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As filed with the Securities and Exchange Commission on November 8, 1995
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Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUDBURY, INC.
(Exact name of registrant as specified in its charter)
Delaware 34-154692
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
30100 Chagrin Boulevard
Suite 203
Cleveland, OH 44124
(Address of registrant's principal executive offices)
SUDBURY, INC. 1995 STOCK OPTION PLAN
(Full title of the Plan)
Mary C. Farrar
Corporate Secretary
30100 Chagrin Boulevard
Suite 203
Cleveland, OH 44124
(Name and address of agent for service)
(216) 464-7026 Ext. 129
(Telephone Number, including area code of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to Be Offering Price Per Aggregate Offering Registration
to Be Registered Registered Share (1) Price (1) Fee (1)
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Common Stock, par 1,000,000 shares $8.425 $8,425,000 $2,905.17
value $.01 per share
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<FN>
(1)Estimated solely for the purpose of calculating the registration fee. The
price per share and aggregate offering price are based upon (a) the average
exercise price per share of options previously granted under the Sudbury, Inc.
1995 Stock Option Plan and (b) the average of the high and low sale prices on
November 3, 1995 of the Company's Common Stock, as reported by the NASDAQ
National Market System with respect to all other shares of Common Stock.
Page 1 of __ Pages. Exhibit Index located at Page 8.
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INTRODUCTION
This Registration Statement relates to shares of Common Stock of
Sudbury, Inc., a Delaware Corporation, (the "Company") authorized for issuance
under the Company's 1995 Stock Option Plan (the "Plan") and consists of those
items required by the General Instructions to Form S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the instructions to Form S-8, Part I (Information Required
in the Section 10(a) Prospectus) the Prospectus is not filed as part of this
Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or to be filed by Sudbury, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
hereby incorporated or deemed to be incorporated in this Registration Statement
by reference.
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended May 31, 1995. File No. 1-10023.
(b) The Company's Quarterly Report on Form 10-Q for the
quarter ended August 31, 1995. File No. 1-10023.
(c) The description of the Company's Common Stock
contained in the Company's Registration Statement on
Form 8-A filed with the Commission pursuant to the
Securities Exchange Act of 1934, as amended,
("Exchange Act") on September 11, 1992. File No.
1-10023.
(d) All documents subsequently filed by the Company with
the Commission pursuant to Sections 13 or 15(d) of
the Exchange Act prior to the filing of a
post-effective amendment to this Registration
Statement indicating that all securities registered
hereby have been sold or which de-registers 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 such documents.
Any statement contained in a document incorporated by, 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 statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation -- a "derivative action"),
if they acted in good faith and in a manner they 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 their
conduct was unlawful. A similar standard is applicable in the case of
derivative actions, except that indemnification only extends to expenses
(including attorneys' fees) incurred in connection with defense or settlement
of such action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
rights to which those seeking indemnification may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 102(b) (7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation 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 corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) for payments of unlawful dividends or unlawful stock repurchases or
redemptions, or (iv) for any transaction from which the director derived an
improper personal benefit. The first paragraph of Article Seventh of the
Company's Certificate of Incorporation provides for such limitation of
liability.
The Company maintains directors' and officers' insurance and has
entered into Indemnification Agreements with each of its directors and
executive officers.
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Additionally Article IV of the Company's By-laws provides as follows:
Each person who is made a party to any suit or proceeding, by reason
of the fact that the person is or was a director or officer of the Company or
is or was serving at the request of the Company as an employee or agent shall
be indemnified and held harmless by the Company to the fullest extent
authorized by the General Corporation Law of the State of Delaware, against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred
in connection therewith.
The right to indemnification includes the right to be paid by the
Company the expenses incurred in defending any proceeding for which the right
to indemnification is applicable in advance of its final disposition.
The rights to indemnification and to the advancement of expenses
conferred by the By-laws shall not be exclusive of any other right which any
person may have or acquire under any statute, the Company's certificate of
incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
The Company may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the Company or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Company would have the power to
indemnify such person against such expense, liability or loss under the General
Corporation Law of the State of Delaware.
The Company may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification, and to the advancement of
expenses to any employee or agent of the Company to the fullest extent of the
provisions of the By-laws with respect to the indemnification and advancement
of expenses of directors and officers of the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
(4)(a) Second Restated Certificate of Incorporation of Sudbury, Inc.
(Incorporated herein by reference is Exhibit (3)(b) to the
Company's Form 10-K for the fiscal year ended May 31, 1993.
File No. 1-10023).
(4)(b) By-laws of Sudbury, Inc. (Incorporated herein by reference is
Exhibit (3)(a) of the Company's Form 10-K for the fiscal year
ended May 31, 1993. File No. 1-10023).
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(4)(c) Sudbury, Inc. 1995 Stock Option Plan.
(5) Opinion of Benesch, Friedlander, Coplan & Aronoff.
(23)(a) Consent of Benesch, Friedlander, Coplan & Aronoff (contained in
Exhibit (5).
(23)(b) Consent of Ernst & Young LLP.
(24) Powers of Attorney.
Item 9. Undertakings
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 (the "Securities Act"),
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement which,
individually, or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement, and (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 sub- items (i) and (ii) in paragraph (1) do not apply
because the Registration Statement is on Form S-8 and as long
as the information required to be included in a post-effective
amendment by sub-items (i) and (ii) is contained in periodic
reports filed with or furnished to the Commission by the
Company pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in this 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.
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(4) That, for the 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.
(5) 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 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 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 any 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 of
whether or not such indemnification 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 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 Pepper Pike, State of Ohio, on the 8th day of
November, 1995.
SUDBURY, INC.
(Registrant)
By: /s/Jacques R. Sardas
Jacques R. Sardas
Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in their
indicated capacities, as of November 8, 1995.
Signature Title
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/s/ Jacques R. Sardas Chairman of the Board, President, Chief Executive
- --------------------- Officer (Principal Executive Officer) and Director
Jacques R. Sardas
/s/ Mark E. Brody Vice President and Chief Financial Officer
- ----------------- (Principal Financial Officer and Principal Accounting Officer)
Mark E. Brody
/s/ Cloyd J. Abruzzo* Director
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Cloyd J. Abruzzo
/s/Jerry A. Cooper* Director
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Jerry A. Cooper
/s/Preston Heller, Jr.* Director
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Preston Heller, Jr.
/s/James A. Karman* Director
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James A. Karman
/s/David A. Preiser* Director
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David A. Preiser
/s/ Thomas F. Slater* Director
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Thomas F. Slater
*By: /s/Mary C. Farrar
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Attorney-in-fact
November 8, 1995
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SUDBURY, INC.
FORM S-8
EXHIBIT INDEX
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EXHIBIT NUMBER SEQUENTIAL
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PAGE NO.
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(4)(a) Second Restated Certificate of Incorporation of *
Sudbury, Inc. (Incorporated herein by reference
is Exhibit (3)(b) to the Company's Form 10-K
for the fiscal year ended May 31, 1995,
File No. 1-10023).
(4)(b) By-laws of Sudbury, Inc. (Incorporated herein by *
reference is Exhibit (3)(a) of the Company's
Form 10-K for the fiscal year ended May 31, 1995).
(4)(c) Sudbury, Inc. 1995 Stock Option Plan.
(5) Opinion of Benesch, Friedlander, Coplan & Aronoff.
(23)(a) Consent of Benesch, Friedlander, Coplan & Aronoff
(contained in Exhibit (5).
(23)(b) Consent of Ernst & Young LLP.
(24) Powers of Attorney.
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