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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 20, 1999
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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 Identification No.)
incorporation or organization)
21250 HAWTHORNE BOULEVARD, SUITE 500, TORRANCE, CALIFORNIA 90503
(Address of Principal Executive Office, including Zip Code)
PLASTRON ACQUISITION 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>
=========================================================================================================
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
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 55,250 shares $9.553 $527,803.25 $158.34
$.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 price at which stock options may be
exercised.
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INTRODUCTION
This Registration Statement on Form S-8 is filed by Summa Industries, a
Delaware corporation (the "Company"), relating to 55,250 shares of the Company's
common stock, par value $.001 per share (the "Common Stock"), issuable to
eligible employees and consultants of the Company under the Plastron Acquisition
Stock Option Plan (the "Plan").
PART I
INFORMATION REQUIRED IN THE
SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I (plan
information and registrant information) will be sent or given to participants as
specified by Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents previously filed by the Company with the
Commission are incorporated herein by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
August 31, 1998;
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended November 30, 1998 and February 28, 1999;
(c) The Company's Current Report on Form 8-K dated March 5, 1999; and
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment hereto 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 the prospectus and to be a part hereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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 approximately
1,900 shares of the Company's Common Stock and, under
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stock option plans of the Company, holds options to purchase 87,907 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.
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, 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
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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 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 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index appearing at page 7 below.
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:
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(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(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)(ii) 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 with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) 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.
(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, 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 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) 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 Securities and Exchange
Commission such indemnification is against pubic 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
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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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 May 17, 1999.
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
- --------- ----- ----
<S> <C> <C>
/s/ James R. Swartwout Chairman of the Board, President May 17, 1999
- ------------------------------ & Chief Financial Officer
James R. Swartwout (Principal Executive and Financial Officer)
/s/ Michael L. Horst Director May 17, 1999
- ------------------------------
Michael L. Horst
/s/ William R. Zimmerman Director May 17, 1999
- ------------------------------
William R. Zimmerman
/s/ David McConaughy Director May 17, 1999
- ------------------------------
David McConaughy
/s/ Byron C. Roth Director May 17, 1999
- ------------------------------
Byron C. Roth
/s/ Josh T. Barnes Director May 17, 1999
- ------------------------------
Josh T. Barnes
/s/ Paul A. Walbrun Vice President & Controller May 17, 1999
- ------------------------------ (Principal Accounting Officer)
Paul A. Walbrun
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
4.1 Certificate of Incorporation of the Company(1)
4.2 Bylaws of the Company(1)
5.1 Opinion of Trygve M. Thoresen, Esq.
10.1 Plastron Acquisition Stock Option Plan(2)
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)
</TABLE>
- ------------------
(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.
(2) Incorporated by reference from the exhibits to the Company's Form 8-K dated
March 5, 1999.
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EXHIBIT 5.1
[Summa Industries letterhead]
May 20, 1999
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 55,250 shares of the Company's Common Stock, par value $.001 per share (the
"Shares") issuable under the Plastron Acquisition 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
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 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
ARTHUR ANDERSEN LLP
Los Angeles, California
May 20, 1999
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