-----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, WFNdt6qUosxD7qoEByFdY/n7/DnivTdOihm5Q9t71f4bkchPGdclbEI6VnEe57jE q7f9k3Gyu3uHoKvVQDAUWA== 0000891618-97-000043.txt : 19970115 0000891618-97-000043.hdr.sgml : 19970115 ACCESSION NUMBER: 0000891618-97-000043 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970113 EFFECTIVENESS DATE: 19970113 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: CMC INDUSTRIES INC CENTRAL INDEX KEY: 0000913270 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE & TELEGRAPH APPARATUS [3661] IRS NUMBER: 621434910 STATE OF INCORPORATION: DE FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-19705 FILM NUMBER: 97505131 BUSINESS ADDRESS: STREET 1: 4950 PATRICK HENRY DRIVE CITY: SANTA CLARA STATE: CA ZIP: 95054 BUSINESS PHONE: 601-287-3771 MAIL ADDRESS: STREET 1: 1801 FULTON DRIVE CITY: CORINTH STATE: MS ZIP: 38834 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on January 13, 1997 Registration No. 333-_________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 CMC INDUSTRIES, INC. (Exact name of issuer as specified in its charter) Delaware 62-1434910 (State of incorporation) (IRS Employer Identification No.)
4950 Patrick Henry Drive Santa Clara, California 95054 (Address of principal executive offices) 1990 EQUITY INCENTIVE PLAN, AS AMENDED 1996 EMPLOYEE STOCK PURCHASE PLAN (Full title of the plans) Matthew G. Landa President and Chief Executive Officer CMC Industries, Inc. 4950 Patrick Henry Drive Santa Clara, California 95054 (Name and address of agent for service) (408) 982-9999 (Telephone number, including area code, of agent for service) Copy to: Martin W. Korman, Esq. WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, California 94304-1050 CALCULATION OF REGISTRATION FEE
Proposed Proposed Maximum Maximum Amount of Title of Securities Amount to be Offering Price Aggregate Registration to be Registered Registered Per Share Offering Price Fee ---------------- ---------- --------- -------------- --- Common Stock, par value $0.01 per share, to be issued under the 1996 Employee Stock 488,197 $8.075(1) $3,942,190.78(1) $1,194.60 Purchase Plan Common Stock, par value 1,842,565(+) $9.50(2) $17,504,367.50(2) $5,304.35 $0.01 per share, to be issued under the 1990 Equity Incentive Plan
(1) Estimated in accordance with Rules 457(c) and 457(h) solely for the purpose of calculating the registration fee on the basis of $8.075, or 85% of the average of the high and low sales prices of the Company's Common Stock on the Nasdaq National Market on January 9, 1997. (2) Estimated in accordance with Rules 457(c) and 457(h) solely for the purpose of calculating the registration fee on the basis of $9.50 per share, the average of the high and low sales prices of the Company's Common Stock on the Nasdaq National Market on January 9, 1997. + Calculated under the assumption that the maximum number of shares issuable each year under the plan's "evergreen" provision (five percent of the Company's Common Stock outstanding on the last day of the immediately preceding year) was so issued, and that the Company issues no other additional Common Stock. 2 CMC INDUSTRIES, INC. REGISTRATION STATEMENT ON FORM S-8 PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE There are hereby incorporated by reference in this Registration Statement the following documents and information heretofore filed with the Securities and Exchange Commission (CMC Industries, Inc. is sometimes referred to herein as the "Company"): (a) The Company's Annual Report on Form 10-K for the fiscal year ended July 31, 1996, filed pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the "1934 Act"); (b) The Company's Quarterly Report on Form 10-Q for the fiscal period ended October 31, 1996, filed pursuant to Section 13 of the 1934 Act; (c) The Company's Proxy Statement dated November 15, 1996 relating to the Company's 1996 Annual Meeting of Shareholders; and (d) The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A filed November 20, 1993 pursuant to Section 12(b) of the 1934 Act. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act on or after the date of this Registration Statement and 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 by reference in this Registration Statement and to be part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. Inapplicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Inapplicable. II-1 3 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation's Board of Directors to grant, indemnification to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933. The Company's Bylaws provide for the indemnification of its directors, officers, employees and other agents to the maximum extent permitted by Delaware General Corporation Law, and the Company has entered into agreements with its officers, directors and certain key employees implementing such indemnification. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Inapplicable. ITEM 8. EXHIBITS Exhibit Number Description ------ ----------- 4.1(1) 1990 Equity Incentive Plan, as amended. 4.2(1) 1996 Employee Stock Purchase Plan. 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation. 23.1 Consent of Independent Accountants. 23.2 Consent of Counsel (contained in Exhibit 5.1). 24.1 Power of Attorney (see page II-4). - -------- (1) Incorporated by reference to by the Company's Proxy Statement dated November 15, 1996 relating to the Company's 1996 Annual Meeting of Shareholders. 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 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. II-2 4 (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. Insofar as indemnification for liabilities arising under the Securities Act of 1933 (the "Securities Act") may be permitted to directors, officers and controlling persons of the Company pursuant to the Delaware General Corporation Law, the Certificate of Incorporation of the Company, the Bylaws of the Company, indemnification agreements entered into between the Company and its officers and directors or otherwise, the Company 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 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company in successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, the Company 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 of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant, CMC Industries, Inc., a corporation organized and existing under the laws of the State of Delaware, 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 Santa Clara, State of California, on this 13th day of January, 1997. CMC INDUSTRIES, INC. By: /s/ Matthew G. Landa ----------------------------------- Matthew G. Landa President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Matthew G. Landa and Andrew J. Moley, jointly and severally, his attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may 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 by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Matthew G. Landa President, Chief Executive Officer January 13, 1997 - ----------------------------------- and Director (Principal Executive Matthew G. Landa Officer) /s/ Andrew J. Moley Executive Vice President, Chief January 13, 1997 - ----------------------------------- Financial Officer and Director Andrew J. Moley (Principal Financial and Accounting Officer) - ----------------------------------- Chairman of the Board David S. Lee /s/ Ira Coron - ----------------------------------- Director January 13, 1997 Ira Coron - ----------------------------------- Director Frederick W. Gibbs /s/ Charles Holloway - ----------------------------------- Director January 13, 1997 Charles Holloway
II-4 6 INDEX TO EXHIBITS
Sequentially Exhibit Numbered Number Description Page - ------ ----------- ---- 4.1(1) 1990 Equity Incentive Plan, as amended................................................ 4.2(1) 1996 Employee Stock Purchase Plan..................................................... 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation........................................................................... 23.1 Consent of Independent Accountants ................................................... 23.2 Consent of Counsel (contained in Exhibit 5.1)......................................... 24.1 Power of Attorney (see Page II-4 of Registration Statement)...........................
- -------- (1) Incorporated by reference to by the Company's Proxy Statement dated November 15, 1996 relating to the Company's 1996 Annual Meeting of Shareholders. EX-5.1 2 OPINION OF WILSON SONSINI GOODRICH & ROSATI 1 Exhibit 5.1 January 13, 1997 CMC Industries, Inc. 4950 Patrick Henry Drive Santa Clara, CA 95054 Re: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about January 13, 1997 (the "Registration Statement"), in connection with the registration under the Securities Act of 1933, as amended, of 488,197 additional shares of your Common Stock, par value $0.01 per share, reserved for issuance pursuant to the 1996 Employee Stock Purchase Plan (the "Purchase Plan") and 1,842,565 additional shares of your Common Stock, par value $0.01 per share, reserved for issuance pursuant to the 1990 Equity Incentive Plan, as amended (the "Incentive Plan"). As your counsel in connection with the transaction, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the sale and issuance of the shares pursuant to the Purchase Plan and the Incentive Plan. It is our opinion, when issued and sold in the manner referred to in the Plan, the shares will be legally and validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement and any amendment thereto. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation /s/ WILSON SONSINI GOODRICH & ROSATI EX-23.1 3 CONSENT OF INDEPENDENT ACCOUNTANTS 1 Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated August 26,1996, except as to Note 8, which is as of September 26, 1996, which appears on page 35 of the 1996 Annual Report to Shareholders of CMC Industries, Inc., which is incorporated by reference in CMC Industries, Inc.'s Annual Report on Form 10-K for the year ended July 31, 1996. PRICE WATERHOUSE LLP Memphis, Tennessee January 10, 1997 -----END PRIVACY-ENHANCED MESSAGE-----