<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EMB CORPORATION
(Exact name of Registrant as specified in its charter)
HAWAII 95-3811580
- ---------------------------------- ----------------------------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
3200 BRISTOL AVENUE, 8/th/ FLOOR, COSTA MESA, CALIFORNIA 92626
---------------------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
1999 STOCK COMPENSATION PLAN
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(Full title of Plan)
JAMES E. SHIPLEY, PRESIDENT
EMB CORPORATION
3200 BRISTOL AVENUE, 8TH FLOOR
COSTA MESA, CALIFORNIA 92626
--------------------------------
(Name and address of agent for service)
(714) 437-0738
---------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price per Aggregate Offering Amount of
to be Registered Registered (1) Share (2) Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par 1,250,000 shares $2.20 $2,753,125 $812.17
value
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also covers an
indeterminate number of additional shares that may be issuable in connection
with share splits, share dividends or similar transactions.
(2) Estimated pursuant to Rule 457(c) under the Securities Act, solely for the
purpose of calculating the registration fee, based on the average of the bid and
asked prices of the Company's common stock as reported within five business days
prior to the date of this filing.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
*
*The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants as specified by Rule 428(b)(1) promulgated
by the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933 (the "Securities Act"). Such document(s) are not being
filed with the Commission, but constitute (along with the documents incorporated
by reference into the Registration Statement pursuant to Item 3 of Part II
hereof) a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously or concurrently filed by the Company with the
Commission are hereby incorporated by reference into this Registration
Statement:
(a) The Company's Annual Report on Form 10-KSB/A, for the fiscal year ended
September 30, 1999 (the "Annual Report") filed by the Company (SEC File No.
1-11883) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), with the Commission on April 11, 2000.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year referred to in (a) above.
(c) The description of the Company's Common Stock set forth under the caption
"Description of Capital Stock" in Amendment No. 2 to its Form SB-2
Registration Statement (File No. 333-21719) filed with the Commission on
August 27, 1997, is hereby incorporated by reference.
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All of the above documents and documents subsequently filed by the Company with
the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed incorporated by reference into this
Registration Statement and to be a part thereof from the date of the filing of
such documents. Any statement contained in the documents incorporated, or deemed
to be incorporated, by reference herein or therein shall be deemed to be
modified or superseded for purposes of this Registration Statement and the
prospectus which is a part hereof (the "Prospectus") to the extent that a
statement contained herein or therein or in any other subsequently filed
document which also is, or is deemed to be, incorporated by reference herein or
therein 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 and the Prospectus.
All documents incorporated by reference herein will be made available to all
participants in the 1999 Stock Compensation Plan without charge, upon written or
oral request. Other documents required to be delivered to participants pursuant
to Rule 428(b)(1) under the Securities Act of 1933 are also available without
charge, upon written or oral request. All requests for documents shall be
directed to:
James E. Shipley
EMB Corporation
3200 Bristol Avenue, 8/th/ Floor
Costa Mesa, California 92626
(714) 437-0738
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 Company is a Hawaii corporation. Section 415-48.5 of the Hawaii Business
Corporation Act (the "HBCA") provides authority for broad indemnification of
officers, directors, employees and agents of a corporation, with certain
specified exceptions.
<PAGE>
Article XIII of the Company's Restated Articles of Incorporation provides that
the Company shall have the power to indemnify its directors, officers, employees
and agents to the fullest extent allowed by the HBCA.
Article III, Section 6 of the Company's By-Laws provides for extensive
indemnification of its directors, officers, employees and agents.
At the present time, the Company does not have any officer-director liability
insurance, nor does the Company have indemnification agreements with any of its
directors, officers, employees or agents.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index following the signature page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement to: (i) include
any prospectus required by Section 10(a)(3) of the Securities Act; (ii) reflect
in the prospectus any facts or events arising after the effective date of the
Registration Statement which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement;
and notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be selected in the form of a prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration"
table in the effective registration statement; and (iii) 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 provisions (i) and (ii) of this
undertaking are inapplicable if the information to be filed thereunder is
contained in periodic reports filed by the Company pursuant to the Exchange Act
that are incorporated by reference into the Registration Statement;
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act, 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; and
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the 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 director, officer or controlling person 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 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 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.
(c) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in 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.
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SIGNATURES
The Registrant: 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 Costa Mesa, State of California, on April 11, 2000.
EMB CORPORATION
By: /s/ James E. Shipley
- --------------------------
James E. Shipley, President
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
/s/ James E. Shipley /s/ William V. Perry
- ----------------------------- ------------------------------
James E. Shipley William V. Perry
Director, President and Director and Secretary
Principal Financial and
Accounting Officer
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EMB CORPORATION
EXHIBIT INDEX
TO
POST-EFFECTIVE AMENDMENT NO.1
TO
FORM S-8 REGISTRATION STATEMENT
EXHIBIT NO. DESCRIPTION
4.1 1999 Stock Compensation Plan
5.1 Opinion of Bryan Cave LLP
23.1 Consent of McKennon Wilson & Morgan LLP
<PAGE>
EXHIBIT 4.1
EMB CORPORATION
1999 STOCK PLAN
1. Purpose. The purpose of this 1999 Stock Plan (the "Plan") is to advance the
interests of EMB Corporation, a Hawaii corporation ("EMB"), and its shareholders
by offering to those officers, employees and directors of EMB and its
subsidiaries who will be responsible for the long-term growth of EMB's earnings
the opportunity to acquire or increase their equity interests in EMB, thereby
achieving a greater commonality of interest between shareholders, employees and
directors, enhancing EMB's ability to retain and attract both highly qualified
employees and directors and providing an additional incentive to such employees
to achieve EMB's long-term business plans and objectives.
2. Award Opportunities. Awards (individually, an "Award"; collectively, the
"Awards") under the Plan may be granted in the form of Common Stock that is
restricted and must be purchased by the officer, employee or director (the
"Restricted Common Stock") .
3. Administration.
(A) Committee. The Plan shall be administered by EMB's Compensation
Committee (the "Committee") of the Board authorized by the Board. The
Committee shall consist of no less than two directors of EMB who shall
be appointed, from time to time, by the Board. All references in the
Plan to the Board shall refer only to the Committee.
(B) Authority. The Board, or the Committee, to the extent the Board has
delegated such authority to the Committee, shall have full and final
authority with respect to the Plan (i) to interpret all provisions of
the Plan consistent with law; (ii) to determine the individuals who will
receive Awards; (iii) to determine the frequency of grant of Awards;
(iv) to determine the number of shares of Restricted Common Stock to be
granted to each individual; (v) to prescribe the form and terms of
instruments evidencing any Award granted under the Plan; (vi) to adopt,
amend and rescind general and special rules and regulations for the
Plan's administration; and (vii) to make all other determinations
necessary or advisable for the administration of the Plan. The Board
may, with the consent of the person who has been granted an Award under
the Plan, amend the instrument regarding such Award consistent with the
provisions of the Plan.
(C) Indemnification. No member of the Board or the Committee shall be
liable for any action taken or determination made in good faith. The
members of the Board and the Committee shall be indemnified by EMB for
any acts or omissions in connection with the Plan to the full extent
permitted by Federal or California laws.
4. Eligibility. Participation in the Plan shall be determined by the Board
and shall be limited to officers, employees and directors of EMB and its
subsidiaries (individually, a "Participant"; collectively, the
"Participants").
5. Stock Subject to Plan. Subject to adjustments as provided in Section
9(A) hereof, the
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aggregate amount of Common Stock as to which Awards may be granted under
the Plan shall not exceed 1,700,000 shares and may be authorized but
unissued shares or treasury shares.
The Board shall maintain records showing the cumulative number of shares
of Restricted Common Stock.
6. Restricted Common Stock.
(A) Granting of Restricted Common Stock. The Board may, in its sole
discretion and subject to the provisions of the Plan, grant to eligible
officers, employees or directors at such times as it deems appropriate
following adoption of the Plan by the Board, shares of Restricted Common
Stock.
(B) Price of Restricted Common Stock. The price at which Restricted
Common Stock may be purchased by a Participant under the Plan shall be
determined by the Board and shall be 100% of the fair market value, per
share, of the Common Stock at the time the Restricted Common Stock was
granted.
Each certificate evidencing shares of Restricted Common Stock shall
be inscribed with a legend substantially as follows:
"The shares of common stock of EMB Corporation, evidenced by this
certificate are subject to the terms and restrictions of the EMB
Corporation 1999 Stock Plan. Such shares are subject to forfeiture
or cancellation under the terms of said Plan and shall not be sold,
transferred, assigned, pledged, encumbered, or otherwise alienated
or hypothecated except pursuant to the provisions of said Plan, a
copy of which is available from EMB Corporation, upon request."
(C) Persons Subject to Section 16 of the Exchange Act. Participants who
are subject to Section 16 of the Exchange Act are hereby advised that
reliance on Rule 16b3 may require that any equity security of EMB
acquired upon exercise of Restricted Common Stock by such person be held
at least until the date six months after the date of grant of the
Restricted Common Stock.
7. Other Provisions.
(A) No Right to Employment. Neither the adoption of the Plan nor its
operation, nor any document descrEMBng or referring to the Plan, or any
part thereof, shall confer upon any Participant under the Plan any right
to continue in the employ of EMB or a subsidiary or shall in any way
affect the right and power of EMB or a subsidiary to terminate the
employment of any Participant under the Plan at any time with or without
assigning a reason therefor.
<PAGE>
(B) Tax Withholding. The Board shall have the right to deduct from any
settlement of an Award, including without limitation the delivery or
vesting of Common Stock, made under the Plan any Federal, state, or
local taxes of any kind required by law to be withheld with respect to
such payments or to take any such other action as may be necessary in
the opinion of the Board to satisfy all obligations for payment of such
taxes. If Common Stock that would otherwise be delivered in settlement
of the Award are used to satisfy tax withholding, such Common Stock
shall be valued based on their Fair Market Value determined in
accordance with section 6(B) when the tax withholding is required to be
made. Participants who are subject to Section 16 of the Exchange Act are
hereby advised that pursuant to Rule 16b3 thereunder the use of shares
to satisfy tax withholding will be treated as the exercise of a Stock
Appreciation Right.
(C) Amendment and Termination. The Board may at any time suspend, amend,
or terminate the Plan, and, without limiting the foregoing, the Board
shall have the express authority to amend the Plan from time to time,
with or without approval by the shareholders, in the manner and to the
extent that the Board believes is necessary or appropriate in order to
cause the Plan to conform to provisions of Rule 16b3 under the Exchange
Act and any other rules under Section 16 of the Exchange Act, as any of
such rules may be amended, supplemented, or superseded from time to
time. Except for adjustments made in accordance with Section 9(A), the
Board may not, without the consent of the grantee of the Award, alter or
impair any Award previously granted under the Plan. No Award may be
granted during any suspension of the Plan or after termination thereof.
In addition to Board approval of an amendment, if the amendment would:
(i) materially increase the benefits accruing to Participants; (ii)
increase the number of shares of Common Stock deliverable under the Plan
(other than in accordance with the provisions of Section 9(A); or (iii)
materially modify the requirements as to eligibility for participation
in the Plan, then such amendment shall be approved by the holders of a
majority of EMB's outstanding capital stock represented and entitled to
vote at a meeting held for the purpose of approving such amendment to
the extent required by Rule 16b3 of the Exchange Act.
(D) Effective Date of the Plan. The Plan was adopted by the Board on
December 14, 1999.
(E) Duration of the Plan. Unless previously terminated by the Board, the
Plan shall terminate at the close of business on December 13, 2004, and
no Award shall be granted under it thereafter, but such termination
shall not affect any Award theretofore granted.
(F) Use of Certain Terms. The terms "parent" and "subsidiary" shall have
the meanings ascribed to them in Section 424 of the Code and unless the
context otherwise requires, the other terms defined in Section 421, 422,
and 424, inclusive, of the Code and regulations and revenue rulings
applicable thereto, shall have the meanings attributed to them therein.
<PAGE>
[LETTERHEAD OF BRYAN CAVE LLP]
January 15, 2000
EMB Corporation
3200 Bristol Street, 8/th/ Floor
Costa Mesa, CA 92626
Re: Registration on Form S-8/A
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8/A
(the "Registration Statement") as proposed to be filed by you with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of the offer and sale of up to 1,250,000
shares (the "Shares") of Common Stock, no par value per share, of EMB
Corporation, a Hawaii corporation (the "Company"), to be issued pursuant to the
Company's 1999 Stock Compensation Plan. We have further examined the proceedings
that you have previously taken and are familiar with the additional proceedings
proposed to be taken in connection with the authorization, issuance, and sale of
the Shares.
Subject to compliance with applicable state securities and "Blue Sky" laws,
we are of the opinion that the Shares, upon their issuance and sale in the
manner described in the Registration Statement, will be legally issued, fully
paid, and non-assessable securities of the Company.
We consent to the use of this opinion as Exhibit 5.1 of the Registration
Statement and to the use of our name in the Prospectus constituting a part
thereof.
Very truly yours,
/s/ Randolf W. Katz
Randolf W. Katz
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-8 (Commission File
No. 333-94615) of our report dated March 31, 2000 appearing on page F-2 of the
EMB Corporation Annual Report on Form 10-KSB for the year ended September 30,
1999.
/s/ MCKENNON, WILSON & MORGAN, LLP.
-----------------------------------
Irvine, California
April 10, 2000
