-----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, Nkf8VtLdV3Ks+IDD394UBj6QMt9grxZplglxALpNO0CxxwH5vXQETuPjAvTX6Nq2 sZfijOSTmEWx4K47ZtWMlA== 0000912057-96-022279.txt : 19961009 0000912057-96-022279.hdr.sgml : 19961009 ACCESSION NUMBER: 0000912057-96-022279 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19961008 EFFECTIVENESS DATE: 19961008 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: INTEGRATED MEASUREMENT SYSTEMS INC /OR/ CENTRAL INDEX KEY: 0000945441 STANDARD INDUSTRIAL CLASSIFICATION: INSTRUMENTS FOR MEAS & TESTING OF ELECTRICITY & ELEC SIGNALS [3825] IRS NUMBER: 930840631 STATE OF INCORPORATION: OR FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-13695 FILM NUMBER: 96640779 BUSINESS ADDRESS: STREET 1: 9525 SW GEMINI DR CITY: BEAVERTON STATE: OR ZIP: 97008 BUSINESS PHONE: 5036267117 MAIL ADDRESS: STREET 1: 9525 SW GEMINI DR CITY: BEAVERTON STATE: OR ZIP: 97008 S-8 1 INTEGRATED MEASUREMENT SYSTEMS, INC. S-8 As filed with the Securities and Exchange Commission on October 8, 1996 Registration No. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ INTEGRATED MEASUREMENT SYSTEMS, INC. (Exact name of registrant as specified in charter) OREGON 93-0840631 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) ------------------------ 9525 S.W. GEMINI DRIVE, BEAVERTON, OREGON 97008 (Address, including zip code, of registrant's principal executive offices) ------------------------ INTEGRATED MEASUREMENT SYSTEMS, INC. 1995 STOCK INCENTIVE PLAN (Full title of the Plan) ------------------------ KEITH L. BARNES PRESIDENT AND CHIEF EXECUTIVE OFFICER INTEGRATED MEASUREMENT SYSTEMS, INC. 9525 S.W. GEMINI DRIVE, BEAVERTON, OREGON 97008 (503) 626-7117 (Name, address, including zip code, and telephone number, including area code, of Agent for Service) ------------------------ with copies to: STEPHEN M. GOING, ESQ. ATER WYNNE HEWITT DODSON & SKERRITT, LLP 222 S.W. COLUMBIA, SUITE 1800, PORTLAND, OREGON 97201 (503) 226-1191 CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Title of Amount to be Proposed Proposed Amount of Securities Registered Maximum Maximum Registration to be Offering Aggregate Fee Registered Price per Offering Share (1) Price (1) - -------------------------------------------------------------------------------- Common Stock, par 1,250,000 Not $ 16,747,367 $ 5,075 value $.01 shares Applicable per share - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (1) Pursuant to Rule 457(h)(1), the aggregate offering price is based on the exercise prices of outstanding options and the average of high and low per shares sales prices of the Registrant's Common Stock as reported on the Nasdaq National Market System on October 4, 1996 for options not yet granted. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents are incorporated by reference into this Registration Statement: (a) Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 1995, filed with the Securities and Exchange Commission (the "SEC") pursuant to Sections 13(a) and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") on March 29, 1996. (b) Quarterly Report on Form 10-Q of the Company for the quarter ended June 30, 1996, filed with the SEC on August 14, 1996; Quarterly Report on Form 10-Q of the Company for the quarter ended March 31, 1996, filed with the SEC on May 15, 1996. (c) Registration Statement on Form 8-A of the Company filed with the SEC on June 21, 1995. (d) All documents filed by the Company with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and before the date of filing of a post-effective amendment to this Registration Statement stating that all securities offered have been sold or which deregisters all securities then remaining unsold. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS As an Oregon corporation the Company is subject to the Oregon Business Corporation Act ("OBCA") and the exculpation from liability and indemnification provisions contained therein. Pursuant to Section 60.047(2)(d) of the OBCA, Article IV of the Company's Restated Articles of Incorporation (the "Articles") eliminates the liability of the Company's directors to the Company or its shareholders, except for any liability related to breach of the duty of loyalty, actions not in good faith and certain other liabilities. The Articles require the Company to indemnify its directors and officers to the fullest extent not prohibited by law. -2- Section 60.387, ET SEQ., of the OBCA allows corporations to indemnify their directors and officers against liability where the director or officer has acted in good faith and with a reasonable belief that actions taken were in the best interests of the corporation or at least not adverse to the corporation's best interests and, if in a criminal proceeding, the individual had no reasonable cause to believe the conduct in question was unlawful. Under the OBCA, corporations may not indemnify against liability in connection with a claim by or in the right of the corporation in which the director or officer was adjudged liable to the corporation, but may indemnify against the reasonable expenses associated with such claims. Corporations may not indemnify against breaches of the duty of loyalty. The OBCA mandates indemnification against all reasonable expenses incurred in the successful defense of any claim made or threatened whether or not such claim was by or in the right of the corporation. Finally, a court may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances whether or not the director or officer met the good faith and reasonable belief standards of conduct set out in the statute. The OBCA also provides that the statutory indemnification provisions are not deemed exclusive of any other rights to which directors or officers may be entitled under a corporation's articles of incorporation or bylaws, any agreement, general or specific action of the board of directors, vote of shareholders or otherwise. The Company's Articles require the Company to indemnify its directors and officers to the fullest extent not prohibited by law. Effective as of May 11, 1995, the Company entered into indemnity agreements with H. Raymond Bingham, C. Scott Gibson, James M. Hurd, James E. Solomon, Delbert W. Yocam and Keith L. Barnes, each of whom is a member of the Board of Directors (Mr. Barnes is also an officer of the Company). Effective as of May 11, 1995, the Company also entered into indemnity agreements with Sar Ramadan, W. Barry Baril, Donald E. Grant, Marvin S. Wolfson, Kenneth R. Lindsay, James P. Fraine and Gwyn Harvey, each of whom is an officer of the Company. In addition, effective as of November 29, 1995, the Company also entered into an indemnity agreement with Mark Allison, an officer of the Company. Each agreement provides for indemnification of the indemnitee to the fullest extent allowed by law. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS -3- Number Description ------ ----------- 5.0 Opinion of Ater Wynne Hewitt Dodson & Skerritt, LLP as to the legality of the securities being registered 23.1 Consent of Ater Wynne Hewitt Dodson & Skerritt, LLP (included in legal opinion filed as Exhibit 5.0) 23.2 Consent of Arthur Andersen LLP 24.0 Powers of Attorney (included in signature page in Part II of the Registration Statement) 99.0 Integrated Measurement Systems, Inc. 1995 Stock Incentive Plan (Incorporated by reference to the Company's Registration Statement on Form S-1 (Registration No. 33-92408)). ITEM 9. UNDERTAKINGS (a) The undersigned registrant hereby undertakes 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 subparagraphs (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those subparagraphs is contained in periodic reports filed 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. (b) The undersigned registrant hereby undertakes that, for the purpose of determining 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. - 4 - (c) The undersigned registrant hereby undertakes 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. (d) 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 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. (e) 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 a director, officer or controlling person in connection with 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. - 5 - 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 Beaverton, State of Oregon, on the 30th day of September, 1996. INTEGRATED MEASUREMENT SYSTEMS, INC. By: /s/ Keith L. Barnes --------------------------------- Keith L. Barnes President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Keith L. Barnes and Sar Ramadan, and each of them singly, as true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities to sign the registration statement filed herewith and any or all amendments to said registration statement (including post-effective amendments), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorneys-in-fact and agents and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the foregoing, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Witness our hands on the date set forth below. 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. [SIGNATURES ON FOLLOWING PAGE] - 6 - Signature Title Date --------- ----- ---- /s/ Keith L. Barnes President, Chief 09/30/96 ---------------------- Executive Officer and Keith L. Barnes Director (Principal Executive Officer) /s/ Sar Ramadan Chief Financial Officer 09/30/96 ---------------------- (Principal Financial and Sar Ramadan Accounting Officer) /s/ H. Raymond Bingham Chairman of the Board 09/30/96 ---------------------- H. Raymond Bingham /s/ C. Scott Gibson Director 09/30/96 ---------------------- C. Scott Gibson /s/ James M. Hurd Director 09/30/96 ---------------------- James M. Hurd /s/ James E. Solomon Director 09/30/96 ---------------------- James E. Solomon /s/ Delbert W. Yocam Director 09/30/96 ---------------------- Delbert W. Yocam - 7 - INDEX TO EXHIBITS Exhibit Page Number Exhibit No. ------ ------- ---- 5.0 Opinion of Ater Wynne Hewitt Dodson & Skerritt, LLP as to the legality of the securities being registered 23.1 Consent of Ater Wynne Hewitt Dodson & Skerritt, LLP (included in legal opinion filed as Exhibit 5.0) 23.2 Consent of Arthur Andersen LLP 24.0 Powers of Attorney (included in signature page in Part II of the Registration Statement) 99.0 Integrated Measurement Systems, Inc. 1995 Stock Incentive Plan (Incorporated by reference to the Company's Registration Statement on Form S-1 (Registration No. 33-92408)). EX-5.0 2 CONSENT OF ATER, WYNNE, HEWITT, DODSON & SKERRITT EXHIBIT 5.0 ATER WYNNE HEWITT DODSON & SKERRITT, LLP 222 SW Columbia, Suite 1800 Portland, Oregon 97201 Phone (503) 226-1191 Fax (503) 226-0079 October 8, 1996 Board of Directors Integrated Measurement Systems, Inc. 9525 SW Gemini Drive Beaverton, Oregon 97008 Gentlemen: In connection with the registration of 1,250,000 shares of common stock, $0.01 par value per share (the "Common Stock"), of Integrated Measurement Systems, Inc., an Oregon corporation (the "Company"), under the Registration Statement on Form S-8 to be filed with the Securities and Exchange Commission on October 8, 1996, and the proposed offer and sale of the Common Stock pursuant to the terms of the Company's 1995 Stock Incentive Plan (the "1995 Plan"), we have examined such corporate records, certificates of public officials and officers of the Company and other documents as we have considered necessary or proper for the purpose of this opinion. Based on the foregoing and having regard to legal issues which we deem relevant, it is our opinion that the shares of Common Stock to be offered pursuant to the 1995 Plan, when such shares have been delivered against payment therefor as contemplated by the 1995 Plan, will be validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the above- mentioned registration statement. Very truly yours, /s/ Ater Wynne Hewitt Dodson & Skerritt, LLP Ater Wynne Hewitt Dodson & Skerritt, LLP EX-23.2 3 CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our reports dated January 26, 1996 included in Integrated Measurement Systems, Inc.'s Form 10-K for the year ended December 31, 1995 and to all references to our firm included in this registration statement. Portland, Oregon, October 2, 1996 -----END PRIVACY-ENHANCED MESSAGE-----