REGISTRATION NO. 333 - _________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CUMBERLAND TECHNOLOGIES, INC.
-----------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Florida 59-3094503
-------------------------------- -------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4311 West Waters Avenue, Suite 401, Tampa, Florida 33614
-----------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
1991 Stock Option Plan
-------------------------------------------------
(Full title of the plan)
Joseph M. Williams
President
Cumberland Technologies, Inc.
4311 West Waters Avenue, Suite 401
Tampa, Florida 33614
-----------------------------------------------------------------
(Name and address of agent for service)
(813) 885-2112
-----------------------------------------------------------------
(Telephone number, including area code, of agent for service)
Copy to:
Stephen D. Fox, Esq.
Arnall Golden & Gregory, LLP
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3450
Telephone: (404) 873-8500
Facsimile: (404) 873-8501<PAGE>
<TABLE>
<CAPTION>
Calculation of Registration Fee
-------------------------------
Proposed Proposed
maximium maximium
offering aggregate
Title of price per offering Amount of
securities to Amount to be share <1> price <1> registration
be registered registered <F1> <F1> fee <1> <F1>
------------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Common Stock, 400,000 N/A $650,401 $181.00
$.001 par Shares
value
<FN>
<F1>
<1> These calculations are estimated solely for the purposes of calculating
the registration fee and are based (a) as to the 187,086 shares purchasable
upon the exercise of options already granted, upon the prices at which such
options may be exercised and (b) as to the remaining shares, on the basis of
the average of the closing bid and asked price for the Common Stock in the
NASDAQ market on February 1, 1999.
</FN>
/TABLE
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Certain Documents by Reference.
------- ------------------------------------------------
The following documents are incorporated by reference in the
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K, as
amended, filed with respect to the Registrant's fiscal year ended
December 31, 1997.
(b) The Quarterly Reports on Form 10-Q filed with respect
to the Registrant's quarterly periods ended March 31, June 30,
and September 30, 1998.
(c) The description of the Registrant's Common Stock, as
such description is set forth in the Registrant's registration
statement filed under Section 12 of the Securities Exchange Act
of 1934 effected by filing of Form 10 (File 0- 19727).
(d) All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective
amendment to this registration statement which indicates that all
of the shares of Common Stock offered have been sold or which
deregisters all of such shares then remaining unsold, shall be
deemed to be incorporated by reference in this registration
statement 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 registration
statement to the extent that a statement contained herein or 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 registration statement.
Item 4. Description of Securities.
------- --------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
------- ---------------------------------------
Not applicable.<PAGE>
Item 6. Indemnification of Directors and Officers.
------- ------------------------------------------
The Florida General Corporation Law permits indemnification
by Cumberland of any director, officer, employee or agent of
Cumberland or person who is serving at Cumberland's request as a
director, officer, employee or agent of another corporation, or
other enterprise. Section 607.0850 of the General Corporate Law
of the State of Florida is set forth below:
1. A corporation shall have power to indemnify any person
who was or is a party to any proceeding (other than an action by,
or in the right of, the corporation), by reason of the fact that
he is or was a director, officer, employee, or agent of the
corporation or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other
enterprise against liability incurred in connection with such
proceeding, including any appeal thereof, if he acted in good
faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any
proceeding by judgment, order, settlement, or conviction or upon
a plea of nolo contenders or its equivalent shall not, of itself,
create a presumption that the person did not act in good faith
and in a manner which he reasonably believed to be in, or not
opposed to, the best interest of the corporation or, with respect
to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
2. A corporation shall have power to indemnify any person,
who was or is a party to any proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, of officer, employee, or agent
of the corporation or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other
enterprise, against expenses and amounts paid in settlement not
exceeding, in the judgment of the board of directors, the
estimated expense of litigating the proceeding to conclusion,
actually and reasonably incurred in connection with the defense
or settlement of such proceeding, including any appeal thereof.
Such indemnification shall be authorized if such person acted in
good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the corporation, except
that no indemnification shall be made under this subsection in
respect of any claim, issue, or matter as to which such person
shall have been adjudged to be liable unless, and only to the
extent that, the court in which such proceeding was brought, or
any other court of competent jurisdiction, shall determine upon
application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such<PAGE>
court shall deem proper.<PAGE>
3. To the extent that a director, officer, employee, or
agent of a corporation has been successful on the merits or
otherwise in defense of any proceeding referred to in subsection
(1) or subsection (2), or in defense of any claim, issue, or
matter therein, he shall be indemnified against expenses actually
and reasonably incurred by him in connection therewith.
4. Any indemnification under subsection (1) or subsection
(2), unless pursuant to a determination by a court, shall be made
by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in subsection
(1) or subsection (2). Such determination shall be made:
(a) By the board of directors by a majority vote of a
quorum consisting of directors who were not parties to such
proceeding;
(b) If such a quorum is not obtainable or, even if
obtainable, by majority vote of a committee duly designated by
the board of directors (in which directors who are parties may
participate) consisting solely of two or more directors not at
the time parties to the proceeding;
(c) By independent legal counsel:
(i) Selected by the board of directors prescribed
in paragraph (a) or the committee prescribed paragraph
(b); or
(ii) If a quorum of the directors cannot be
obtained for paragraph (a) and the committee cannot be designated
under paragraph (b), selected by majority vote of the full board
of directors (in which directors who are parties may
participate); or
(d) By the shareholders by a majority vote of a quorum
consisting of shareholders who were not parties to such
proceeding or, if no such quorum is obtainable, by a majority
vote of shareholders who were not parties to such proceeding.
5. Evaluation of the reasonableness of expenses and
authorization of indemnification shall be made in the same manner
as the determination that indemnification is permissible.
However, if the determination of permissibility is made by
independent legal counsel, persons specified by paragraph (4)(c)
shall evaluate the reasonableness of expenses and may authorize
indemnification.<PAGE>
6. Expenses incurred by an officer or director in
defending a civil or criminal proceeding may be paid by the
corporation in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if he is ultimately
found not to be entitled to indemnification by the corporation
pursuant to this section. Expenses incurred by other employees
and agents may be paid in advance upon such terms or conditions
that the board of directors deems appropriate.
7. The indemnification and advancement of expenses
provided pursuant to this section are not exclusive, and a
corporation may make any other or further indemnification or
advancement of expenses of any of its directors, of officers,
employees, or agents, under any bylaw, agreement, vote of
shareholders or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office. However, indemnification or
advancement of expenses shall not be made to or on behalf of any
director, officer, employee, or agent if a judgment or other
final adjudication establishes that his actions, or omissions to
act, were material to the cause of action so adjudicated and
constitute:
(a) A violation of the criminal law, unless the
director, officer, employee, or agent had reasonable cause to
believe his conduct was lawful or had no reasonable cause to
believe his conduct was unlawful;
(b) A transaction from which the director, officer,
employee, or agent derived an improper personal benefit;
(c) In the case of a director, a circumstance under
which the liability provisions of s. 6070834 are applicable; or
(d) Willful misconduct or a conscious disregard for
the best interests of the corporation in a proceeding by or in
the right of the corporation to procure a judgement in its favor
or in a proceeding by or in the right of a shareholder.
8. Indemnification and advancement of expenses as provided
in this section shall continue as, unless otherwise provided when
authorized or ratified, to a person who has ceased to be a
director, officer, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrators of such a
person, unless otherwise provided when authorized or ratified.
9. Unless the corporation's articles of incorporation
provide otherwise, notwithstanding the failure of a corporation
to provide indemnification, and despite any contrary
determination of the board or of the shareholders in the specific
case, a director, officer, employee, or agent of the corporation
who is or was a party to a proceeding may apply for
indemnification or advancement of expenses, or both, to the court<PAGE>
conducting the proceeding, to the circuit court, or to another
court of competent jurisdiction.<PAGE>
On receipt of an application, the court, after giving any notice
that it considers necessary, may order indemnification and
advancement of expenses, including expenses incurred in seeking
court-ordered indemnification or advancement of expenses, if it
determines that:
(a) The director, officer, employee, or agent is
entitled to mandatory indemnification under subsection (3), in
which case the court shall also order the corporation to pay the
director reasonable expenses incurred in obtaining court-ordered
indemnification or advancement of expenses;
(b) The director, officer, employee, or agent is
entitled to indemnification or advancement of expenses, or both,
by virtue of the exercise by the corporation of its power
pursuant to subsection (7); or
(c) The director, officer, employee, or agent is
fairly and reasonably entitled to indemnification or advancement
of expenses, or both, in view of all the relevant circumstances,
regardless of whether such person met the standard of conduct set
forth in subsection (1), subsection (2), or subsection (7).
10. For purposes of this section, the term "corporation"
includes, in addition to the resulting corporation, any
constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any
person who is or was a director, officer, employee, or agent of a
constituent corporation, or is or was serving at the request of a
constituent corporation as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust,
or other enterprise, is in the same position under this section
with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its
separate existence had continued.
11. For purposes of this section:
(a) The term "other enterprises" includes employee
benefit plans;
(b) The term "expenses" includes counsel fees,
including those for appeal;
(c) The term "liability" includes obligations to pay a
judgment, settlement, penalty, fine (including an excise tax
assessed with respect to any employee benefit plan), and expenses
actually and reasonably incurred with respect to a proceeding;
(d) The term "proceeding" includes any threatened,
pending, or completed action, suit, or other type of proceeding,
whether civil, criminal, administrative, or investigative and
whether formal or informal;<PAGE>
(e) The term "agent" includes a volunteer;
(f) The term "serving at the request of the
corporation" includes any service as a director, officer,
employee, or agent of the corporation that imposes duties on such
persons, including duties relating to an employee benefit plan
and its participants or beneficiaries; and
(g) The term "not opposed to the best interest of the
corporation" describes the actions of a person who acts in good
faith and in a manner he reasonably believes to be in the best
interests of the participants and beneficiaries of an employee
benefit plan.
12. A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee, or agent of the corporation or is or was
serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise against any liability
asserted against him and incurred by him in any such capacity or
arising out of this status as such, whether or not the
corporation would have the power to indemnify him against such
liability under the provisions of this section.
Cumberland's Articles of Incorporation and Bylaws provide
that Cumberland shall, to the fullest extent permitted by the
laws of the State of Florida, indemnify any director, officer,
and employee of Cumberland against expenses incurred by such
person by reason of the fact that he serves or has served
Cumberland in such capacity.
Cumberland's Bylaws provide that Cumberland shall, to the
fullest extent permitted by the laws of the State of Florida,
indemnify each officer or director against expenses (including
attorney's fees), judgments, taxes, fines, and amounts paid in
settlement incurred by him in connection with, and shall advance
expenses (including attorney's fees) incurred by him in
defending, any threatened, pending or completed action, suit or
proceeding (whether civil, criminal, administrative or
investigative) through which he is, or is threatened to be made,
a party by reason of his being a director or officer of
Cumberland, or his serving or having served at the request of
Cumberland as a director, officer, partner, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise.
Indemnification under Cumberland's Articles of Incorporation
and Bylaws is nonexclusive of any other right such persons may
have under statute, agreement, bylaw or action of the Board of
Directors or shareholders of the corporation.
Item 7. Exemption from Registration Claimed.
------- ------------------------------------<PAGE>
Not applicable.<PAGE>
Item 8. Exhibits.
------- ---------
Exhibit No. Exhibit
----------- -------
3.1 Articles of Incorporation of the Registrant
(incorporated herein by reference to Exhibit 3(a)
filed with the Registrant's Registration Statement
on Form 10 (File No. 0-19727))
3.2 Bylaws of Registrant (incorporated herein by
reference to Exhibit 3(b) filed with the
Registrant's Registration Statement on
Form 10 (File No. 0- 19727))
5* Opinion of Arnall Golden & Gregory, LLP regarding
legality
10.1 1991 Stock Option Plan (incorporated herein by
reference to Exhibit 10(c) filed with the
Registrant's Registration Statement on Form 10
(File No. 0-19727))
23.1* Consent of Arnall Golden & Gregory LLP (included
as part of Exhibit 5 hereto)
23.2* Consent of Ernst & Young, LLP
24* Power of Attorney (included as part of the
signature page hereto)
* Included with this filing.
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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(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:<PAGE>
(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 paragraph (a)(l)(i) and
(a)(l)(ii) shall 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 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.
(3) To remove 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 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 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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.<PAGE>
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the provisions described in Item 6, or otherwise, the Registrant
has been advised 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. 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
proceedings) 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 Act and will be governed by the final adjudication of such
issue.<PAGE>
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 Tampa, State of Florida on February 1, 1999.
CUMBERLAND TECHNOLOGIES, INC.
By: /s/ Joseph M. Williams
------------------------------
Joseph M. Williams, President
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Francis M.
Williams, Joseph M. Williams and Carol S. Black and each of them,
his true and lawful attorneys-in-fact and agents, with full power
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, and each of them, 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 he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.<PAGE>
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.
Date: February 1, 1999 By: /s/ Joseph M. Williams
------------------------------
Joseph M. Williams, President
Date: February 1, 1999 By: /s/ Francis M. Williams
------------------------------
Francis M. Williams, Chairman
of the Board
Date: February 1, 1999 By: /s/ George A. Chandler
------------------------------
George A. Chandler, Director
Date: February 1, 1999 By: /s/ Andrew J. Cohen
------------------------------
Andrew J. Cohen, Director
Date: February 1, 1999 By: /s/ Carol S. Black
------------------------------
Carol S. Black, Secretary
(Principal Financial and
Accounting Officer)<PAGE>
CUMBERLAND TECHNOLOGIES, INC.
EXHIBITS TO REGISTRATION STATEMENT
ON FORM S-8<PAGE>
EXHIBIT INDEX
-------------
Exhibit No. Exhibit
----------- -------
3.1 Articles of Incorporation of the Registrant
(incorporated herein by reference to Exhibit
3(a) filed with the Registrant's Registration
Statement on Form 10 (File No. 0- 19727))
3.2 Bylaws of Registrant (incorporated herein by
reference to Exhibit 3(b) filed with the
Registrant's Registration Statement on Form
10 (File No. 0-19727))
5* Opinion of Arnall Golden & Gregory, LLP
regarding legality
10.1 1991 Stock Option Plan (incorporated herein
by reference to Exhibit 10(c) filed with the
Registrant's Registration Statement on Form
10 (File No. 0-19727))
23.1* Consent of Arnall Golden & Gregory, LLP
(included as part of Exhibit 5 hereto)
23.2* Consent of Ernst & Young LLP
24* Power of Attorney (included as part of the
signature page hereto)
* Included with this filing.<PAGE>
(404) 873-8500
(404) 873-8501
February 1, 1999
Cumberland Technologies, Inc.
4311 West Waters Avenue
Suite 401
Tampa, Florida 33614
Re: Registration Statement on Form S-8
--------------------------------------
Ladies and Gentlemen:
This opinion is rendered in connection with the proposed issue
and sale by Cumberland Technologies, Inc., a Florida corporation
(the "Company"), of up to 400,000 shares of the Company's Common
Stock, $.001 par value (the "Shares"), upon the terms and
conditions set forth in the Registration Statement on Form S-8
(the "Registration Statement") filed by the Company with the
Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Act").
In rendering the opinion contained herein, we have relied in part
upon examination of the Company's corporate records, documents,
certificates and other instruments and the examination of such
questions of law as we have considered necessary or appropriate
for the purpose of this opinion. Based upon the foregoing, and
assuming that the purchase price of each of the Shares will equal
or exceed the par value thereof and the amount specified by the Board
of Directors of the Company as the purchase price thereof, we are
of the opinion that the Shares will have been duly and validly
authorized and when sold in the manner contemplated by the
Cumberland Technologies, Inc. 1991 Stock Option Plan, and upon
receipt by the Company of payment therefor, and upon issuance
thereof when there exist sufficient authorized but unissued Shares for
such issuance, they will be legally issued, fully paid and
non-assessable. We consent to the filing of this opinion as an
exhibit to the Registration Statement. This consent is not to be
construed as an admission that we are a party whose consent is
required to be filed with the Registration Statement under the
provisions of the Securities Act of 1933, as amended.
Sincerely,
BY: /s/ ARNALL GOLDEN & GREGORY, LLP<PAGE>
Consent of Independent Certified Public Accountants
---------------------------------------------------
The Board of Directors
Cumberland Technologies, Inc.
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of Cumberland Technologies, Inc. of our
report dated March 24, 1998, with respect to the consolidated
financial statements and schedules of Cumberland Technologies,
Inc. included in its Form 10-K for the year ended December 31,
1997 filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
February 1, 1999
Tampa, Florida<PAGE>
