As filed with the Securities and Exchange Commission on September 25, 2018
Registration No. 333-166951
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________
POST-EFFECTIVE AMENDMENT NO. 1
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
____________________________
Sypris Solutions, INC.
(Exact name of registrant as specified in its charter)
|
Delaware |
61-1321992 |
|
|
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
101 Bullitt Lane, Suite 450
Louisville, Kentucky 40222
(502) 329-2000
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
____________________________
Sypris Solutions, Inc. 2015 Sypris Omnibus Plan
2010 Sypris Omnibus Plan
(Full title of the Plan)
____________________________
Jeffrey T. Gill
President and Chief Executive Officer
Sypris Solutions, Inc.
101 Bullitt Lane, Suite 450
Louisville, Kentucky 40222
(502) 329-2000
(Name, address and telephone number of agent for service)
____________________________
Copies to:
John B. Beckman
C. Alex Bahn
Hogan Lovells US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
____________________________
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
|
Large accelerated filer |
☐ |
|
Accelerated filer |
☐ |
|
Non-accelerated filer |
☐ |
|
(Do not check if a smaller reporting company) |
|
|
|
|
|
Smaller reporting company |
☒ |
|
|
|
|
Emerging growth company |
☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Exchange Act.
EXPLANATORY NOTE
On May 19, 2010, Sypris Solutions, Inc. (the “Company”) or (the “Registrant”) filed a registration statement on Form S-8 (Registration No. 333-166951) (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) to register 3,655,088 shares, par value $0.01 per share, of the Company’s common stock (“Common Stock”) available for issuance under the 2010 Sypris Omnibus Plan (the “2010 Plan”). The Registration Statement also covered an indeterminate number of shares of Common Stock as may have become issuable as a result of stock splits, stock dividends or similar transactions in accordance with anti-dilution provisions. The Company paid a registration fee of $1,230.07 at that time to register the securities.
On May 5, 2015 (the “Approval Date”), shareholders of the Company approved the 2015 Sypris Omnibus Plan (the “2015 Plan”). The number of shares of Common Stock for which awards may be granted under the 2015 Plan were (i) 3,000,000 shares of Common Stock, plus (ii) 476,021 shares of Common Stock that were previously approved by the Company’s shareholders for issuance under the 2010 Plan but had not been awarded under the 2010 Plan and (b) all shares of Common Stock which are subject to outstanding awards under the 2010 Plan that may become available for the grant of awards under the 2015 Plan (the “Carryover Shares”) (excluding, the use of shares to satisfy the tax withholding obligations or the payments of the purchase price of an award, settlement in cash in lieu of shares or otherwise).
Accordingly, pursuant to the undertaking in Item 512(a)(1)(iii) of Regulation S-K that the Company disclose a material change in the plan of distribution as it was originally disclosed in the Registration Statement, the Company is filing this Post-Effective Amendment No. 1 to the Registration Statement to reflect that, as of the Approval Date, the Carryover Shares may be issued under the 2015 Plan. This Post-Effective Amendment No. 1 to the Registration Statement amends and supplements the items listed below. All other items of the Registration Statement are incorporated herein by reference without change. No additional shares of Common Stock are being registered by this Post-Effective Amendment No. 1.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
As permitted by the rules of the Commission, this Registration Statement omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the plan as required by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not being filed with the Commission as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. The Registrant will provide a written statement to participants advising them of the availability without charge, upon written or oral request, of the documents incorporated by reference in Item 3 of Part II hereof. The written statement to participants will also indicate the availability without charge, upon written or oral request, of other documents required to be delivered pursuant to Rule 428(b) and will include the address and telephone number to which the request is to be directed.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company hereby incorporates by reference into this Registration Statement the following documents:
(a) The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the Commission March 20, 2018;
(b) The Company’s Current Reports on Form 8-K filed January 16, 2018 and May 3, 2018 (except that any portions which are furnished and not filed shall not be deemed incorporated);
(c) The Company’s Quarterly Report on Form 10-Q for the quarter ended April 1, 2018, filed with the Commission on May 15, 2018 and the Company’s Quarterly Report on Form 10-Q for the quarter ended July 1, 2018, filed with the Commission on August 14, 2018; and
(d) The description of the Company’s common stock, $0.01 par value (the “Common Stock”), which is contained in the Company’s current report on Form 8-K/A filed May 13, 1998, pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (Commission File No. 000-24020), including any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold, or which deregisters all securities 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 (other than any documents, or portions of documents, not deemed to be filed). Any statement contained herein or in a document all or a portion of which is 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 also is or is 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.
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 under certain circumstances a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation or is or was serving at its request in such capacity in another corporation or business association, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she 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 his or her conduct was unlawful.
Article Ninth of the Company’s Certificate of Incorporation provides:
“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) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is amended after the filing of the Certificate of Incorporation of which this Article is a part to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. Any repeal or modification of the foregoing paragraph by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.”
Article Eleventh, Section A of the Company’s Certificate of Incorporation provides:
“The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party, or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he, or a person for whom he is the legal representative, is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another Corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Corporation shall be required to indemnify a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors of the Corporation.
Article Eleventh, Section B of the Company’s Certificate of Incorporation provides:
“The Corporation shall pay the expenses of directors and executive officers of the Corporation, and may pay the expenses of all other officers, employees or agents of the Corporation, incurred in defending any proceeding, in advance of its final disposition, provided, however, that the payment of expenses incurred by a director, officer, employee or agent in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the director, officer, employee or agent to repay all amounts advanced if it should be ultimately determined that the director, officer, employee or agent is not entitled to be indemnified under this Article ELEVENTH or otherwise.”
Article Eleventh, Section F of the Company’s Certificate of Incorporation provides:
“Any repeal or modification of the foregoing provisions of this Article ELEVENTH shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.”
While the Company has executed no formal written indemnification agreements with its directors or officers, the Company has arranged for and does maintain directors’ and officers’ liability insurance covering certain liabilities which may be incurred by its directors and officers in the performance of their duties.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The exhibits to this Registration Statement are listed below:
|
Exhibit No. __________ |
|
Description __________ |
|
4.1 |
||
|
5.1 |
|
|
|
5.2 |
||
|
5.3 |
|
_______________________
* Filed herewith.
Item 9. Undertakings.
(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 this 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 more than a 20 percent 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) of this section do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 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 herein, 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 further undertakes that, for the 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 section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 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 herein, 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 Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
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 Louisville, State of Kentucky, on 25th day of September, 2018.
|
|
Sypris Solutions, Inc. |
|
|
|
|
|
|
|
|
|
By: |
/s/ Jeffrey T. Gill |
|
|
|
|
Jeffrey T. Gill |
|
|
|
|
President and Chief Executive Officer |
|
Each person whose signature appears below constitutes and appoints Jeffrey T. Gill, Anthony C. Allen and John R. McGeeney his or her true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to the Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and all 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 or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her 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 Post-Effective Amendment No. 1 to the Registration Statement has been signed as of 25th September, 2018 by the following persons in the capacities indicated.
|
Signature |
Title |
|
|
|
||
|
/s/ Jeffrey T. Gill |
President, Chief Executive Officer, and Director |
|
|
Jeffrey T. Gill |
(Principal Executive Officer) | |
|
/s/ Anthony C. Allen |
Vice President and Chief Financial Officer |
|
|
Anthony C. Allen |
(Principal Financial Officer) |
|
|
/s/ Rebecca R. Eckert |
Controller |
|
|
Rebecca R. Eckert |
(Principal Accounting Officer) | |
|
/s/ John F. Brinkley |
Director |
|
|
John F. Brinkley |
||
|
/s/ Gary L. Convis |
Director |
|
| Gary L. Convis |
|
/s/ William G. Ferko |
Director |
|
|
William G. Ferko |
||
|
/s/ R. Scott Gill |
Director |
|
|
R. Scott Gill |
||
|
/s/ William L. Healey |
Director |
|
|
William L. Healey |
||
|
/s/ Sidney R. Petersen |
Director |
|
|
Sidney R. Petersen |
||
|
/s/ Robert Sroka |
Director |
|
|
Robert Sroka |
Exhibit 5.3
September 25, 2018
Board of Directors
Sypris Solutions, Inc.
101 Bullitt Lane, Suite 450
Louisville, Kentucky 40222
Ladies and Gentlemen:
I am counsel to Sypris Solutions, Inc. (the “Company”) and I have reviewed the Post-Effective Amendment No. 1 (the “Amendment”) to the Company’s Registration Statement on Form S-8 filed with the Commission on May 19, 2010 (Registration No. 333-166951) (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”). The Registration Statement registered 3,655,088 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), reserved for issuance pursuant to the 2010 Sypris Omnibus Plan (the “2010 Plan”).
The Amendment reflects that, pursuant to the terms of the 2015 Sypris Omnibus Plan (the “2015 Plan”), the number of shares of Common Stock for which awards may be granted under the 2015 Plan includes shares underlying any awards under the 2010 that become available due to expiration, forfeiture, exchange or cancellation without having been fully exercised or vested (other than shares to satisfy the tax withholding obligations or the payment of the purchase price of an award under the 2010 Plan)(the “Carryover Shares”).
For purposes of this opinion letter, I have examined copies of such agreements, instruments and documents as I have deemed an appropriate basis on which to render the opinions hereinafter expressed. In my examination of the aforesaid documents, I have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to me, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to me as copies (including telecopies). As to all matters of fact, I have relied on the representations and statements of fact made in the documents so reviewed, and I have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the Delaware General Corporation Law, as amended. I express no opinion herein as to any other laws, statutes, ordinances, rules, or regulations.
Based upon the foregoing, I am of the opinion that the Carryover Shares, when issued pursuant to the terms and conditions set forth in the 2015 Plan, will be validly issued, fully paid and non-assessable.
I consent to the filing of this opinion as an exhibit to Amendment, and I further consent to the use of my name wherever appearing in the Amendment. In giving this consent, I do not admit that I am an “expert” within the meaning of the Act.
Very truly yours,
/s/ John R. McGeeney
John R. McGeeney
Vice President, General Counsel & Secretary
Exhibit 23.6
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 Post Effective Amendment No. 1 of Sypris Solutions, Inc. of our report dated March 20, 2018 relating to the financial statements, appearing in the Annual Report on Form 10-K of Sypris Solutions, Inc. for the year ended December 31, 2017.
|
|
/s/ Crowe LLP |
Louisville, Kentucky
September 25, 2018