As filed with the Securities and Exchange Commission on July 20, 1999
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUN HYDRAULICS CORPORATION
(Exact Name of Issuer as Specified in its Charter)
FLORIDA 59-2754337
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1500 WEST UNIVERSITY PARKWAY
SARASOTA, FL 34243
(Address of principal executive offices)
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SUN HYDRAULICS CORPORATION
1999 EMPLOYEE STOCK AWARD PLAN
(Full Title of Plan)
CLYDE G. NIXON
PRESIDENT AND CEO
SUN HYDRAULICS CORPORATION
1500 WEST UNIVERSITY PARKWAY
SARASOTA, FL 34243
(941) 362-1200
(Name, Address and Telephone Number of Agent for Service)
Copy to:
GREGORY C. YADLEY, ESQUIRE
SHUMAKER, LOOP & KENDRICK, LLP
101 EAST KENNEDY BLVD., SUITE 2800
TAMPA, FL 33602
(813) 229-7600
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT TO PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT
TO BE REGISTERED BE REGISTERED (1) PRICE PER SHARE (2) AGGREGATE REGISTRATION FEE
OFFERING PRICE (2)
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Shares of Common 3,000 shares $8.75 $26,250 $8.00
Stock, par value
$.001 per share
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(1) A maximum of 3,000 shares may be issued under the 1999 Employee Stock Award Plan. Such shares may be in whole or in part, as the Board of Directors of the Registrant shall determine, from authorized but unissued shares of Common Stock or issued shares of Common Stock which shall have been reacquired by the Registrant.
(2) Estimated solely for the purpose of calculating the registration fee. Pursuant to Rule 457(h), the fee is calculated on the basis of the average of the high and low prices for the Registrant's Common Stock reported in The Nasdaq Stock Market on July 16, 1999.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the registrant (Exchange Act File No. 0-21835) with the Securities and Exchange Commission are incorporated herein by reference and made a part hereof:
(a) The Registrant's most recent annual report on Form 10-K, or, if the financial statements therein are more current, the Registrant's most recent prospectus, other than the prospectus of which this document is a part, filed pursuant to rule 424(b) of the Commission under the Securities Act of 1933.
(b) All other reports filed by the Registrant pursuant to sections 13(a) or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year covered by the annual report or the prospectus referred to in (a) above.
(c) The description of the Registrant's Common Stock which is
contained in the Registrant's registration statement filed under
Section 12 of the Securities Exchange Act of 1934, including any
amendment or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act after the date of this Registration Statement, but prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered by this Registration Statement have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement. Each document incorporated by reference into this Registration Statement shall be deemed to be a part of this Registration Statement from the date of the filing of such document with the Commission until the information contained therein is superseded or updated by any subsequently filed document which is incorporated by reference into this Registration Statement or by any document which constitutes part of the prospectus relating to the Sun Hydraulics Corporation 1999 Employee Stock Award Plan (the "Plan") which is used to satisfy the requirements of Section 10(a) of the Securities Act of 1933 and Rule 428 promulgated thereunder.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As authorized by the Florida Business Corporation Law ("FBCL"), the registrant's Articles of Incorporation ("the Articles") limits the liability of Directors of the registrant for monetary damages. The effect of this provision in the Articles is to eliminate the rights of the registrant and its shareholders (through shareholders' derivative suits on behalf of the registrant) to recover monetary damages against a Director for breach of the fiduciary duty of care as a Director (including breaches resulting from negligent behavior) except in certain limited situations. This provision does not limit or eliminate the rights of the registrant or any stockholder to seek non-monetary relief such as an injunction or rescission in the event of a breach of a Director's duty of care. These provisions will not alter the liability of Directors under federal securities laws.
The Articles provides that the registrant shall indemnify its Directors, officers, employees and agents to the maximum extent and under all circumstances permitted by the FBCL. The registrant believes that these provisions will assist the registrant in attracting and retaining qualified individuals to serve as Directors and officers.
In addition, the registrant has entered into Indemnity Agreements with its Directors and executive officers providing for indemnification to the fullest extent permitted by law. The Indemnity Agreements also establish the presumption that the Director or executive officer has met the applicable standard of conduct required for indemnification. The agreements provide for litigation expenses to be advanced to a Director or executive officer at his or her request provided that he or she undertakes to repay the amount advanced if it is ultimately determined that he or she is not entitled to indemnification for such expenses. The Indemnity Agreements' indemnification provisions applicable to a derivative suit provide for indemnification for amounts paid in settlement and partial indemnification in the event that a Director or executive officer is not entitled to full indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT INDEX
Exhibit No. Description
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4 Sun Hydraulics Corporation 1999 Employee Stock Award Plan
5 Opinion of Shumaker, Loop & Kendrick, LLP as to the legality of
the securities being registered
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23.1 Consent of Shumaker, Loop & Kendrick, LLP (included in their
opinion filed as Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP, independent certified
public accountants
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ITEM 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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, represent a fundamental change in the information set forth in the registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do 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 (the "Exchange Act") that are incorporated by reference in the registration statement.
(b) That, for 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 bona fide offering thereof.
(c) To remove from registration by means of post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
2. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 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
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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.
3. The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information.
4. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against 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 such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Sarasota, State of Florida, on this 16th day of July, 1999.
SUN HYDRAULICS CORPORATION
By: /s/ Clyde G. Nixon
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Clyde G. Nixon,
President and CEO
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POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Clyde G. Nixon his true and lawful attorney-in-fact and agent, 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 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, 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 may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated on this 16th day of July, 1999.
SIGNATURE TITLE
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/s/ Robert E. Koski
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Robert E. Koski Chairman of the Board of Directors
/s/ Clyde G. Nixon
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Clyde G. Nixon President, Chief Executive Officer
and Director
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/s/ Richard J. Dobbyn
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Richard J. Dobbyn Chief Financial Officer (Principal
Financial and Accounting Officer)
/s/ John S. Kahler
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John S. Kahler Director
/s/ James G. March
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James G. March Director
/s/ Ferdinand E. Megerlin
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Ferdinand E. Megerlin Director
/s/ Taco van Tijn
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Taco van Tijn Director
/s/ David N. Wormley
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David N. Wormley Director
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EXHIBIT INDEX
The following exhibits are filed herewith as part of this Registration Statement:
Exhibit No. Description
----------- -----------
4 Sun Hydraulics Corporation 1999 Employee Stock Award Plan
5 Opinion of Shumaker, Loop & Kendrick, LLP as to the legality of
the securities being registered
23.1 Consent of Shumaker, Loop & Kendrick, LLP (included in their
opinion filed as Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP, independent certified
public accountants
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EXHIBIT 4
SUN HYDRAULICS CORPORATION
1999 EMPLOYEE STOCK AWARD PLAN
SUN HYDRAULICS CORPORATION, a Florida corporation (the "Company"), hereby adopts the Sun Hydraulics Corporation 1999 Stock Award Plan (the "Plan"). The terms and conditions of the Plan are as follows:
Section 1. Purpose of the Plan. The general purpose of the Plan is to recognize and acknowledge extraordinary contributions of employees through the grant of shares of Common Stock. The Board believes that the Plan will secure for the Company and its shareholders the benefits of the incentive inherent in increased ownership of Common Stock of the Company by employees of the Company. It is expected that such ownership will provide employee recipients under the Plan with a more direct stake in the future welfare of the Company and encourage them to continue to demonstrate leadership and commitment to the Company.
Section 2. Certain Definitions. In addition to the words and terms elsewhere defined in this Plan, certain capitalized words and terms used in this Plan shall have the meanings given to them by the definitions and descriptions in this Section 2. Unless the context or use indicates another or different meaning or intent, such definition shall be equally applicable to both the singular and plural forms of any of the capitalized words and terms herein defined. The following words and terms are defined terms under this Plan:
2.1 Award means the grant of Common Stock under this Plan.
2.2 Board means the Board of Directors of the Company.
2.3 Code means the Internal Revenue Code of 1986, as amended from time to time, or any successor statute thereto.
2.4 Common Stock means the Common Stock, par value $.001 per share, of the Company.
2.5 Employee means an individual who is an employee of
either the Company, or a "subsidiary corporation" (as defined in
Section 424(f) of the Code) of the Company (a "Subsidiary Corporation")
and who is not an executive officer of the Company.
2.6 Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, or any successor statute or statutes thereto.
2.7 President means the President of the Company, as appointed from time to time by the Board.
Section 3. Administration of Plan. The Board shall have full
authority to supervise and interpret this Plan including, but not limited to,
the authority to make, amend and rescind rules and regulations relating to the
Plan. Subject to the provisions of this Plan, the President shall have
authority to (i) determine the Employees to whom Awards shall be granted and
(ii) determine the number of shares of Common Stock to be the subject of each
Award. The determination of the President shall be made in accordance with his
judgment as to the best interests of the Company and its shareholders and in
accordance with the purposes of the Plan. The President's determination in all
cases arising under the Plan shall be final, conclusive and binding unless
otherwise determined by the Board.
Section 4. Common Stock Subject to the Plan. Subject to adjustment as provided in Section 13 of this Plan, the aggregate number of shares of Common Stock that shall be reserved and that may be issued from time to time pursuant to Awards granted under this Plan is 3,000 shares of Common Stock. Such shares of Common Stock may consist of (i) treasury shares, (ii) authorized but unissued shares, or (iii) both.
Section 5. Eligibility. The President may grant Awards under this Plan to any Employee.
Section 6. Limits on Awards. In granting Awards and determining which Employees shall be granted Awards and the amount of Common Stock comprised by each such Award, the President may give consideration to the functions and responsibilities of the individual, his or her potential contributions to profitability and sound growth of the Company and such other factors as the President may, in his discretion, deem relevant. The maximum number of shares of Common Stock with respect to which Awards may be granted to any Employee during any one calendar year is 500 shares.
Section 7. Tax Withholding. The Company shall have the right to require recipients of Awards to remit to the Company (or to the Subsidiary Corporation which employs them) an amount sufficient to satisfy any federal, state and local withholding tax requirements prior to the delivery of any shares of Common Stock acquired as an Award.
Amounts to which the Company is entitled pursuant to the preceding paragraph may, at the election of the Employee and with the approval of the President, either (i) be paid in cash, (ii) be withheld from the Employee's salary or other compensation payable by the Company, or (iii) be withheld in the form of some of the shares of Common Stock otherwise issuable to the Employee upon exercise of the Awards that have a fair market value not less than the minimum amount of tax the Company is required to withhold.
Section 8. Amendment of Plan. To the extent permitted by law, the Board may at any time and from time to time modify or amend the Plan in such respects as it shall deem advisable.
Section 9. Term of Plan. No Awards shall be granted under this Plan at any time after the fifth (5th) anniversary of the date this Plan is first adopted by the Board.
Section 10. Termination of Plan. Notwithstanding anything contained in this Plan to the contrary, the Board may at any time terminate or discontinue this Plan.
Section 11. Governmental Regulations. This Plan and the granting and receipt of any Award and the obligations of the Company to sell and deliver shares of Common Stock under any such Award shall be subject to all applicable laws, rules and regulations, and to such approvals by any governmental agencies as may be required.
Section 12. Compliance with Securities Laws. Awards granted and shares of the Common Stock issued by Company shall be granted and issued only in full compliance with all applicable securities laws including, but not limited to, the Securities Act of 1933, as amended, and the general rules and regulations promulgated thereunder by the United States Securities and Exchange Commission and applicable state blue sky laws. In connection with such compliance, the President may impose such conditions on transfer of the shares of the Common Stock comprising an Award and other restrictions, conditions and limitations as he may deem necessary and appropriate. The Company may, as a condition to the issuance of stock certificates representing the shares of Common Stock comprising an Award, also require the recipient of the Award to make such representations or undertakings in writing as it may determine are required to ensure that the shares are being issued in compliance with all applicable federal and state securities laws, and may endorse the stock certificates representing the shares with one or more legends referring to the restrictions on the transferability of such shares. The Company may, but shall not be obligated to, register or qualify the issuance of the shares to the recipient under federal or any applicable state securities law.
Section 13. Adjustments of Stock. In the event of any change or changes in the outstanding Common Stock of the Company by reason of any stock dividend, recapitalization, reorganization, merger, consolidation, split-up, combination or any similar transaction, the Board shall adjust the number of shares of Common Stock which may be issued under this Plan and make any and all other adjustments deemed appropriate by the Board in such manner as the Board deems appropriate.
Section 14. Effective Date of Plan. The Plan shall become effective on the date it is approved by the Board.
IN WITNESS WHEREOF, the undersigned, being the duly elected and authorized Secretary of the Company, hereby certifies that this Plan was legally and validly approved by the Board of Directors of the Company as of the 21st day of May, 1999.
SUN HYDRAULICS CORPORATION
By: /s/ Gregory C. Yadley
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Gregory C. Yadley, Secretary
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Exhibit 5
SHUMAKER, LOOP & KENDRICK, LLP
ATTORNEYS AT LAW
101 EAST KENNEDY BLVD.
TAMPA, FL 33602
TELEPHONE (813) 229-7600
TELEFAX (813) 229-1660
July 16, 1999
Sun Hydraulics Corporation
1500 West University Parkway
Sarasota, Florida 34243-2290
Re: SECURITIES AND EXCHANGE COMMISSION REGISTRATION STATEMENT ON
FORM S-8 COVERING 3,000 SHARES OF COMMON STOCK, $.001 PAR
VALUE
Gentlemen:
We are legal counsel to Sun Hydraulics Corporation, a Florida corporation (the "Company"), and have acted as such in the preparation and filing of its Registration Statement on Form S-8 with the Securities and Exchange Commission (the "SEC") pursuant to the requirements of the Securities Act of 1933, as amended, and the General Rules and Regulations of the SEC promulgated thereunder for the registration of 3,000 shares (the "Shares") of the common stock, par value $.001 per share, of the Company. In connection with the following opinion, we have examined and have relied upon such documents, records, certificates, statements and instruments as we have deemed necessary and appropriate to render the opinion herein set forth.
Based upon the foregoing, it is our opinion that the Shares, when and if sold in the manner set forth in the Registration Statement, will be legally issued, fully paid and nonassessable.
The undersigned hereby consents to the filing of this opinion as Exhibit 5 to the Registration Statement.
Very truly yours,
SHUMAKER, LOOP & KENDRICK, LLP
/s/ Gregory C. Yadley
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Gregory C. Yadley
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Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of our report dated March 5, 1999, relating to the financial statements, which appears in the 1998 Annual Report to Shareholders of Sun Hydraulics Corporation, which is incorporated by reference in Sun Hydraulics Corporation's Annual Report on Form 10-K for the year ended December 31, 1998. We also consent to the incorporation by reference of our report dated March 5, 1999 relating to the financial statement schedules, which appears in such Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP ------------------------------ PricewaterhouseCoopers LLP Tampa, Florida July 16, 1999 |