-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RsBQwtH2TCt31roeEnziOvl5BsPIoD26O5vK5aVhmLwWUQ8Ls5mClI4/C56L/Oj8 yKiR7QsFTEqTHs8HPvB/Yg== 0000045370-97-000007.txt : 19970515 0000045370-97-000007.hdr.sgml : 19970515 ACCESSION NUMBER: 0000045370-97-000007 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970514 EFFECTIVENESS DATE: 19970514 SROS: CSX SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: HANNA M A CO/DE CENTRAL INDEX KEY: 0000045370 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS PLASTIC PRODUCTS [3080] IRS NUMBER: 340232435 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-27129 FILM NUMBER: 97605597 BUSINESS ADDRESS: STREET 1: SUITE 36 5000 STREET 2: 200 PUBLIC SQUARE CITY: CLEVELAND STATE: OH ZIP: 44114-2304 BUSINESS PHONE: 2165894000 FORMER COMPANY: FORMER CONFORMED NAME: HANNA MINING CO DATE OF NAME CHANGE: 19850523 S-8 1 Registration No. 333-______ _________________________________________________________________ _________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ___________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ___________ M. A. HANNA COMPANY (Exact name of Registrant as specified in its charter) Delaware 34-0232435 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) ___________ Suite 36-5000, 200 Public Square, Cleveland, Ohio 44114-2304 (Address of principal executive office including zip code) __________ M. A. Hanna Company Voluntary Non-Qualified Deferred Compensation Plan (Full title of plan) ___________ John S. Pyke, Jr., Esq. Vice President, General Counsel and Secretary M. A. Hanna Company Suite 36-5000, 200 Public Square, Cleveland, OH 44114-2304 (216) 589-4000 (Name and address and telephone number including area code of agent for service) __________ CALCULATION OF REGISTRATION FEE Title of Amount of securities to Amount Price Per Maximum aggregate registration be registered(1) Registered(2)(3) share(4) Offering Price(4) fee (4) Common Stock Par Value $1.00 400,000 $21.8125 $8,725,000 $2,644 (1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933 (the "Securities Act"), this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the M.A. Hanna Company Voluntary Non-Qualified Deferred Compensation Plan (the "Plan"). (2) Maximum number of shares expected to be issued under the Plan prior to March 31, 2002. (3) Pursuant to Rule 416 under the Securities Act, additional shares of the Common Stock of the Company issued or which become issuable in order to prevent dilution resulting from any future stock split, stock dividend or similar transaction are also being registered hereunder. (4) Based upon the average of the high and low sales prices of the Common Stock in the consolidated reporting system on May 12, 1997; determined in accordance with Rule 457(c) solely for the purpose of determining the amount of the registration fee. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents and reports filed by M. A. Hanna Company (File No. 1-5222) (the "Company") with the Securities and Exchange Commission (the "Commission") are incorporated herein by reference: (a) Annual Report of the Company on Form 10-K for the fiscal year ended December 31, 1996; (b) Quarterly Report of the Company on Form 10-Q for the quarter ended March 31, 1997; (c) The description of the Company's Common Stock contained in the Registration Statement filed under Section 12 of the Securities Exchange Act of 1934, including any amendment or report filed for the purpose of updating such description; and (d) The description of the Company's Stock Purchase Rights contained in the Rights Agreement filed as Exhibit 2 to Form 8-K dated December 4, 1991, as amended. All documents filed after the date of the filing of this Registration Statement by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 herein by reference and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. John S. Pyke, Jr., whose legal opinion is filed as an exhibit to this registration statement is Vice President, General Counsel and Secretary of the Registrant and is the beneficial owner of approximately 51,127 shares of the Company's Common Stock. Item 6. Indemnification of Directors and Officers Subsection (b)(7) of Section 102 of the Delaware General Corporation Law (the "DGCL") empowers a corporation in its original certificate of incorporation or an amendment thereto validly approved by stockholders to eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision cannot eliminate or limit the liability of a director for (i) breach of the director's duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or knowing violation of law, (iii) payment of a dividend or approval of a stock repurchase which was illegal under Section 174 of the DGCL, or (iv) any transaction from which the director derived an improper personal benefit. Articles Thirteenth and Fourteenth of the Registrant's Certificate of Incorporation provide for limitation of liability of directors, and indemnification of directors, officers and others as follows: "THIRTEENTH: To the full extent permitted by the General Corporation Law of the State of Delaware or any other applicable laws as presently or hereafter in effect, no Director of the Corporation shall be personally liable to the Corporation or its stockholders for or with respect to any acts or omissions in the performance of his or her duties as a Director of the Corporation. No amendment to or repeal of this Article THIRTEENTH shall apply to or have any effect on the liability or alleged liability of any Director of the Corporation for or with respect to any acts or omissions of such Director occurring prior to such amendment." "FOURTEENTH: Each person who is or was or had agreed to become a Director or officer of the Corporation, or each such person who is or was serving or had agreed to serve at the request of the Board of Directors or an officer of the Corporation as an employee or agent of the Corporation or as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including the heirs, executors, administrators or estate of such person), shall be indemnified by the Corporation to the full extent permitted by the General Corporation Law of the State of Delaware or any other applicable laws as presently or hereafter in effect. Without limiting the generality or effect of the foregoing, the Corporation may enter into one or more agreements with any person which provide for indemnification greater or different than that provided in this Article. No amendment to or repeal of this Article FOURTEENTH shall apply to or have any effect on the right to indemnity permitted or authorized hereunder for or with respect to or have any effect on the right to indemnity permitted or authorized hereunder for or with respect to claims asserted before or after such amendment or repeal arising from acts or omissions occurring in whole or in part before the effective date of such amendment or repeal." Reference is made to Section 145 of the DGCL relating to the indemnification of directors and officers of a Delaware corporation. The Company has entered into Indemnification Agreements with all of the Company's directors (except Messr. Eyton) and all of the Company's executive officers (the "Indemnitees") to specify the extent to which Indemnitees may receive indemnification under circumstances in which indemnity would not otherwise be provided by the DGCL. Pursuant to the Indemnification Agreements, an Indemnitee will be entitled to indemnification as provided by Section 145 of the DGCL and to indemnification for any amount which the Indemnitee is or becomes legally obligated to pay relating to or arising out of any claim made against such person because of any act, failure to act or neglect or breach of duty, including any actual or alleged error, misstatement or misleading statement, which such person commits, suffers, permits or acquiesces in while acting in the Indemnitee's position with the Company. The Indemnification Agreements provide specific procedures for securing indemnification and the Company is required to make payments in connection with any claim against the Indemnitee only to the extent expressly provided by law. The Company has purchased directors and officers liability insurance that provides for indemnification of directors and officers against certain liabilities. Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits 4.1 Registrant's Certificate of Incorporation, as amended and restated as of May 1, 1996, and currently in effect (filed as Exhibit 3(a) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996, File No. 1-5222) incorporated herein by reference. 4.2 By-laws of the Company (filed as Exhibit 3(d) to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1987, File No. 1-5222) incorporated herein by reference. 4.3 Rights Agreement dated December 4, 1991 between the Company and Ameritrust Company National Association (filed as Exhibit 2 to Form 8-K of M. A. Hanna Company on December 5, 1991, as amended and as Exhibit 8 to Form 8 of the Company filed on December 24, 1991) incorporated herein by reference. 5 Opinion of Counsel 23.1 Consent of Ernst & Young LLP 23.2 Consent of Price Waterhouse LLP 23.3 Consent of Counsel (included in Exhibit 5) 24 Powers of Attorney 99 M. A. Hanna Company Voluntary Non-Qualified Deferred Compensation Plan (filed as Exhibit A to the Registrant's definitive proxy statement dated March 20, 1995 filed pursuant to Regulation 14A, file No. 1-5222) incorporated herein by reference. 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 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)(1)(i) and (A)(1)(ii) do not apply if the registration statement is on Form S-3 or on Form S-8, and 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 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 (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 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 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 Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all 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 Cleveland, State of Ohio on this 14th day of May, 1997. M. A. HANNA COMPANY By: /s/John S. Pyke, Jr. John S. Pyke, Jr. Vice President, General Counsel and Secretary Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated as of the dates indicated. Signatures Titles Date /s/ D.J. McGregor* President and Chief May 13, 1997 D.J. McGregor Executive Officer (principal executive officer) and Director /s/ M.S. Duffey Vice President and May 13, 1997 M.S. Duffey Chief Financial Officer (principal financial officer) /s/ T.E. Lindsey Controller May 13, 1997 T.E. Lindsey (principal accounting officer) /s/ B.C. Ames* Director May 13, 1997 B.C. Ames /s/ C.A. Cartwright* Director May 13, 1997 C.A. Cartwright /s/ G.D. Harnett* Director May 13, 1997 G.D. Harnett /s/ W.R. Embry* Director May 13, 1997 W.R. Embry /s/ J.T. Eyton* Director May 13,1997 J.T. Eyton /s/ G.D. Kirkham* Director May 13, 1997 G. D. Kirkham /s/ M.L. Mann* Director May 13, 1997 M.L. Mann /s/ R.W. Pogue* Director May 13, 1997 R. W. Pogue /s/ M.D. Walker* Director May 13, 1997 M. D. Walker * John S. Pyke, Jr., the undersigned attorney-in-fact, by signing his name below, does hereby sign this registration statement on behalf of the directors and officers of M. A. Hanna Company indicated above by asterisk (constituting a majority of the directors) pursuant to a power of attorney executed by such persons and filed with the Securities and Exchange Commission contemporaneously herewith. By: /s/John S. Pyke, Jr. John S. Pyke, Jr., as attorney-in-fact Pursuant to the requirements of the Securities Act of 1933, the administrators of the Plan have duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cleveland, State of Ohio, on May 14, 1997. M.A. HANNA COMPANY VOLUNTARY NON- QUALIFIED DEFERRED COMPENSATION PLAN By: Committee for Employee Benefits Administration By: /s/ Lani L. Beach Lani L. Beach By: /s/ Thomas W. Boothe Thomas W. Boothe By: /s/ Michael S. Duffey Michael S. Duffey By: Douglas R. Schrank By: /s/ John S. Pyke, Jr. John S. Pyke, Jr. EXHIBIT INDEX Exhibit Exhibit Number 4.1 Registrant's Certificate of Incorporation, as amended and restated as of May 1, 1996, and currently in effect (filed as Exhibit 3(a) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996, File No. 1-5222) incorporated herein by reference. 4.2 By-laws of the Company (filed as Exhibit 3(d) to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1987, File No. 1-5222) incorporated herein by reference. 4.3 Rights Agreement dated December 4, 1991 between the Company and Ameritrust Company National Association (filed as Exhibit 2 to Form 8-K of M. A. Hanna Company on December 5, 1991, as amended and as Exhibit 8 to Form 8 of the Company filed on December 24, 1991) incorporated herein by reference. 5 Opinion of Counsel 23.1 Consent of Ernst & Young LLP 23.2 Consent of Price Waterhouse LLP 23.3 Consent of Counsel (included in Exhibit 5) 24 Powers of Attorney 99 M. A. Hanna Company Voluntary Non-Qualified Deferred Compensation Plan. (filed as Exhibit A to the Registrant's definitive proxy statement dated March 20, 1995 filed pursuant to Regulation 14A, file No. 1-5222) incorporated herein by reference. EX-5 2 EXHIBIT 5 May 14, 1997 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 RE: M. A. Hanna Company Voluntary Non-Qualified Deferred Compensation Plan Form S-8 Registration Statement Ladies and Gentlemen: As Vice President, General Counsel and Secretary of M.A. Hanna Company, a Delaware corporation (the "Company"), I am familiar with the proceedings taken, and proposed to be taken, in connection with the Voluntary Non-Qualified Deferred Compensation Plan (the "Plan"). I have examined such documents, records and matters of law as I have deemed necessary for the purposes of this opinion. Based on the foregoing, I am of the opinion that (1) shares of common stock, par value $1 each, of the Company which may be issued or transferred and delivered pursuant to the Plan will be, when so issued or transferred and delivered in accordance with the Plan, duly authorized, validly issued, fully paid and nonassessable and (2) the plan interests issuable pursuant to the Plan, when issued upon receipt of the consideration provided for under the Plan and in the manner contemplated by the Plan, will be validly issued, fully paid, and nonassessable. I hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement on Form S-8 filed by the Company to effect the registration under the Securities Act of 1933 of the shares of common stock of the Company subject to the Plan and the plan interests issuable pursuant to the Plan. Very truly yours, /s/John S. Pyke, Jr. Vice President, General Counsel and Secretary EX-23 3 EXHIBIT 23 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the M. A. Hanna Company Voluntary Non-Qualified Deferred Compensation Plan of our report dated January 31, 1995, with respect to the consolidated financial statements and schedule of M. A. Hanna Company and subsidiaries for the year ended December 31, 1994, incorporated by reference in its Annual Report (Form 10-K) for the year ended December 31, 1996, filed with the Securities and Exchange Commission. /s/Ernst & Young LLP Ernst & Young LLP Cleveland, Ohio May 13, 1997 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 (Non-Qualified Deferred Compensation Plan) of M.A. Hanna Company of our report dated January 29, 1997 appearing on page 38 of the Annual Report to Stockholders which is incorporated in this Annual Report on Form 10-K. We also consent to the incorporation by reference of our report on the Financial Statement Schedule, which appears on page F-2 of this Form 10-K. /s/Price Waterhouse LLP Price Waterhouse LLP Cleveland, Ohio May 9, 1997 EX-24 4 EXHIBIT 24 M. A. HANNA COMPANY Power of Attorney KNOW ALL MEN BY THESE PRESENTS: That each person whose signature appears below has made, constituted and appointed, and by this instrument does make, constitute and appoint John S. Pyke, Jr. and Valerie A. Gentile, and each of them, or her true and lawful attorney, with full power of substitution and resubstitution, to affix for him or and in his or her name, place and stead, as attorney-in-fact, his or her signature as director (including as a member of any committee of the board of directors) or officer, or both, of M.A. Hanna Company, a Delaware corporation (the "Company"), to Registration Statements on Form S- 8 or any other form that may be used from time to time, with respect to the issuance and sale of its Common Stock and other securities pursuant to (a) the M.A. Hanna Company Voluntary Non- Qualified Deferred Compensation Plan and (b) the M.A. Hanna Directors Retirement Plan and to any and all amendments, post- effective amendments and exhibits to such Registration Statements, and to any and all applications and other documents pertaining thereto, giving and granting to each such attorney-in- fact full power and authority to do and perform every act and thing whatsoever necessary to be done in the premises, as fully as they might or could do if personally present, and hereby ratifying and confirming all that each of such attorney-in-fact or any such substitute shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, this Power of Attorney has been signed this 7th day of May, 1997. /s/ D. J. McGregor /s/ M. S. Duffey D. J. McGregor M. S. Duffey /s/ T. E. Lindsey /s/ B. C. Ames T. E. Lindsey B. C. Ames /s/ C. A. Cartwright /s/ G. D. Harnett C. A. Cartwright G. D. Harnett /s/ J. T. Eyton /s/ W. R. Embry J. T. Eyton W. R. Embry /s/ M. L. Mann /s/ G. D. Kirkham M. L. Mann G. D. Kirkham /s/ M. D. Walker /s/ R. W. Pogue M. D. Walker R. W. Pogue -----END PRIVACY-ENHANCED MESSAGE-----