As filed with the Securities and Exchange Commission on January 24, 1997 -
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TRIPLE S PLASTICS, INC.
(Exact name of registrant as specified in its charter)
Michigan 38-1895876
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
14320 South Portage Road, Vicksburg, Michigan 49097-0905
(Address of Principal Executive Offices) (Zip Code)
Triple S Plastics, Inc. Outside Director Stock Option Plan
(Full Title of the Plan)
(Nameand address of agent for service)
Copies of Communications to:
J. Terry Moran
Varnum, Riddering, Schmidt & Howlett LLP
P.O. Box 352
Grand Rapids, Michigan 49501-0352
(616) 336-6000
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<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities Registered Offering Price Aggregate Offering Registration Fee
to be Registered Per Share (2) Price (2)
<S> <C> <C> <C> <C>
Common Stock
(No Par Value) 150,000 shares (1) $6.6875 $1,003,125 $200.63
</TABLE>
(1) Represents the number of shares of Common Stock authorized for issuance
under the Triple S Plastics, Inc. Outside Director Stock Option Plan
(the "Plan").
(2) For the purpose of computing the registration fee only, the price shown
is based upon the price of $6.6875 per share, the average of the high
and low sales prices for the Common Stock of Triple S Plastics, Inc. in
the NASDAQ National Market on January 22, 1997, in accordance with Rule
457(h).
Pursuant to Rule 416(a) of the General Rules and Regulations under the
Securities Act of 1933, this Registration Statement shall cover such additional
securities as may be offered or issued under the Plan to prevent dilution
resulting from stock splits, stock dividends or similar transactions.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance with Rule
428 of the Securities Act of 1933 and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company's Annual Report on Form 10-K for the year ended March 31,
1996, which has been filed by the Company with the Commission (File No. 0-23474)
is incorporated herein by reference. All other reports filed by the Company
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") since the end of the fiscal year covered by the
foregoing Annual Report on Form 10-K are incorporated herein by reference. All
other reports or documents filed by the Company pursuant to the requirements of
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date
hereof and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference herein and
to be a part hereof from the date of filing of such reports or documents. Any
statement contained in a document incorporated herein by reference shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained 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.
The description of the Company's Common Stock, the class of securities
offered pursuant to this Registration Statement, is contained in the Company's
Registration Statement filed pursuant to Section 12 of the Exchange Act, and is
incorporated herein by reference, including any subsequent amendments or reports
filed for the purpose of updating that description.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel
The financial statements and schedules incorporated by reference in
this Registration Statement have been audited by BDO Seidman LLP, independent
public accountants, to the extent and for the periods set forth in their reports
incorporated herein by reference, and are incorporated herein in reliance upon
such report given upon the authority of said firm as experts in auditing and
accounting.
Item 6. Indemnification of Directors and Officers.
The Articles of Incorporation of the Company provide that its directors
and officers are required to be indemnified as of right to the fullest extent
permitted under the Michigan Business Corporation Act ("MBCA") in connection
with any actual or threatened civil, criminal, administrative or investigative
action, suit or proceeding (whether brought by or in the name of the Company, a
subsidiary or otherwise) in which a director or officer is a witness or which is
brought against a director or officer in his or her capacity as a director,
officer, employee, agent or fiduciary of the Company or of any corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which the director or officer was serving at the request of the Company. Persons
who are not directors or officers of the Company may be similarly indemnified in
respect of said service to the extent authorized by the board of directors of
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the Company. Under the MBCA, directors, officers, employees or agents are
entitled to indemnification against expenses (including attorney fees) whenever
they successfully defend legal proceedings brought against them by reason of the
fact that they hold such a position with the corporation. In addition, with
respect to actions not brought by or in the right of the corporation,
indemnification is permitted under the MBCA for expenses (including attorney
fees), judgments, fines, penalties and reasonable settlements if it is
determined that the person seeking indemnification acted in a good faith and in
a manner he or she reasonably believed to be in and not opposed to the best
interest of the corporation or its shareholders and, with respect to criminal
proceedings, he or she had no reasonable cause to believe that his or her
conduct was unlawful. With respect to actions brought by or in the right of the
corporation, indemnification is permitted under the MBCA for expenses (including
attorney fees) and reasonable settlements, if it is determined that the person
seeking indemnification acted in good faith and in a manner he or she reasonably
believed to be in and not opposed to the best interest of the corporation or its
shareholders; provided, indemnification is not permitted if the person is found
liable to the corporation, unless the court in which the action or suit was
brought has determined that indemnification is fair and reasonable in view of
all the circumstances of the case.
The MBCA and the Company's Articles of Incorporation also authorize the
Company to provide indemnification broader than that set forth in the MBCA and
the Articles of Incorporation. Pursuant to this authority, the Company has
entered into indemnification agreements with each of its directors, which
provide a contractually enforceable right of indemnification to the fullest
extent permitted by law irrespective of the kind of claim or outcome. The
Company is not liable under the agreements where the claim involved intentional
misconduct, a knowing violation of law or an improper personal benefit to the
indemnitee, the claim involved certain unlawful disbursements of corporate funds
or other assets, the claim involved a violation of Section 16(b) of the Exchange
Act, or similar provision of state law or where indemnification is otherwise
prohibited by law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Reference is made to the Exhibit Index which appears on page S-5
hereof.
Item 9. Undertakings.
The Company 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 (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,
represents 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 (1)(i) and (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 by the Company 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) 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.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company'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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Company pursuant to the foregoing provisions or otherwise, the Company has been
advised that in the opinion of Securities and Exchange Commission, 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 Company of expenses
incurred or paid by a director, officer, or controlling person of the Company in
successful defense of the action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the Company 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 of 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 Company
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 Vicksburg, State of Michigan, on the 21st day of
January, 1997.
TRIPLE S PLASTICS, INC.
By /s/ Daniel B. Canavan
Daniel B. Canavan, Principal Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Daniel B. Canavan and Robert D. Monk, and
each of them, his true and lawful attorney-in-fact and agent, 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 and any other regulatory authority, granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing required 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 said attorney-in-fact and
agent, or his substitute, 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 on January 21, 1997, by the following persons in
the capacities indicated.
/s/ Daniel B. Canavan /s/ Daniel D. Northup
Daniel B. Canavan, Chief Executive Officer, Daniel D. Northup, Director
Chairman of the Board, and Director
/s/ Victor V. Valentine, Jr. /s/ David L. Stewart
Victor V. Valentine, Jr., President David L. Stewart, Director
and Director
/s/ Robert D. Monk
Robert D. Monk, Principal Financial Officer A. Chris Schauer, Director
/s/ William J. Stewart
William J. Stewart, Director James F. Hettinger, Director
/s/ Catherine A. Taylor
Catherine A. Taylor, Principal Accounting
Officer
S-4
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EXHIBIT INDEX
The following exhibits are filed as a part of the Registration Statement:
Item 5 Opinion of Varnum, Riddering, Schmidt & Howlett LLP
Item 23(a) Consent of BDO Seidman LLP
Item 23(b) Consent of Varnum, Riddering, Schmidt & Howlett LLP-included
in Exhibit 5
Item 24 Power of Attorney - included on page S-4 hereof
Item 99 Triple S Plastics, Inc. Outside Director Stock Option Plan
S-5
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January 23, 1997
Board of Directors
Triple S Plastics, Inc.
14320 South Portage Road
Vicksburg, Michigan 49097
Re: Registration Statement on Form S-8 Relating to the Triple S
Plastics, Inc. Outside Director Stock Option Plan
Dear Gentlemen:
With respect to the Registration Statement on Form S-8 (the
"Registration Statement") filed by Triple S Plastics, Inc., a Michigan
corporation (the "Company"), with the Securities and Exchange Commission for the
purpose of registering under the Securities Act of 1933, as amended, 150,000
shares of the Company's common stock, no par value, for issuance pursuant to the
Company's Outside Director Stock Option Plan (the "Plan"), we have examined such
documents and questions of law we consider necessary or appropriate for the
purpose of giving this opinion. On the basis of such evaluation, we advise you
that in our opinion the 150,000 shares covered by the Registration Statement,
upon the exercise of stock options, at the prices described in the Registration
Statement, and upon delivery of such shares and payment therefor in accordance
with the terms stated in the Plan and the Registration Statement, will be duly
and validly authorized, issued and outstanding and will be fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or under the rules and regulations of
the Securities and Exchange Commission relating thereto.
Very truly yours,
VARNUM, RIDDERING, SCHMIDT & HOWLETT LLP
/s/ Michael G. Wooldridge
Michael G. Wooldridge, Partner
Exhibit 5
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CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement of our report dated May 9, 1996, relating to the
financial statements and schedules of Triple S Plastics, Inc. appearing in the
Company's Annual Report on Form 10-K for the year ended March 31, 1996.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
Kalamazoo, Michigan
January 24, 1997
Exhibit 23(a)
H:\WPFILES\103-1139
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TRIPLE S PLASTICS, INC.
OUTSIDE DIRECTOR STOCK OPTION PLAN
ARTICLE I
GENERAL PROVISIONS
1.1 Purpose and Scope. The purpose of this Outside Director Stock
Option Plan is to make service on the Board of Directors of the Company more
attractive to present and prospective outside directors, as the continued
services of qualified outside directors are considered essential to the
Company's sustained progress.
1.2 Definitions. The following words and phrases shall have the
following meanings as used in this Plan:
(a) "Board" means the Board of Directors of the Company.
(b) "Company" means Triple S Plastics, Inc.
(c) "Market Value" means the closing sale price reported in
the Nasdaq Stock Market or, if such value is not available, such other
estimate of fair market value as the Board shall determine.
(d) "Option Price" means the purchase price for Shares payable
upon exercise of an option granted under this Plan.
(e) "Optionee" means a person to whom an option has been
granted under this Plan.
(f) "Outside Director" means a person who is a member of the
Board of Directors of the Company, but who is not an employee of the
Company.
(g) "Plan" means this Triple S Plastics, Inc. Outside Director
Stock Option Plan.
(h) "Shares" means the shares of common stock of the Company.
1.3 Administration. The Plan shall be administered by the Board, and
its interpretation and construction of any provision of the Plan shall be final
and binding. Each person who is or shall have been a member of the Board shall
be defended, indemnified, and
Exhibit 99
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held harmless by the Company, to the maximum extent permitted by law, from and
against any cost, liability, or expense imposed or incurred in connection with
such persons taking or failing to take any action under the Plan.
1.4 Shares Subject to Plan. The maximum number of Shares subject to
options granted under the Plan shall be 150,000 Shares, subject to adjustment as
provided in Section 3.1 below. The Shares may be authorized but unissued shares
or treasury shares. If any outstanding option expires or is terminated for any
reason before the end of the term for this Plan, the Shares covered by that
option shall be available for options subsequently granted under this Plan.
1.5 Eligibility; Grant of Options. Only Outside Directors shall be
eligible to receive options under this Plan. Outside Directors who are incumbent
directors at the time this Plan is proposed for approval by the Company's
shareholders and who continue in office as directors subsequent to that
shareholder approval shall be granted initial options to acquire 3,000 Shares
each, effective as of the date shareholders approve the Plan. Thereafter,
effective as of the date of each annual meeting of shareholders of the Company,
each Outside Director who continues in office as a director subsequent to that
meeting shall be granted an option to acquire 3,000 Shares. Any Outside Director
who is elected as a director by the Board, shall be granted an option to acquire
that number of Shares that is equal to 3,000 Shares multiplied by a fraction
that is equal to 365 minus the number of days that have elapsed since the last
annual meeting of shareholders, and dividing that difference by 365; the result
shall be rounded to the nearest whole share.
ARTICLE II
OPTIONS AND RIGHTS
2.1 Non-Statutory Stock Options. All options granted under the Plan
shall be non-statutory options, not entitled to special tax treatment under
Section 422 of the Internal Revenue Code of 1986, as amended.
2.2 Terms, Conditions, and Form of Options. Each option granted under
this Plan shall be evidenced by a written agreement in such form and containing
such terms as the Board shall from time to time approve, which agreements shall
comply with and be subject to the following terms and conditions:
(a) Options Non-Transferable. Each option granted under the
Plan by its terms shall not be transferable by the Optionee otherwise
than by will, or by the laws of descent and distribution, and shall be
exercised during the lifetime of the Optionee only by him or her. No
option or interest therein may be transferred, assigned, pledged or
hypothecated by the Optionee during his
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or her lifetime, whether by operation of law or otherwise, or be made
subject to execution, attachment or similar process.
(b) Period of Option. Options shall terminate upon the
expiration of ten (10) years from the date upon which such options were
granted (subject to prior termination as hereinafter provided).
(c) Exercise of Options. Options may be exercised, in full or
in part, only by giving written notice to the Company, stating the
number of Shares with respect to which the option is being exercised,
accompanied by payment in full for such Shares, which payment may be
made, in whole or in part, in cash, in Shares already owned by the
Optionee, valued at Market Value as of the date of the notice of
exercise, or by the surrender of option rights hereunder valued at the
difference between the Option Price and Market Value for the underlying
Shares; provided, however, that (i) there shall be no such exercise at
any one time as to fewer than one hundred (100) Shares, unless fewer
than one hundred (100) Shares remain to be purchased under the option
being exercised, and (ii) options may not be exercised for a period of
six (6) months after the date of grant.
(d) Death of Director. Any option granted an Optionee under
the Plan and outstanding on the date of his or her death may be
exercised by the personal representative of the Optionee's estate or by
the person or persons to whom the option is transferred pursuant to the
Optionee's will or in accordance with the laws of descent and
distribution, at any time prior to the specified expiration date of
such option or the first anniversary of the Optionee's death, whichever
is the first to occur. Upon the occurrence of the earlier such event,
the option shall then terminate.
2.3 Option Price. The Option Price for an option granted under
the Plan shall be the Market Value of the Shares covered by the option on the
last business day before the day the option is granted.
2.4 Notification of Exercise. Options shall be exercised by written
notice directed to the Chief Financial Officer of the Company at the principal
executive offices of the Company. Exercise by an Optionee's heir or personal
representative shall be accompanied by evidence of his or her authority to act,
in form reasonably satisfactory to the Company.
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ARTICLE III
ADDITIONAL PROVISIONS
3.1 Effect of Change in Stock Subject to the Plan. The aggregate number
of Shares available for options under the Plan, the Shares subject to any option
and the exercise price per share all shall be proportionately adjusted for any
increase or decrease in the number of issued Shares subsequent to the effective
date of the Plan resulting from: (a) a subdivision or consolidation of Shares or
any other capital adjustment; (b) the payment of a stock dividend; or (c) other
increase or decrease in such Shares effected without receipt of consideration by
the Company. If the Company shall be the surviving corporation in any merger or
consolidation, any option shall pertain, apply, and relate to the securities to
which a holder of the number of Shares subject to the option would have been
entitled after the merger or consolidation. Upon dissolution or liquidation of
the Company, or as of the effective date for a merger or consolidation in which
the Company is not the surviving corporation, all options outstanding under the
Plan shall terminate unless other provisions have been made in any outstanding
option agreement.
3.2 Compliance With Other Laws and Regulations. The Plan, the grant and
exercise of options, and the obligation of the Company to sell and deliver
Shares under options, shall be subject to all applicable federal and state laws,
rules, and regulations and to such approvals by any government or regulatory
agency as may be required. The Company shall not be required to issue or deliver
any certificates for Shares prior to the completion of any registration or
qualification of such Shares under any federal or state law, or any ruling or
regulation of any government body which the Company shall, in its sole
discretion, determine to be necessary or advisable.
3.3 Amendments. The Board may discontinue the Plan at any time, and may
amend it from time to time, but no amendment, without approval by shareholders,
may: (a) increase the total number of Shares which may be issued under the Plan
or to any individual under the Plan; (b) reduce the Option Price for Shares
which may be purchased pursuant to options under the Plan; (c) extend the period
during which options may be granted; or (d) modify the eligibility requirements
for participation in the Plan. Other than as expressly permitted under the Plan,
no outstanding option may be revoked or altered in a manner unfavorable to the
Optionee without the consent of the Optionee.
3.4 No Rights as Shareholder. No Optionee shall have any rights as a
shareholder with respect to any Share subject to his or her option prior to the
date of issuance of a certificate evidencing ownership of such Share, and no
adjustment will be made for dividends or other rights for which the record date
is prior to the date of the certificate, except as provided in Section 3.1.
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3.5 Withholding. Whenever the Company proposes or is required to issue
or transfer Shares under the Plan, the Company shall have the right to require
the Optionee to remit to the Company an amount sufficient to satisfy any
federal, state or local withholding tax liability prior to the delivery of any
certificate or certificates for such Shares.
3.6 Governing Law. The Plan and determinations made and actions taken
pursuant to the Plan shall be governed by, interpreted, and construed in
accordance with the laws of the state of Michigan, and the state courts seated
in Kalamazoo County, Michigan and the federal court seated in the Western
District of Michigan shall have exclusive jurisdiction and venue with respect to
any litigation of disputes arising out of the Plan, or relating to options
granted pursuant to the Plan.
3.7 Effective Date; Duration. The Plan shall become effective at such
time as it is approved by the shareholders of the Company, and it shall continue
in effect until the tenth anniversary of the date the Plan was adopted by the
Board. Options granted on or before the termination of the Plan may be exercised
according to the terms of the option agreements governing those options and
shall continue to be governed by and interpreted consistent with the terms of
this Plan.
CERTIFICATION
The foregoing Plan was adopted by the Company's Board of Directors on
____________, 1996, subject to subsequent shareholder approval.
/s/ Robert D. Monk
Robert D. Monk
Secretary
MORAN\TRIPLES\N055.016
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