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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 11, 1995
Registration Statement No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
INSTRON CORPORATION
(Exact name of Registrant as specified in its charter)
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<S> <C>
MASSACHUSETTS 04-2057203
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
100 ROYALL STREET
CANTON, MA 02021
(Address of principal executive offices)
INSTRON CORPORATION
1979 NON-QUALIFIED STOCK OPTION
AND STOCK APPRECIATION RIGHTS PLAN
(Full title of the Plan)
-------------------------------
JAMES M. MCCONNELL
President and Chief Executive Officer
INSTRON CORPORATION
100 Royall Street
Canton, MA 02021
(Name and address of agent for service)
(617) 828-2500
(Telephone number, including area code, of agent for service)
----------------------------
Copy to:
RAYMOND C. ZEMLIN, P.C.
GOODWIN, PROCTER & HOAR
Exchange Place
53 State Street
Boston, Massachusetts 02109
(617) 570-1000
----------------------------
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CALCULATION OF REGISTRATION FEE
<CAPTION>
===========================================================================================================================
Proposed Maximum Amount of
Title of Securities to be Amount to be Offering Price Proposed Maximum Registration Fee
Registered Registered (1) Per Share Aggregate Offering Price
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 366,697 $10.09 (2) $3,699,972.73 $1,275.86
$1.00 par value 85,153 $11.69 (3) $ 995,438.57 $ 343.26
TOTAL 451,850 -- $4,695,411.30 $1,619.12
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<FN>
(1) This registration statement also relates to such indeterminate number
of additional shares of Common Stock of the Registrant as may be
issuable as a result of a stock dividend, stock split, split-up,
recapitalization or other similar event.
(2) This estimate is made pursuant to Rule 457(h) under the Securities Act
of 1933, as amended (the Securities Act), solely for the purpose of
determining the registration fee and is based upon the weighted average
price at which outstanding options may be exercised.
(3) This estimate is made pursuant to Rule 457(c) and (h) under the
Securities Act, solely for purposes of determining the registration fee
and is equal to the average of the high and low sales prices of the
Common Stock as reported on the American Stock Exchange on the close of
business on August 8, 1995.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Instron Corporation (the "Company") hereby incorporates by reference
the documents listed in (a) through (c) below, which have previously been filed
with the Securities and Exchange Commission:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994, filed with the
Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 1994;
and
(c) The description of the Company's common stock, $1.00
par value, contained in the Company's Registration
Statement on Form 8-A, as amended, filed with the
Securities and Exchange Commission pursuant to
Section 12 of the Exchange Act.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Company pursuant to Sections 13(a) and 13(c), Section
14 and Section 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered hereunder 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 a part hereof
from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
subsequently filed document which also is incorporated or deemed to be
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 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 67 of Chapter 156B of the General Laws of the Commonwealth of
Massachusetts allows indemnification of directors and officers to the extent
authorized by (i) the articles of organization or (ii) a by-law adopted by the
stockholders or (iii) a vote adopted by the holders of a majority of the shares
of stock entitled to vote on the election of directors. The statute prohibits,
however, indemnification of a director or officer who has been adjudicated in
any proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interest of the Company or to the extent that such matter
relates to service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan.
Section 67 further provides that a corporation has the power to purchase and
maintain insurance policies on behalf of any person who is or was an officer or
director against liability incurred by him in such capacity or arising out of
his status as such, whether or not the Company has the power to indemnify such
officer or director against such liability.
Article 6A of the Restated Articles of Organization of Instron provides
that its directors and officers shall be indemnified by the Company against all
expenses incurred in connection with service for or on behalf of the Company.
However, no indemnification shall be provided in any proceeding in which it was
adjudicated that the officer did not act in good faith in the reasonable belief
that his action was in the best interests of the Company. In the event that a
proceeding is compromised or settled so as to impose liability on an officer or
the Company, the officer shall not be indemnified if the Company obtains an
opinion of counsel that the officer did not act in good faith in the reasonable
belief that his action was in the best interests of the Company. Such
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rights to indemnification do not limit any other rights to indemnification
acquired under any statute, agreement or otherwise.
In addition, Article 6H of the Company's Restated Articles of
Organization provides that no director shall be personally liable for monetary
damages to the Company or its stockholders for breach of fiduciary duty as a
director except (i) for any breach of loyalty, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Sections 61 or 62 of Chapter 156B of the General Laws of the
Commonwealth of Massachusetts, or (iv) with respect to any transaction from
which the director derived an improper personal benefit.
Instron has purchased directors' and officers' liability insurance
which insures against certain losses arising from claims against directors or
officers of the Company by reason of certain acts, including a breach of duty,
neglect, error, misstatement, misleading statement, omission or other act done
or wrongfully attempted or any of the foregoing so alleged by any claimant or
any claim against an officer or director of the Company solely by reason of his
being such an officer or director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
(a) The following is a complete list of exhibits filed or
incorporated by reference as part of this registration statement.
<CAPTION>
Exhibit
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4.1 Restated Articles of Organization, as amended.*
4.2 By-laws, as amended.**
4.3 Instron Corporation 1979 Non-Qualified Stock Option and Stock
Appreciation Rights Plan, as amended.***
5 Opinion of Goodwin, Procter & Hoar as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar (included in Exhibit 5 hereto).
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included on the signature page of this
Registration Statement).
- -----------------------
<FN>
* Incorporated by reference to Exhibit 3(a) of the Company's
Form 10-K for the year ended December 31, 1981, Exhibit 4 of
the Company's Form 10-Q for the quarter ended March 31,
1984, Exhibit 4 of the Company's Form 10-Q for the quarter
ended June 28, 1986, and Exhibit 4 of the Company's Form
10-Q for the quarter ended June 27, 1987.
** Incorporated by reference to the Company's Form 8-K filed
with the Securities and Exchange Commission on October 5,
1990.
*** Incorporated by reference to the Company's Proxy Statements
prepared in connection with the Company's Annual Meeting of
Stockholders, and filed with the Securities and Exchange
Commission, for the years 1979, 1980, 1988 and 1991.
</TABLE>
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;
(ii) To reflect in the prospectus
any facts or events arising
after the effective date
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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; and
(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) herein do not apply if the information
required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the
undersigned registrant pursuant to Section 13 or
Section 15(d) of 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; and
(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, 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.
(c) Insofar as indemnification for liabilities arising
under the Securities Act 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 Securities 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 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, as amended,
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 Town of Canton, Commonwealth of Massachusetts, on this
10th day of August, 1995.
INSTRON CORPORATION
By: /s/ James M. McConnell
-------------------------------------
James M. McConnell,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the date indicated.
Each person whose signature appears below constitutes and appoints
James M. McConnell and Linton A. Moulding, and each of them, as his true and
lawful attorney-in-fact and agent, with full power of substitution, for him and
in his name, place and stead, in any and all capacities to sign any or all
amendments or post-effective amendments to this registration statement, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute, may lawfully do or cause to be done by virtue hereof.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ James M. McConnell President, Chief Executive August 10, 1995
- ---------------------------------- Officer and Director
James M. McConnell (Principal Executive Officer)
/s/ Linton A. Moulding Chief Financial Officer August 10, 1995
- ---------------------------------- (Principal Financial and
Linton A. Moulding Accounting Officer)
/s/ Harold Hindman Chairman of the Board August 10, 1995
- ---------------------------------- of Directors
Harold Hindman
/s/ George S. Burr Vice Chairman of the Board August 10, 1995
- ---------------------------------- of Directors
George S. Burr
/s/ Nicholas J. Grant Director August 10, 1995
- ----------------------------------
Dr. Nicholas J. Grant
/s/ Richard W. Young Director August 10, 1995
- ----------------------------------
Dr. Richard W. Young
/s/ John W. Lacey Director August 10, 1995
- ----------------------------------
John W. Lacey
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<S> <C> <C>
/s/ Dennis J. Moore Director August 10, 1995
- ----------------------------------
Dennis J. Moore
/s/ Sheldon Rutstein Director August 10, 1995
- ----------------------------------
Sheldon Rutstein
/s/ John F. Smith Director August 10, 1995
- ----------------------------------
John F. Smith
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<TABLE>
EXHIBIT INDEX
<CAPTION>
Exhibit No. Description Page
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<S> <C> <C>
4.1 Restated Articles of Organization, as amended.*
4.2 By-laws, as amended.**
4.3 Instron Corporation 1979 Non-Qualified Stock Option
and Stock Appreciation Rights Plan, as amended.***
5 Opinion of Goodwin, Procter & Hoar as to the
legality of the securities being registered.
23.1 Consent of Goodwin, Procter & Hoar (included in
Exhibit 5 hereto).
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included on the signature page of
this Registration Statement).
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<FN>
* Incorporated by reference to Exhibit 3(a) of the
Company's Form 10-K for the year ended December 31,
1981, Exhibit 4 of the Company's Form 10-Q for the
quarter ended March 31, 1984, Exhibit 4 of the
Company's Form 10-Q for the quarter ended June 28,
1986, and Exhibit 4 of the Company's Form 10-Q for
the quarter ended June 27, 1987.
** Incorporated by reference to the Company's Form 8-K
filed with the Securities and Exchange Commission on
October 5, 1990.
*** Incorporated by reference to the Company's Proxy
Statements prepared in connection with the Company's
Annual Meeting of Stockholders, and filed with the
Securities and Exchange Commission, for the years
1979, 1980, 1988 and 1991.
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EXHIBIT 5
[LETTERHEAD]
August 11, 1995
Instron Corporation
100 Royall Street
Canton, Massachusetts 02021
Re: Instron Corporation 1979 Non-Qualified Stock Option
---------------------------------------------------
and Stock Appreciation Rights Plan
----------------------------------
Dear Ladies and Gentlemen:
This opinion is furnished in connection with the registration pursuant
to the Securities Act of 1933, as amended (the "Act"), of 451,850 shares (the
"Shares") of Common Stock, par value $1.00 per share (the "Common Stock"), of
Instron Corporation (the "Company") which may be issued pursuant to awards
granted under the Company's 1979 Non-Qualified Stock Option and Stock
Appreciation Rights Plan (the "Plan").
We have acted as counsel to the Company in connection with the
registration of the Shares under the Act. We have examined the Restated Articles
of Incorporation and the By-laws of the Company, each as amended to date; such
records of the corporate proceedings of the Company as we have deemed necessary;
a Registration Statement on Form S-8 under the Act relating to the Shares (the
"Registration Statement"); and such other certificates, receipts, records and
documents as we have considered necessary for the purposes of this opinion.
We are attorneys admitted to practice in the Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America and the Commonwealth of
Massachusetts.
Based upon the foregoing, we are of the opinion that upon the issuance
and delivery of, and payment for, the Shares in accordance with the terms of the
Registration Statement, the Plan and the option agreements under the Plan, the
Shares will be legally issued, fully paid and non-assessable shares of the
Company's Common Stock.
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[LETTERHEAD]
Instron Corporation
August 11, 1995
Page 2
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Act and applicable requirements of state laws
regulating the offer and sale of securities. The foregoing further assumes that
the purchase price paid for the Shares is in excess of the par value thereof.
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR
-----------------------------
GOODWIN, PROCTER & HOAR
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
To the Directors and Stockholders
of Instron Corporation
We consent to the incorporation by reference in the Registration Statement
of Instron Corporation on Form S-8 of our reports dated February 24, 1995, on
our audits of the consolidated financial statements and financial statement
schedule of Instron Corporation as of December 31, 1994 and 1993, and for the
years ended December 31, 1994, 1993 and 1992 which reports are incorporated by
reference in the Company's 1994 Annual Report on Form 10-K.
/s/ COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
August 10, 1995
