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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 6, 1995
Registration Statement No. ______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HACH COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 42-0704420
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
5600 Lindbergh Drive, Loveland, Colorado 80537
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
HACH COMPANY 1995 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
Gary R. Dreher
Vice President and Chief Financial Officer
Hach Company
5600 Lindbergh Drive
Loveland, Colorado 80537
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(970) 669-3050
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Title Proposed Proposed
of Maximum Maximum Amount
Securities Amount Offering Aggregate of
to be To Be Price Per Offering Registration
Registered Registered Share (1) Price (1) Fee
---------- ---------- --------- --------- ------------
Common Stock 500,000 $15.00 $7,500,000 $2,198
$1.00 Par Shares
(1) Estimated solely for purposes of calculating the registration fee and
based on 85% of the average of the high and low prices as reported by
the NASDAQ National Market System on November 29, 1995.
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference into this registration
statement the following documents filed with the Securities and Exchange
Commission (the "Commission") (File Number 0-3947):
(a) The Company's Annual Report on Form 10-K filed pursuant to Section
13(a) of the Securities Exchange Act of 1934 as amended (the "Exchange Act") for
the fiscal year ended April 30, 1995;
(b) All other reports filed pursuant to Section 13(a) or 15(b) of the
Exchange Act since the end of the fiscal year covered by the Company's fiscal
year ended April 30, 1995; and
(c) The description of the Company's Common Stock is contained in the
Company's Registration Statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports and
documents. Any statement contained in a document incorporated herein by
reference 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 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 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Legal matters in connection with the securities offered hereby were passed upon
by McBride Baker & Coles, Chicago, Illinois. Lawyers in the firm other than
Robert O. Case participating in such matters do not beneficially own shares of
the Company's common stock. Mr. Case, Secretary and General Counsel of the
Company and Of Counsel to the firm beneficially owns 33,990 shares of the
Company's common stock.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is subject to the Delaware General Corporation Law. Delaware
law provides that officers and directors may receive indemnification from their
corporations for certain actual or threatened lawsuits. Delaware law sets out
the standard of conduct which the officers and directors must meet in order to
be indemnified, the parties who are to determine whether the standard has been
met, and the types of expenditures which will be indemnified. Delaware law
further provides that a corporation may purchase indemnification insurance, such
insurance providing indemnification for the officers and directors whether or
not the corporation would have the power to indemnify them against such
liability under the provisions of the Delaware law.
The Company's Certificate of Incorporation, as amended, and By-laws provide
that the Company will indemnify its officers and directors to the full extent
permitted by Delaware law. Furthermore, the Company is covered by insurance
which will reimburse it for certain amounts it is obligated to pay in lawsuits
involving officers and directors serving in such capacities in which the
damages, judgments, settlements, costs, charges or expenses incurred in
connection with the defense of the action, suit or proceeding are reimbursable
pursuant to law.
In addition to such other rights of indemnification as they may have as
directors, the Hach Company Employee Stock Purchase Plan (the "Plan") provides
that the members of the committee which administers the Plan shall be
indemnified by the Company against the reasonable expenses, including attorneys'
fees actually and necessarily incurred in connection with the defense of any
action, suit or proceeding, or in connection with any appeal therein, to which
they or any of them may be a party by reason of any action taken or failure to
act under or in connection with the Plan or any option granted thereunder, and
against all amounts paid by them in settlement thereof (provided such settlement
is approved by independent legal counsel selected by the Company) or paid by
them in satisfaction of a judgment in any such action, suit or proceeding,
except in relation to matters as to which it shall be adjudged in such action,
suit or proceeding that such committee member is liable for negligence or
misconduct in the performance of his duties; provided that within sixty days
after institution of any such action, suit or proceeding a committee member
shall in writing offer the Company the opportunity, at its own expense, to
handle and defend the same.
As permitted by Delaware law, the Company's Certificate of Incorporation
contains a provision limiting its directors' liability to the Company or its
stockholders for monetary damages. This provision provides that a director
shall not be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director except for liability: (i)
for a breach of the director's duty of loyalty (for example, in a situation
involving a conflict of interest); (ii) for actions
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or omissions in bad faith or involving intentional misconduct or a knowing
violation of law; (iii) for certain improper dividend transactions under Section
174 of the Delaware General Corporation Law; or (iv) for any transaction where a
director derives an improper personal benefit. This provision would not apply
to limit the liability of a director for activities performed as an officer of
the Company and, since applicable by its terms only to monetary damage
recoveries, would not limit the ability of the Company or its stockholders to
obtain injunctive or other non-pecuniary relief against any or all of the
directors of the Company. A provision of this type can be expected to limit the
ability of the Company or its stockholders to recover damages in the event a
director is negligent in the performance of his or her duties unless such
negligence involves any of the above-described four circumstances.
ITEM 8. EXHIBITS
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
4(a) Certificate of Incorporation of the Registrant (as
amended to date) (hereby incorporated by reference to
Exhibit (3)a. to the Registrant's Annual Report on Form
10-K for the year ended April 30, 1993, Commission File
No. 0-3947)
4(b) By-laws of the Registrant as amended (incorporated by
reference to Exhibit (3)b. to the Registrant's Annual
Report on Form 10-K for the year April 30, 1995,
Commission File No. 0-3947)
5 Opinion of Counsel regarding Legality
23(a) Consent of Counsel (contained in the opinion filed as
Exhibit 5 to this Registration Statement)
23(b) Independent Accountant's Consent
24 Power of Attorney (included on the signature page of
this Registration Statement)
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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:
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs 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.
(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 the 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
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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 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 again 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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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 Loveland, State of Colorado, on this 21st day of
November, 1995.
HACH COMPANY
By /s/ Kathryn Hach-Darrow
---------------------------------
Kathryn Hach-Darrow, Chairman and
Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below, in his or her capacity as an officer and/or director (as set forth below)
of Hach Company, a Delaware corporation (the "Corporation"), which is about to
file with the Securities and Exchange Commission (the "SEC"), Washington, D.C.,
under the provisions of the Securities Act of 1933 a Registration Statement on
Form S-8, for shares of common stock of the Corporation or other interests under
the Hach Company 1995 Employee Stock Purchase Plan (the "Plan"), hereby
constitutes and appoints Robert O. Case as his or her true and lawful attorney-
in-fact and agent, with full power to act for the undersigned and in the name,
place and stead of the undersigned, in any and all capacities, to sign, or cause
to be signed electronically, said Registration Statement and any and all
amendments to the aforementioned Registration Statement and to file said
Registration Statement and amendments thereto so signed with all exhibits
thereto, as well as to prepare, execute and file any and all other documents in
connection with such Plan with the SEC, all state securities authorities under
the blue sky and securities laws of the States of the United States of America,
and the NASDAQ market, hereby granting unto said attorney-in-fact and agent full
power and authority to do and perform any and all acts and things requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as the undersigned might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact may lawfully do or cause to be done by
virtue hereof.
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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/ Kathryn Hach-Darrow Chairman, Chief Executive November 21, 1995
- ------------------------- Officer, Director
Kathryn Hach-Darrow
/s/ Bruce J. Hach President, Chief Operating November 21, 1995
- ------------------------- Officer, Director
Bruce J. Hach
/s/ Gary R. Dreher Vice President and November 21, 1995
- ------------------------- Chief Financial Officer,
Gary R. Dreher Director
/s/ Linda O. Doty Director November 21, 1995
- -------------------------
Linda O. Doty
/s/ John N. McConnell Director November 21, 1995
- -------------------------
John N. McConnell
/s/ Joseph V. Schwan Director November 21, 1995
- -------------------------
Joseph V. Schwan
/s/ Fred W. Wenninger Director November 21, 1995
- -------------------------
Fred W. Wenninger
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EXHIBIT INDEX
Exhibit Number Description Page
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4(a) Certificate of Incorporation of the
Registrant (as amended to date)
(hereby incorporated by reference to
Exhibit (3)a. to the Registrant's
Annual Report on Form 10-K for the
year ended April 30, 1993,
Commission File No. 0-3947)
4(b) By-laws of the Registrant as amended
(incorporated by reference to Exhibit (3)b.
to the Registrant's Annual Report on Form 10-K
for the year April 30, 1995, Commission
File No. 0-3947)
5 Opinion of Counsel regarding Legality
23(a) Consent of Counsel (contained in the
opinion filed as Exhibit 5 to this
Registration Statement)
23(b) Independent Accountant's Consent
24 Power of Attorney (included on the
signature page of this Registration
Statement)
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EXHIBIT 5
December 6, 1995
Hach Company
5600 Lindbergh Drive
Loveland, Colorado 80537
Ladies and Gentlemen:
We have represented Hach Company (the "Company"), a Delaware corporation,
in connection with the preparation of a Registration Statement on Form S-8
("Registration Statement") under the Securities Act of 1933, as amended (the
"Act"), in connection with the registration under the Act of 500,000 shares (the
"Shares") of the Common Stock, par value $1.00 per share, of the Company to be
issued pursuant to the Hach Company 1995 Employee Stock Purchase Plan (the
"Plan").
In this connection, we have examined originals or copies identified to our
satisfaction of such documents, corporate and other records, certificates, and
other papers as we deemed necessary to examine for purposes of this Opinion,
including but not limited to the Certificate of Incorporation of the Company, as
amended, the By-Laws of the Company, as amended, resolutions of the Board of
Directors and shareholders of the Company, the Plan, and the form of prospectus
delivered to employee-participants in connection with the Plan.
It is our opinion that the Shares that may be issued to Plan participants,
when issued or sold in accordance with the Plan, will be validly issued, fully
paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and to our identification in the Registration Statement
as counsel who has passed on the legality of the Shares.
Very truly yours,
McBRIDE BAKER & COLES
By: /s/Michael J. Boland
--------------------------------
Michael J. Boland, A Partner
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Exhibit (23)(b)
[Coopers & Lybrand L.L.P. Letterhead]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Hach Company on Form S-8 of our report dated June 8, 1995 on our audits of the
consolidated financial statements of Hach Company and Subsidiaries as of April
30, 1995 and 1994, and for the years ended April 30, 1995, 1994, and 1993, which
report is included in the Hach Company Annual Report on Form 10-K for the
year ended April 30, 1995.
/s/ Coopers & Lybrand L.L.P.
Denver, Colorado
December 6, 1995
