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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 5, 1997
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 1983 STOCK OPTION PLAN
HACH COMPANY 1993 STOCK OPTION PLAN
(FULL TITLE OF THE PLANS)
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
---------- ---------- --------- --------- ------------
Class A Common Stock 726,250 $9.6875 $7,035,547 $2,132
$1.00 Par Value Per
Share
(1) Estimated solely for purposes of calculating the registration fee and based
on average of the high and low prices as reported by the NASDAQ National Market
System on November 3, 1997.
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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, 1997;
(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, 1997; and
(c) The description of the Company's Class A Common Stock as contained in
the Company's Registration Statement on Form 8-A filed under the Exchange Act on
September 10, 1997, 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 33,940 shares of the
Company's Common Stock and 33,940 shares of the Company's Class A Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is subject to the Delaware General Corporation Law ("DGCL").
Subsection (a) of Section 145 of the DGCL empowers a corporation to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not
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opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
SubSection (b) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 145 of DGCL further provides that to the extent a director,
officer, employee or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; that
indemnification provided for by Section 145 shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of such
person's heirs, executors and administrators; and empowers the corporation to
purchase and maintain insurance on behalf of a director, officer, employee or
agent of the corporation against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether or
not the corporation would have the power to indemnify him against such
liabilities under Section 145. The bylaws of the Registrant provides, in
substance that the Registrant will indemnify its directors and officers to the
full extent permitted by Section 145 of the DGCL.
Also, as permitted by the DGCL, Article 13 of the Registrant's Restated
Certificate of Incorporation eliminates the personal liability of each director
of the Registrant to the Registrant or its stockholders for monetary damages
arising out of or resulting from any breach of his fiduciary duty as a director,
except where such director (i) breached his duty of loyalty to the Registrant or
its stockholders, (ii) failed to act in good faith or engaged in intentional
misconduct or a knowing violation of the law, (iii) violated Section 174 of the
DGCL or (iv) obtained an improper personal benefit.
The Registrant maintains policies insuring its and its subsidiaries
officers and directors against certain liabilities for actions taken in such
capacities including, subject to certain exemptions, liabilities under the
Securities Act of 1933, as amended.
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 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
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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.
In addition to such other rights of indemnification as they may have as
directors, each of the Hach Company 1983 Stock Option Plan and the Hach Company
1993 Stock Option Plan (the "Plans") 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 amounts paid by them in
settlement thereof or paid by them in satisfaction of a judgment in any such
action, suit or proceeding.
ITEM 8. EXHIBITS
Exhibit Number Description
-------------- -----------
4(a) Restated 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) Certificate of Amendment to Article Fourth of the
Restated Certificate of Incorporation of the Registrant
as filed with the Delaware Surety of State on September
10, 1997 (hereby incorporated by reference to Exhibit
1.2 to the Company's Registration Statement on Form
8-A, Commission File No. 0-3947, as filed with the
Commission on September 10, 1997).
4(c) 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, 1996,
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
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:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(b) to reflect in the prospectus any facts or events arising after the
effective date of this 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 this Registration Statement. 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 reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
promulgated under the Securities Act if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(c) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement,
or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (1)(a) and (1)(b) do not apply if
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 15(d) of the Exchange Act of
1934, as amended (the "Exchange Act"), that are incorporated by
reference in the Registration Statement;
(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;
(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; and
(4) that, for purposes of determining any liability under the Securities
Act, each filing of the Registrant'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 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.
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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 4th day of
November, 1997.
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 Class A Common Stock of the Corporation or other
interests under the Hach Company 1983 Stock Option Plan and the Hach Company
1993 Stock Option Plan (the "Plans"), hereby constitutes and appoints Kathryn
Hach-Darrow, Bruce J. Hach and Robert O. Case, and each of them, each with the
full power of substitution and re-substitution, 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 Plans 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 Stock 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 4, 1997
- ------------------------- Officer, Director
Kathryn Hach-Darrow
/s/ Bruce J. Hach President, Chief Operating November 4, 1997
- ------------------------- Officer, Director
Bruce J. Hach
/s/ Gary R. Dreher Vice President and November 4, 1997
- ------------------------- Chief Financial Officer, Director
Gary R. Dreher
/s/ Linda O. Doty Director November 4, 1997
- -------------------------
Linda O. Doty
/s/ John N. McConnell Director November 4, 1997
- -------------------------
John N. McConnell
/s/ Joseph V. Schwan Director November 4, 1997
- -------------------------
Joseph V. Schwan
/s/ Fred W. Wenninger Director November 4, 1997
- -------------------------
Fred W. Wenninger
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EXHIBIT INDEX
Exhibit Number Description Page
- -------------- ----------- ----
4(a) Restated 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) Certificate of Amendment to Article
Fourth of the Restated Certificate of
Incorporation of the Registrant as filed
with the Delaware Surety of State on
September 10, 1997 (hereby incorporated
by reference to Exhibit 1.2 to the Company's
Registration Statement in Form 8-A,
Commission File No. 0-3947, as filed with
the Commission on September 10, 1997).
4(c) 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, 1997, 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
[McBride Baker & Coles Letterhead]
November 4, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Ladies and Gentlemen:
We are counsel to Hach Company a Delaware corporation (the "Company"). The
Company is filing 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 726,250 shares (the "Shares")
of the Class A Common Stock, par value $1.00 per share, of the Company to be
issued pursuant to awards under the Company's 1983 and 1993 Stock Option Plans
(the "Plans").
Assuming the Registration Statement is filed with and accepted by the
Securities and Exchange Commission, the Shares, when issued and paid for in
accordance with the Plans, will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to our firm under the heading "Legal
Opinions" in the Registration Statement.
Very truly yours,
/s/ McBride Baker & Coles
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Exhibit 23
[Coopers & Lybrand LLP Letterhead]
Consent of Independent Accountants
We consent to the incorporation by reference in the Registration Statement of
Hach Company and Subsidiaries on Form S-8 of our report dated June 26, 1997 on
our audits of the consolidated financial statements of Hach Company and
Subsidiaries as of April 30, 1997 and 1996, and for the years ended April 30,
1997, 1996 and 1995, which report is included in the Annual Report on Form 10-K.
/s/ Coopers & Lybrand LLP
Denver, Colorado
November 3, 1997
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