-----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, EN3iGOy3YmG34FG5KZqC0RBJbZXkQGZWGOI0LOCT6PBdZjOte5i0Y7S0busePVf/ k57+hu/ZDkRNeCWa1emX9w== 0000071241-06-000018.txt : 20060901 0000071241-06-000018.hdr.sgml : 20060901 20060901100742 ACCESSION NUMBER: 0000071241-06-000018 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20060901 DATE AS OF CHANGE: 20060901 EFFECTIVENESS DATE: 20060901 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEW BRUNSWICK SCIENTIFIC CO INC CENTRAL INDEX KEY: 0000071241 STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY APPARATUS & FURNITURE [3821] IRS NUMBER: 221630072 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-137050 FILM NUMBER: 061070113 BUSINESS ADDRESS: STREET 1: 44 TALMADGE RD STREET 2: PO BOX 4005 CITY: EDISON STATE: NJ ZIP: 08818-4005 BUSINESS PHONE: 9082871200 MAIL ADDRESS: STREET 1: 44 TALMADGE ROAD STREET 2: PO BOX 4005 CITY: EDISON STATE: NJ ZIP: 08818-4005 S-8 1 forms82001nqstkoptoffkeyemp.txt FORM S-8 2001 STK OPT PLAN - OFFICERS AND KEY EMPLOYEES AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 1, 2006 REGISTRATION NO. 333- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 [GRAPHIC OMITED] FORM S-8 PLACESTATENEW BRUNSWICK SCIENTIFIC CO., INC. (Exact Name of Registrant as Specified in Its Charter) NEW JERSEY 22-1630072 (State or Other Jurisdiction of (I.R.S. Employer Identification No.) Incorporation or Organization) 44 TALMADGE ROAD, P.O. BOX 4005 EDISON, NEW JERSEY 08818-4005 (732) 287-1200 (Address of Principal Executive Offices) NEW BRUNSWICK SCIENTIFIC CO., INC. 2001 NONQUALIFIED STOCK OPTION PLAN FOR OFFICERS AND KEY EMPLOYEES (Full Title of the Plan) JAMES T. ORCUTT, PRESIDENT & CHIEF OPERATING OFFICER 44 TALMADGE ROAD, P.O. BOX 4005 EDISON, NEW JERSEY 08818-4005 (732) 287-1200 (Name, Address and Telephone Number of Agent For Service) With a Copy to: PETER D. HUTCHEON, ESQ. NORRIS, MCLAUGHLIN & MARCUS, P.A. 721 ROUTE 202-206 P.O. BOX 1018 SOMERVILLE, NEW JERSEY 08876-1018 908-722-0700 [GRAPHIC OMITED] CALCULATION OF REGISTRATION FEE
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION BE REGISTERED REGISTERED (2) PER SHARE (3) OFFERING PRICE (3) FEE Common Stock, $.0625 par value per share (1) 320,000 $7.46 $2,387,200 $255.43
[GRAPHIC OMITED] (1) Consists of shares issuable under the New Brunswick Scientific Co., Inc. 2001 Nonqualified Stock Option Plan For Officers And Key Employees (the "Plan"). (2) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended ("Securities Act"), the number of shares of Common Stock registered hereby is subject to adjustment to prevent dilution by reason of any stock dividend, stock split, recapitalization or other similar transaction that results in an increase in the number of the outstanding shares of Common Stock. (3) Estimated solely for the purpose of calculating the registration fee. Such estimate has been computed in accordance with Rule 457(c) and Rule 457(h) under the Securities Act based on the average high and low prices of the Registrant's Common Stock as reported on the Nasdaq Global Market on August 29, 2006. EXPLANATORY NOTE This Registration Statement registers both (i) shares of Common Stock to be offered and sold under the New Brunswick Scientific Co., Inc. 2001 Nonqualified Stock Option Plan For Officers And Key Employees (the "Plan") and (ii) shares of Common Stock acquired under the Plan that that are restricted securities which may be offered and sold from time to time by the purchasers thereof pursuant to the reoffer prospectus included herewith (the "Reoffer Prospectus"). TABLE OF CONTENTS Item 1. Plan Information I-1 Item 2. Registrant Information and Plan Annual Information I-1 Item 3. Incorporation of Documents by Reference II-1 Item 4. Description of Securities II-1 Item 5. Interests of Named Experts and Counsel II-1 Item 6. Indemnification of Directors and Officers II-1 Item 7. Exemption from Registration Claimed II-2 Item 8. Exhibits II-2 Item 9. Undertakings II-2 PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS ITEM 1. PLAN INFORMATION Pursuant to the rules for filing a Registration Statement on Form S-8, such information is contained in a document which does not constitute a part of this Registration Statement but which shall, together with the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, constitute a prospectus under Section 10(a) of the Securities Act of 1933. ITEM 2. REGISTRANT INFORMATION AND PLAN ANNUAL INFORMATION Copies of documents incorporated by reference in Item 3 of Part II of this Registration Statement, and such other documents required to be delivered to employees pursuant to Rule 428(b) (Section 230.428(b)) may be obtained upon written or oral request without charge from the headquarters office of the Company, New Brunswick Scientific Co., Inc., Attn: James T. Orcutt, President & Chief Operating Officer, 44 Talmadge Road, P.O. Box 4005, Edison, New Jersey 08818-4005, (732) 287-1200. I-1 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by New Brunswick Scientific Co., Inc (the "Registrant") with the Securities and Exchange Commission (the "Commission") are incorporated by reference in this Registration Statement: (a) The Registrant's Current Reports on Form 8-K, filed January 11, 2006, March 23, 2006, May 4, 2006, May 9, 2006, June 8, 2006 and August 11, 2006. (b) The Registrant's Annual Report on Form 10-K for the year ended December 31, 2005, filed on March 22, 2006. (c) The Registrant's Quarterly Report on Form 10-Q for the quarter ended April 1, 2006, filed on May 10, 2006. (d) The Registrant's Quarterly Report on Form 10-Q for the quarter ended July 1, 2006, filed on August 14, 2006. (e) The material under the caption "Capital Stock to be Registered" in the Company's Registration Statement on Form 8-A under Section 12(g) of the Securities Exchange Act of 1934 filed with the Commission on April 13, 1973, which incorporates by reference the information under "Common Stock" in the prospectus constituting a part of the Company's Registration Statement on Form S-1, as amended and effective on March 14, 1972 (File No. 2-42505). All documents filed by the Registrant after the date of this Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (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 then remaining unsold, shall be deemed incorporated herein by reference in this registration statement and shall be deemed a part hereof from the date of filing of such documents. Any statement contained in a document 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 14A:3-5 of the New Jersey Business Corporation Act (the "NJBCA"), the Company's Certificate of Incorporation and By-Laws give the Registrant power to indemnify each of its directors and officers against expenses and liabilities in connection with any proceeding involving him by reason of his being or having been a director or officer if (a) he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Registrant and (b) with respect to any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. However, in a proceeding by or in the right of the Registrant, there shall be no indemnification in respect of any liabilities or expenses if the officer or director shall have been adjudged liable to the Registrant, unless and only to the extent that the court in such proceeding determines upon application that despite the adjudication of liability, but in view of all circumstances of the case, such officer or director is fairly and reasonably entitled to indemnity for such expenses as the II-1 court deems proper. Furthermore, no indemnification shall be made to or on behalf of a director or officer if a judgment or other final adjudication adverse to such director or officer establishes that his acts or omissions (a) were in breach of his duty of loyalty to the Company and its stockholders, (b) were not in good faith or involved a knowing violation of law or (c) resulted in receipt by the director or officer of an improper personal benefit. The NJBCA defines an act or omission in breach of a person's duty of loyalty as an act or omission which that person knows or believes to be contrary to the best interests of the Company or its stockholders in connection with a matter in which he has a material conflict of interest. If a director or officer is successful in a proceeding, the statute mandates that the Company indemnify him against expenses. The By-Laws provide that the Company shall indemnify each officer and director of the Company (and each officer and director of another entity who was serving at the request of the Company) who is a party to, or is threatened to be made a party to, any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement, actually and reasonably incurred in connection with such action, suit or proceeding, to the fullest extend permitted by law. The By-Laws also provide that costs in defending any action, suit or proceeding referred to above may be paid by the Company in advance of the final disposition thereof under certain circumstances. All expenses and liabilities incurred by the Board of Directors in the administration of the Plan shall be borne by the Company. The Board of Directors may employ attorneys, consultants, accountants or other persons in connection with the administration of the Plan. The Company, and its officers and directors, shall be entitled to rely upon the advice, opinions or valuations of any such persons. No member of the Board of Directors shall be liable for any action, determination or interpretation taken or made in good faith with respect to the Plan or any option granted hereunder. Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 the Act and is therefore unenforceable. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED The offer and sale by the registrant of the restricted securities being offered for sale pursuant to the Reoffer Prospectus were exempt from registration under the Securities Act of 1933, as amended, in accordance with Section 4(2) thereunder based on the knowledge and the financial sophistication of the Selling Shareholders. ITEM 8. EXHIBITS *5 Opinion of Norris, McLaughlin & Marcus, P.A. *23(a) Consent of KPMG LLP 23(b) Consent of Norris, McLaughlin & Marcus, P.A. (included in Exhibit 5) 24 Power of Attorney (included on signature page) __________________________________________________________________________ *Filed herewith ITEM 9. UNDERTAKINGS 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. II-2 (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 information required to be included in a post-effective amendment by those paragraphs is contained in periodic 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 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. 4. 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. 5. 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. II-3 SIGNATURES Pursuant to the requirements of the Securities Act, 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 Township of Edison, State of New Jersey, on this 31 day of August, 2006. NEW BRUNSWICK SCIENTIFIC CO., INC. (Registrant) By: /s/ James T. Orcutt Name: James T. Orcutt --------------- Title: President & Chief Operating Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints James T. Orcutt (with full power in each to act alone), his true and lawful attorneys-in-fact, with full power of substitution, 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 each 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 might or could do in person, hereby ratifying and confirming that all said attorneys-in-fact, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated below. SIGNATURE TITLE DATE - --------- ----- ---- /s/ David Freedman Chairman of the Board, August 31, 2006 Chief Executive Officer (Principal Executive Officer) and Director David Freedman - -------------- /s/ Adele Lavender Corporate Secretary August 31, 2006 Adele Lavender - -------------- /s/ Thomas Bocchino Vice President, Finance, August 31, 2006 Treasurer and Chief Financial Officer (Principal Financial Officer / Principal Accounting Officer) Thomas Bocchino - --------------- /s/ James T. Orcutt President, Chief Operating Officer August 31, 2006 and Director James T. Orcutt - --------------- /s/ Jerome Birnbaum Director August 31, 2006 Dr. Jerome Birnbaum - ------------------- II-4 /s/ Kenneth Freedman Director August 31, 2006 Kenneth Freedman - ---------------- /s/ Ernest Gross Director August 31, 2006 Ernest Gross - ------------ /s/ Joel Jaffe Director August 31, 2006 Joel Jaffe - ---------- /s/ David Pramer Director August 31, 2006 Dr. David Pramer - ---------------- /s/ Peter Schkeeper Director August 31, 2006 Peter Schkeeper - --------------- Daniel S. Van Riper Director August 31, 2006 Daniel S. Van Riper - ------------------- II-5 EX-5 2 legalopinion.txt FORM S-8 2001 STK OPT PLAN - OFFICERS AND KEY EMPLOYEES - LEGAL OPINION EXHIBIT 5 August 31, 2006 New Brunswick Scientific Co., Inc. 44 Talmadge Road Edison, New Jersey 08818-4005 Re: New Brunswick Scientific Co., Inc. 2001 Nonqualified Stock Option Plan For Officers And Key Employees ------------------------------------------------------------------ Ladies and Gentlemen: We refer you to the proposed Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1993, of New Brunswick Scientific Co., Inc. (the "Company") pertaining to the offer and sale by the Company of 320,000 shares of the Company's Common Stock, $0.0625 par value (the "Common Shares") pursuant to options granted from time to time under the Company's 2001 Nonqualified Stock Option Plan For Officers And Key Employees (the "Plan"). We have acted as counsel to the Company in connection with the Registration Statement. In such capacity, we have examined the Registration Statement, copies of the Company's Certificates of Incorporation and amendments thereto, the Plan, certificates of officers of the Company and of public officials and such other corporate records and documents as we have deemed necessary in order to express the opinion set forth below. Based upon the foregoing examination, it is our opinion that upon the issuance of certificates evidencing the Common Shares and delivery thereof in exchange for payment of the option prices set forth under the Plan from time to time, and upon satisfaction of all other conditions, if any, applicable to such issuance, then the Common Shares shall be validly issued, fully paid and nonassessable. We hereby consent to the use of this opinion as an exhibit to the Registration Statement. Very truly yours, NORRIS, McLAUGHLIN & MARCUS, P.A. /s/ DOUGLAS R. BROWN DOUGLAS R. BROWN A Member of the Firm EX-23.A 3 accountantopinion.txt FORM S-8 2001 STK OPT PLAN - OFFICERS AND KEY EMPLOYEES - ACCOUNTANT OPINION EXHIBIT 23(a) Consent of Independent Registered Public Accounting Firm -------------------------------------------------------- The Board of Directors and Stockholders New Brunswick Scientific Co., Inc.: We consent to the use of our report dated March 8, 2006, with respect to the consolidated balance sheets of New Brunswick Scientific Co., Inc. and subsidiaries as of December 31, 2005 and 2004, and the related consolidated statements of operations, shareholders' equity, cash flows and comprehensive income for each of the years in the three-year period ended December 31, 2005, and the related consolidated financial statement schedule, all incorporated herein by reference. /s/ KPMG LLP Short Hills, New Jersey August 28, 2006 -----END PRIVACY-ENHANCED MESSAGE-----