As
filed with the Securities and Exchange Commission on November 10,
2008
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
Registration
Statement Under The Securities Act of 1933
SUPERIOR
INDUSTRIES INTERNATIONAL, INC.
(Exact
name of registrant as specified in its charter)
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California
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95-2594729
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(I.R.S.
Employer
Identification
No.)
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7800
Woodley Avenue
Van
Nuys, California 91406
(818)
781-4973
(Address,
including zip code, and telephone number, including area code, of
registrant’s
principal executive
office)
Superior
Industries International, Inc. 2008 Equity Incentive Plan
(Full
title of Plan)
Robert
A. Earnest
Superior
Industries International, Inc.
7800
Woodley Avenue
Van
Nuys, California 91406
(818)
902-2585
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large
accelerated filer
o
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Accelerated
filer
þ
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Non-accelerated
filer
o
(Do
not check if a smaller reporting company)
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Smaller
reporting company
o
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities to be Registered
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Amount
To
Be
Registered
(
1)(2)
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Proposed
Maximum
Offering
Price
Per
Share
(3)
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Proposed
Maximum
Aggregate Offering
Price
(3)(4)
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Amount
of
Registration
Fee
(1)(3)
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Common
Stock (no par value) issuable under the Superior Industries International,
Inc. 2008 Equity Incentive Plan
Registration Fee
Offset
(4)
TOTAL
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3,500,000
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$13.78
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$48,230,000
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$1,895.44
($1,184.68)
$
710.76
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(1)
This registration statement is (a) a new registration statement; and (b) a
Post-Effective Amendment No. 1 to the Registrant’s registration statement on
Form S-8 File No. 333-107380, as filed with the Securities and Exchange
Commission on July 28, 2003 (the “2003 Registration Statement”). The
3,500,000 shares being registered hereby includes 346,351 shares issuable under
the Superior Industries International, Inc. 2003 Equity Incentive Plan (the
“2003 Plan”) previously registered for sale by the 2003 Registration Statement,
but which were unused and unsold. As a result, the registration fees
paid with respect to the 2003 Registration Statements are being carried over to
this registration statement in accordance with Rule 457(p) under the Securities
Act of 1933, as amended.
(2)
Pursuant to Rule 416(a) of the Securities Act of 1933, as
amended, this registration statement shall also cover any additional shares of
Registrant’s common stock that become issuable under the 2008 Equity Incentive
Plan by reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without receipt of consideration that increases the
number of outstanding shares of Registrant’s common stock.
(3)
The
registration fee payable for 3,153,649 shares of the 3,500,000 shares being
registered hereby under the 2008 Equity Incentive Plan is estimated pursuant to
Rule 457(h) of the Securities Act of 1933. The price per share and aggregate
offering price for such shares are based on the average of the high and low
prices of shares of the Registrant’s Common Stock reported on the New York Stock
Exchange on November 6, 2008.
(4)
The registration fee payable for 346,351 shares of the
3,500,000 being registered hereby under the 2008 Equity Incentive Plan was
previously paid with the 2003 Registration Statement. The calculation of the
2003 Registration Statement fees paid and being applied to this registration
statement are as set forth below.
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Offering
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Maximum
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Amount
of
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Number
of
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Price
per
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Aggregate
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Registration
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Date
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Total
Shares
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Shares
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Share
Paid
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Offering
Price
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Fee
Paid for
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Registration
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Registration
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Plan
Under Which
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Originally
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Carried
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On
Shares
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For
Shares
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Shares
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Statement
Filed
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Statement
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Shares
Registered
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Registered
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Over
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Carried
Over
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Carried
Over
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Carried
Over
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July
28, 2003
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333-107380
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Superior Industries
International, Inc. 2003 Equity Incentive Plan
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3,000,000
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346,351
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$
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42.28
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(A)
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$
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14,643,720
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$1,184.68
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Total
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3,000,000
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346,351
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$
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14,643,720
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$1,184.68
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(A)
Estimated solely for the purpose of computing the registration fee of the 2003
Registration Statement as the average of the high and low prices of the Common
Stock reported on
the New York Stock Exchange on
July 22, 2003 pursuant to Rule 457(h) and Rule 457(c) of the
Securities Act of 1933, as amended
Superior
Industries International, Inc. (the “Registrant”) has filed this registration
statement to register under the Securities Act of 1933, as amended, the offer
and sale of 3,500,000 shares of common stock issuable pursuant to the
Registrant’s 2008 Equity Incentive Plan. The 2008 Equity Incentive
Plan was approved and adopted at the Registrant’s 2008 Annual Meeting of
Stockholders held on May 30, 2008. The 3,500,000 shares issuable
under the 2008 Equity Incentive Plan is, for purposes of calculation of the fees
under this registration statement, comprised of:
346,351 shares carried over from the
2003 Plan to the 2008 Equity Incentive Plan (as further described below);
and
3,153,649 additional
shares.
The
Registrant desires to carry over to this registration statement an aggregate
of
346,351 shares
registered pursuant to the 2003 Registration Statement, as defined in Note 1
above, and for which a registration fee has previously been paid.
The
346,351 shares carried over from the 2003 Registration Statements are no longer
available for new awards under the 2003 Plan, which plan was terminated as to
future grants on the date of the 2008 Annual Meeting of
Stockholders.
Consequently,
in accordance with applicable SEC rules, (1) the Registrant is carrying over
from the 2003 Registration Statement and registering the offer and sale of
346,351 shares of common stock under the 2008 Equity Incentive Plan pursuant to
this registration statement; (2) $1,184.68 of the total registration fee for the
shares being registered under the 2008 Equity Incentive Plan pursuant to this
registration statement is being carried over from the 2003 Registration
Statement; and (3) the 2003 Registration Statement is being amended on a
post-effective basis to reflect the transfer of an aggregate of 346,351 shares
to this registration statement.
Item
3.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The Registrant hereby incorporates by
reference the following documents which have previously been filed with the
Commission (File No. 001-06615) under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”):
(a) Annual
Report on Form 10-K for the fiscal year ended December 31, 2007, including all
material incorporated by reference therein;
(b) All
other reports filed by the Registrant pursuant to sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report
referred to in (a) above; and
(c) The
description of the classes of securities offered hereby which is contained in a
Registration Statement on Form 8-B dated June 15, 1994, setting forth a
description of the Registrant’s common stock, filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
descriptions.
All other
documents filed (not furnished) by the Registrant pursuant to Section 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
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 in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Any
statement made 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 is also incorporated or 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.
Not applicable.
Item
5
. INTERESTS
OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item
6.
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
Section 317 of the California General
Corporate Law (the “CGCL”) grants each corporation incorporated thereunder, such
as the Registrant, the power to indemnify its directors and officers against
liabilities for certain of their acts. Section 309(c) of the CGCL permits a
provision in the articles of incorporation eliminating or limiting, with certain
exceptions, the personal liability of a director to the corporation or its
shareholders for monetary damages for breach of fiduciary duty as a
director. The Registrant’s Restated Articles of Incorporation contain
provisions eliminating the liability of the directors for monetary damages to
the fullest extent permissible under California law.
The
Registrant’s Restated Bylaws provide that each person who is or was a director
or officer of the Registrant shall be indemnified by the Registrant to the
fullest extent authorized by the CGCL. Further, the Registrant has entered
into an Indemnification Agreement with each of its directors and
executive officers. These agreements provide for indemnification of such
individuals in cases where indemnification under the Registrant’s Restated
Articles of Incorporation or Bylaws might not otherwise be
available.
The
Registrant has a policy of directors and officers liability insurance which
insures directors or officers against the cost of defense, settlement or payment
of claims and judgments under certain circumstances.
Item
7.
EXEMPTION
FROM REGISTRATION CLAIMED
Not Applicable.
Exhibit
Number
Description
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5.1
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Opinion
of Counsel of Superior Industries International,
Inc.
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10.1
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Superior
Industries International, Inc. 2008 Equity Incentive Plan (incorporated
herein by this reference as Exhibit A to the Form DEF 14A filed with the
SEC on April 28, 2008)
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10.2
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Form
of Stock Option Agreement Pursuant to
Plan
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23.1
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Consent
of PricewaterhouseCoopers LLP
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23.2
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Consent
of Counsel (included in Exhibit
5.1)
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24.1
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A
power of attorney is set forth on the signature page of the Registration
Statement
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(a) The
Registrant hereby undertakes:
(1) To
file, during any period in which offers 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, as amended (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. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no greater than a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective 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) herein do not apply if 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 purposes 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 bonafide offering thereof;
and
(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
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 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 the 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, therefor,
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 final adjudication of such issue.
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements of filing of 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 Van Nuys, State of California on November 10,
2008.
SUPERIOR INDUSTRIES
INTERNATIONAL, INC.
By:
/s/ Steven J.
Borick
Steven J. Borick
Chairman, Chief
Executive Officer and President
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Mr. Robert A. Earnest and Mr. Steven J. Borick, 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 or all amendments to this Registration
Statement, and to file the same with all exhibits thereto, and all other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent 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 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 of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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/s/
Louis L. Borick
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Founding
Chairman and Director
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November
3, 2008
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Louis
L. Borick
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Chairman,
Chief Executive Officer and President
(Principal
Executive Officer)
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November
3, 2008
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/s/
Steven J. Borick
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Steven
J. Borick
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Chief
Financial Officer
(Principal
Financial Officer)
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November
10, 2008
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/s/
Erika H. Turner
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Erika
H. Turner
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Vice
President and Corporate Controller
(Principal
Accounting Officer)
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November
10, 2008
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/s/
Emil J. Fanelli
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Emil
J. Fanelli
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Lead
Director
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November
4, 2008
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/s/
Sheldon I. Ausman
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Sheldon
I. Ausman
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Director
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November
6, 2008
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/s/
Phillip W. Colburn
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Philip
W. Colburn
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Director
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November
6, 2008
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/s/
Margaret S. Dano
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Margaret
S. Dano
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Director
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November
4, 2008
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/s/
V. Bond Evans
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V.
Bond Evans
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Director
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November
4, 2008
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/s/
Michael J. Joyce
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Michael
J. Joyce
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Director
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November
6, 2008
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/s/
Francisco S. Uranga
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Francisco
S. Uranga
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Exhibit
Number
Description
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5.1
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Opinion
of Counsel of Superior Industries International,
Inc.
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10.1
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Superior
Industries International, Inc. 2008 Equity Incentive Plan (incorporated
herein by this reference as Exhibit A to the Form DEF 14A filed with the
SEC on April 28, 2008)
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10.2
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Form
of Stock Option Agreement Pursuant to
Plan
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23.1
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Consent
of PricewaterhouseCoopers LLP
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23.2
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Consent
of Counsel (included in Exhibit
5.1)
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24.1
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A
power of attorney is set forth on the signature page of the Registration
Statement
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Exhibit
5.1
[Manatt,
Phelps & Phillips, LLP Letterhead]
November
10, 2008
Superior
Industries International, Inc.
7800
Woodley Avenue
Van Nuys,
CA 91406
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Re:
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Superior
Industries International, Inc. 2008 Equity Incentive Plan (the
“Plan”)
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Ladies
and Gentlemen:
At the
request of Superior Industries International, Inc. (the “Registrant”), we have
examined the Registration Statement on Form S-8 (the “Registration
Statement”) being filed by the Registrant with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended (the “Act”), of up to 3,500,000 shares of the Registrant’s common
stock, no par value (the “Shares”), that may be issued in the aggregate under
the Plan.
In
rendering this opinion, we have reviewed only such questions of law as we have
deemed necessary or appropriate for the purpose of rendering the opinions set
forth herein. For the purpose of rendering such opinions, we have
been furnished with and examined only the following documents:
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1.
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The
Restated Articles of Incorporation of the
Registrant.
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2.
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The
Bylaws of the Registrant, as
amended.
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3.
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The
Registration Statement.
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4.
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Records
of proceedings of the Board of Directors and stockholders of the
Registrant pertaining to the Plan.
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With
respect to all of the foregoing documents, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals
and the conformity to originals of all documents submitted to us as certified or
reproduced copies. We also have obtained from the officers of the
Registrant certificates as to such factual matters as we consider necessary for
the purpose of this opinion, and insofar as this opinion is based on such
matters of fact, we have relied on such certificates.
Based
upon the foregoing, we are of the opinion that the Shares, when issued, sold and
delivered in the manner and in accordance with the terms of the Plan and the
Registration Statement, will be validly issued, fully paid and
non-assessable.
This
opinion is issued to you solely for use in connection with the Registration
Statement and is not to be quoted or otherwise referred to in any financial
statements of the Registrant or in any related document, nor is it to be filed
with or furnished to any government agency or other person, without our prior
written consent.
This
opinion is limited to the current laws of the State of California, including
statutory provisions, the provision of the California constitution and present
judicial interpretations thereof and to facts as they presently
exist. In rendering this opinion, we have no obligation to revise or
supplement it should the current laws of the State of California be changed by
legislative action, judicial decision or otherwise.
We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement which is being filed on behalf of the Registrant in connection with
the registration of the aforementioned Shares under the Act. In
giving such consent, we do not hereby admit that we are in the category of
“persons” whose consent is required under Section 7 of the Act or the rules and
regulations of the Securities and Exchange Commission.
Very
truly yours,
/s/
Manatt, Phelps & Phillips, LLP
Manatt,
Phelps & Phillips, LLP
Exhibit
10.2
SUPERIOR
INDUSTRIES INTERNATIONAL, INC.
2008
EQUITY INCENTIVE PLAN
NOTICE
OF STOCK OPTION GRANT AND AGREEMENT
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Name:
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Option
Number:
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Address:
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Plan
Name:
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2008
Equity Incentive Plan
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Employee
ID:
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Effective
__________, 20__, (“Grant Date”), you have been granted non-qualified stock
option to purchase ___________( ________) shares of Superior Industries
International, Inc. common stock at an Exercise Price of $ ______ per share
pursuant to the Superior Industries International, Inc. 2008 Equity Incentive
Plan (the “Plan”). Except as otherwise defined herein, terms with
initial capital letters shall have the same meanings set forth in the
Plan. A copy of the Plan is attached to this Notice and Agreement or
was previously provided to you. The terms and conditions of the Plan
are incorporated herein by this reference.
[Example vesting schedule:
Subject to the terms and
conditions of the Plan, this
Option shall vest over a period of four (4)
years beginning on the Grant Date. On each anniversary of the Grant
Date during this four-year period, 25% of the shares that may be purchased under
this Option shall become vested and this Option shall be exercisable with
respect to the vested shares.
]
This Option shall
expire and shall no longer be exercisable ten (10) years from the Grant
Date.
By
accepting this grant and exercising any portion of the Option, you represent
that you: (i) agree to the terms and conditions of this Notice and Agreement and
the Plan; (ii) have reviewed the Plan and this Notice and Agreement in their
entirety, and have had an opportunity to obtain the advice of legal counsel
and/or your tax advisor with respect thereto; (iii) fully understand and accept
all provisions hereof; (iv) agree to accept as binding, conclusive, and final
all of the Administrator’s decisions regarding, and all interpretations of, the
Plan and this Notice and Agreement; and (v) agree to notify the Company upon any
change in your home address indicated above.
Please
return a signed copy of this Notice of Stock Option Grant and Agreement to
[insert contact name and address of
the Registrant]
, and retain a copy for your records.
Dated
:
For
SUPERIOR INDUSTRIES INTERNATIONAL, INC.
[Insert
Title]
AGREED
AND ACCEPTED:
Dated:
[Insert
Employee Name]