S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on September 15, 1998
As filed with the Securities and Exchange Commission on September 15, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SUNSOURCE INC.
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(Exact name of registrant as specified in its charter)
Delaware 23-2874736
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3000 One Logan Square
Philadelphia, Pennsylvania 19103
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(Address of Principal Executive Offices) (Zip Code)
SunSource Inc. Deferred Compensation Plan for Key Employees
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(Full title of the plan)
Joseph M. Corvino
Vice President - Finance, Chief Financial Officer,
Treasurer and Secretary
SunSource Inc.
3000 One Logan Square
Philadelphia, Pennsylvania 19103
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(Name and address of agent for service)
(215) 282-1290
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(Telephone number, including area code, of agent for service)
Copies to:
Donald A. Scott, Esquire
Morgan, Lewis & Bockius LLP
2000 One Logan Square
Philadelphia, Pennsylvania 19103-6993
(215) 963-5000
CALCULATION OF REGISTRATION FEE
(1) The Deferred Compensation Obligations are unsecured obligations of
SunSource Inc. to pay deferred compensation in the future in accordance
with the terms of the SunSource Inc. Deferred Compensation Plan for Key
Employees.
(2) Estimated solely for the purpose of determining the registration fee.
PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference.
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The following documents filed by SunSource Inc. (the "Registrant" or
the "Company") with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934 are incorporated in this registration
statement by reference:
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997.
2. The Registrant's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1998 and June 30, 1998.
All documents filed by the Registrant pursuant to Section 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this registration
statement and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby 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 contained in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained herein
(or in any other subsequently filed document which also is incorporated by
reference herein) modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed to constitute a part hereof except
as so modified or superseded.
Item 4. Description of Securities.
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Under the SunSource Inc. Deferred Compensation Plan for Key
Employees (the "Plan"), the Company will provide eligible employees the
opportunity to enter into agreements for the deferral of all or a portion of
their future base salary and all or a portion of their future bonus payments.
In addition, pursuant to the terms of the Plan, the Company will provide
supplemental benefits under the Plan to make up for any loss of benefits by a
participating employee under the tax-qualified retirement plans of the Company
and its affiliates as a result such participant's deferral of compensation
under the Plan. The obligations of the Company under the Plan (the
"Obligations") will be unsecured general obligations of the Company to pay
deferred compensation in the future in accordance with the terms of the Plan,
and will rank pari passu with other unsecured and unsubordinated indebtedness
of the Company from time to time outstanding. The Company has established an
irrevocable grantor trust, commonly referred to as a "rabbi trust," for
purposes of funding the Obligations. The trust assets are treated as assets of
the Company for tax purposes and are subject to the claims of the Company's
creditors in the event of insolvency.
The amount of compensation to be deferred by each participating
employee will be determined in accordance with the Plan based on elections by
the employee. Each Obligation will be payable during employment or upon or
following termination of employment or retirement in accordance with the terms
of the Plan. The Obligations will be indexed to one or more options
individually chosen by each employee participant from the list of investments
available from time to time (the "Earnings Crediting Options"). Each employee
participant's Obligation will be adjusted to reflect the investment experience
of the selected Earnings Crediting Options, including any appreciation or
depreciation. The Obligations will be denominated and payable in United States
dollars.
An employee participant's right or the right of any other person to
the Obligations cannot be assigned, alienated, sold, garnished, transferred,
pledged, or encumbered except by a written designation of a beneficiary under
the Plan, by the terms of the Plan in the event there is no designated
beneficiary or by court order in the case of marital dispute.
The Obligations are not subject to redemption, in whole or in part,
at the option of the Company prior to termination of employment, retirement or
the individual payment dates specified by the participating employees. Each
employee participant may elect to receive a distribution under the Plan in
such manner as is acceptable to the committee appointed by the Board of
Directors of the Company to administer the Plan (the "Committee"). In
addition, the Committee may, in its discretion, direct that a participant be
paid an amount (not to exceed his Obligation) sufficient to meet a financial
hardship as defined in the Plan. The Company reserves the right to amend or
terminate the Plan at any time, except that no such amendment or termination
shall reduce the amount of previous deferrals.
The Obligations are not convertible into another security of the
Company. The obligations will not have the benefit of a negative pledge or any
other affirmative or negative covenant on the part of the Company. No trustee
has been appointed having the authority to take action with respect to the
Obligations and each employee participant will be responsible for acting
independently with respect to, among other things, the giving of notices,
responding to any requests for consents, waivers or amendments pertaining to
the Obligations, enforcing covenants and taking action upon a default.
Item 5. Interests of Named Experts and Counsel.
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Donald A. Scott, a partner in Morgan, Lewis & Bockius LLP which is
passing upon the validity of the Deferred Compensation Obligations, is a
director of the Registrant and beneficially owns 2,462 Common Shares.
Item 6. Indemnification of Directors and Officers.
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The Company's By-laws contain provisions permitted by the Delaware
General Corporation Law (under which the Company is organized) that provide
that directors and officers will be indemnified by the Company to the fullest
extent permitted by law for all losses that may be incurred by them in
connection with any action, suit or proceeding in which they may become
involved by reason of their service as a director or officer of the Company.
In addition, the Company's Certificate of Incorporation contains provisions
permitted by the Delaware General Corporation Law that limit the monetary
liability of directors of the Company for certain breaches of their fiduciary
duty, and its By-laws provide for the advancement by the Company to directors
and officers of expenses incurred by them in connection with a proceeding of a
type to which the duty of indemnification applies. The Company maintains
directors' and officers' liability insurance to insure its directors and
officers against certain liabilities incurred in their capacity as such,
including claims based on breaches of duty, negligence, error and other
wrongful acts. Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers,
or persons controlling the Company pursuant to the foregoing provisions, the
Company has been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in that
Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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The following Exhibits are filed as part of this Registration
Statement:
4 SunSource Inc. Deferred Compensation Plan for Key Employees
5 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Morgan, Lewis & Bockius LLP (contained in Exhibit 5).
24 Power of Attorney (contained on signature page of this
Registration Statement).
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(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)(l)(i) and (a)(1)(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 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. To remove 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 undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the 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 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 Act
and will be governed by the final adjudication of such issue.
SIGNATURES AND POWER OF ATTORNEY
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 Philadelphia, Pennsylvania on September 15,
1998.
SUNSOURCE INC.
By: /s/ Joseph M. Corvino
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Joseph M. Corvino
Vice President - Finance
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joseph M. Corvino and John J.
Dabrowski, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead,
in any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents 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
attorneys-in-fact and agents, or their substitute or substitutes, 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 below by the following persons in the
capacities and on the dates indicated.
SUNSOURCE INC.
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
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Exhibit No.
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4 SunSource Inc. Deferred Compensation Plan for Key Employees
5 Opinion of Morgan, Lewis & Bockius LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Morgan, Lewis & Bockius LLP (contained in Exhibit 5)
24 Power of Attorney (contained on signature page of this Registration
Statement)