-----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, P7VQqkVqezbEF/p/M8KmEos5G8ZTGv4Qg2bFtWglXl5nwxLfEoSVrAW/RwLxSump BOPLXFPXsvDafs8E11yorw== 0000205303-97-000007.txt : 19971205 0000205303-97-000007.hdr.sgml : 19971205 ACCESSION NUMBER: 0000205303-97-000007 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 1 REFERENCES 429: 333-83166-0D FILED AS OF DATE: 19971204 EFFECTIVENESS DATE: 19971204 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ENGINEERING MEASUREMENTS CO CENTRAL INDEX KEY: 0000205303 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL INSTRUMENTS FOR MEASUREMENT, DISPLAY, AND CONTROL [3823] IRS NUMBER: 840572936 STATE OF INCORPORATION: CO FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-41493 FILM NUMBER: 97732446 BUSINESS ADDRESS: STREET 1: 600 DIAGONAL HWY CITY: LONGMONT STATE: CO ZIP: 80501 BUSINESS PHONE: 3036510550 MAIL ADDRESS: STREET 1: 600 DIAGONAL HWY CITY: LONGMONT STATE: CO ZIP: 80501 S-8 1 1997 INCENTIVE PLAN As filed with the Securities and Exchange Commission on December 4, 1997 SEC Registration No. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ENGINEERING MEASUREMENTS COMPANY (Exact name of registrant as specified in its charter) Colorado 84-0572936 (State or other Juris- (IRS Employer diction of incorporation) Identification Number) 600 Diagonal Highway Longmont, CO 80501 (Address of Principal Executive Offices, including Zip Code) 1997 INCENTIVE PLAN (Full title of the plan) John Thompson Engineering Measurements Company P.O. Box 5000 600 Diagonal Highway Longmont, CO 80501 (303) 651-0550 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service) Copies to Laurie P. Glasscock, Esq. Chrisman, Bynum & Johnson, P.C. 1900 Fifteenth Street Boulder, CO 80302 (303) 546-1300 CALCULATION OF REGISTRATION FEE Proposed Proposed maximum Amount maximum aggregrate Amount of Title of securities to be offering price offering registration to be registered registered per share (1) price (1) fee ______________________________________________________________________________ Common Stock (No Par Value) 500,000 $5.25 $2,625,000.00 $889.83 (1) Estimated solely for the purpose of calculating the registration fee. Computed pursuant to Rule 457(c) using the last sale price for the Registrant's Common Stock as quoted on the NASDAQ National Market System on December 2, 1997. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents and all other documents subsequently filed 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 the Common Stock offered hereby has been sold or which deregisters all such Common Stock then remaining unsold, are hereby incorporated herein by reference to be a part of this Registration Statement from the date of filing such documents: (a) The Company's latest prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933; (b) The Company's latest annual report on Form 10-K filed pursuant to Section 15(d) of the Securities Exchange Act of 1934; (c) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year covered by the annual reports referred to in (b) above; (d) The description of the Common Stock which is contained in the Company's Registration Statement No. 333-83166-D filed under the Securities Act of 1933; (e) Articles of Incorporation and By-laws filed as Exhibits 2.1 and 2.2, respectively, to Registrant's Registration No. 2-69601 filed with the Commission; and (f) Articles of amendment to Articles of Incorporation as filed as Exhibit 3-1 to Registrant's 10-K for the fiscal year ended April 30, 1988 filed with the Commission. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. The Articles of Incorporation and Bylaws of the Company provide that the Company shall indemnify to the fullest extent permitted by Colorado law 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, by reason of the fact that he or she is or was a director or officer of the Company or is or was serving at the request of the Company in any capacity and in any other corporation, partnership, joint venture, trust or other enterprise. The Colorado Business Corporation Act (the "Colorado Act") permits the Company to indemnify an officer or director who was or is a party or is threatened to be made a party to any proceeding because of his or her position, if the officer or director acted in good faith and in a manner he or she reasonably believed to be in the best interests of the Company or, if such officer or director was not acting in an official capacity for the Company, he or she reasonably believed the conduct was not opposed to the best interests of the Company. Indemnification is mandatory if the officer or director was wholly successful, on the merits or otherwise, in defending such proceeding. Such indemnification (other than as ordered by a court) shall be made by the Company only upon a determination that indemnification is proper in the circumstances because the individual met the applicable standard of conduct. Advances for such indemnification may be made pending such determination. Such determination shall be made by a majority vote of a quorum consisting of disinterested directors or of a committee of at least two disinterested directors, or by independent legal counsel or by the shareholders. In addition, the Articles of Incorporation provide for the elimination, to the extent permitted by Colorado law, of personal liability of directors to the Company and its shareholders for monetary damages for breach of fiduciary duty as directors. The Colorado Act provides for the elimination of personal liability of directors for damages occasioned by breach of fiduciary duty, except for liability based on the director's duty of loyalty to the Company, liability for acts or omissions not made in good faith, liability for acts or omissions involving intentional misconduct, liability based on payments of improper dividends, liability based on violations of state securities laws, and liability for acts occurring prior to the date such provision was added. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit No. Description of Exhibit 5.1 Opinion of Chrisman, Bynum & Johnson, P.C. 23.1 Consent of Chrisman, Bynum & Johnson, P.C. (included in Exhibit 5.1) 23.2 Consent of Grant Thornton LLP 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 and 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. (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 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) (1) The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus to each employee to whom the prospectus is sent or given a copy of the registrant's annual report to stockholders for its last fiscal year, unless such employee otherwise has received a copy of such report, in which case the registrant shall state in the prospectus that it will promptly furnish, without charge, a copy of such report on written request of the employee. If the last fiscal year of the registrant has ended within 120 days prior to the use of the prospectus, the annual report of the registrant for the preceding fiscal year may be so delivered, but within such 120 day period the annual report for the last fiscal year will be furnished to each such employee. (2) The undersigned registrant hereby undertakes to transmit or cause to be transmitted to all employees participating in the plan who do not otherwise receive such material as stockholders of the registrant, at the time and in the manner such material is sent to its stockholders, copies of all reports, proxy statements and other communications distributed to its stockholders generally. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Longmont, State of Colorado, on the 3rd day of December, 1997. ENGINEERING MEASUREMENTS COMPANY By: /s/Charles E. Miller Charles E. Miller, CEO and President 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 and on the dates indicated. SIGNATURE TITLE DATE /s/Charles E. Miller Chief Executive Officer, December 3, 1997 Charles E. Miller President, Chairman of the Board, and Director /s/Walter Kluck Director December 3, 1997 Walter Kluck /s/Thomas G. Miller Director December 3, 1997 Thomas G. Miller, M.D /s/William A. Ringer Director December 3, 1997 William A. Ringer EXHIBIT INDEX Exhibit No. Description of Exhibit 5.1 Opinion of Chrisman, Bynum & Johnson, P.C. 23.1 Consent of Chrisman, Bynum & Johnson, P.C. (included in Exhibit 5.1) 23.2 Consent of Grant Thornton LLP December 2, 1997 Board of Directors Engineering Measurements Co. 600 Diagonal Highway Longmont, CO 80501 Re: Registration Statement on Form S-8 1997 Incentive Plan Gentlemen: We are counsel for Engineering Measurements Co., a Colorado corporation (the "Company"), in connection with a Registration Statement on Form S-8 (the "Registration Statement") to be filed with the United States Securities and Exchange Commission, pursuant to the Securities Act of 1933, as amended. The Registration Statement covers a proposed offering of 500,000 shares of the Company's Common Stock to be issued pursuant to the 1997 Incentive Plan. In connection with our representation of the Company, we are of the opinion that: 1. The Company has been duly incorporated under Colorado law, and is validly existing as a corporation in good standing under the laws of that state. 2. The 500,000 shares of Common Stock proposed to be sold pursuant to this offering will, upon the purchase, receipt of full payment, issuance and delivery of such shares in accordance with the terms of the offering described in the Registration Statement, be duly and validly authorized, legally issued, fully paid and non-assessable. We consent to the use of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Laurie P. Glasscock, Esq. Laurie P. Glasscock, Esq. LPG/rdm cc: Mr. John Thompson, Engineering Measurements Co. G. James Williams, Jr., Esq. NASDAQ EXHIBITS 5.1 & 23.1 CONSENT OF CERTIFIED PUBLIC ACCOUNTANTS We have issued our report dated June 13, 1997, accompanying the financial statements of Engineering Measurements Company appearing in the Annual Report of the Company to its shareholders included in the Annual Report on Form 10-KSB for the year ended April 30, 1997, which are incorporated by reference in the Registration Statement. We consent to the incorporation by reference in the Registration Statement of the aforementioned report. /s/ Grant Thornton LLP Grant Thornton LLP Denver, Colorado November 18, 1997 EXHIBIT 23.2 -----END PRIVACY-ENHANCED MESSAGE-----