and sold upon exercise of options granted under the Plan on the terms and
conditions set forth therein, will be validly issued, fully paid and
nonassessable under the laws of the State of Delaware.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to my name under Item 5 of Part II
of the Registration Statement.
Very truly yours,
/s/ Trygve M. Thoresen
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Trygve M. Thoresen, Esq.
General Counsel
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8 of our
reports dated October 6, 1998 included in Summa Industries' Form 10-K for the
year ended August 31, 1998 and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
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ARTHUR ANDERSEN LLP
Los Angeles, California
December 14, 1998
