As filed with the Securities and Exchange Commission on July 9, 1998
Registration No. ______
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
MODERN CONTROLS, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA 41-0903312
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7500 BOONE AVENUE NORTH
MINNEAPOLIS, MINNESOTA 55428
(Address of Principal Executive Offices) (Zip Code)
-----------------------
MODERN CONTROLS, INC.
1998 STOCK OPTION PLAN
(Full title of the plan)
-----------------------
RONALD A. MEYER
VICE PRESIDENT -- FINANCE AND ADMINISTRATION,
TREASURER AND SECRETARY
MODERN CONTROLS, INC.
7500 BOONE AVENUE NORTH
MINNEAPOLIS, MINNESOTA 55428
(Name and address of agent for service)
(612) 493-6370
(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 AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED (1) PRICE PER SHARE (2) PRICE (2) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.10 per share 400,000 shares $6.875 $2,750,000 $812.00
==================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate number of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee, the calculations are on the basis of the average high and
low reported sales prices of the Registrant's Common Stock on July 7 1998,
as reported by the Nasdaq National Market.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Modern Controls, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference in this Registration Statement: (1) Annual Report on
Form 10-K for the year ended December 31, 1997 (File No. 0-9273); (2) Quarterly
Report on Form 10-Q for the quarter ended March 31, 1998 (File No. 0-9273); (3)
all other reports filed by the Company pursuant to Sections 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since
December 31, 1997, and (4) the description of the Company's Common Stock
contained in its Registration Statement on Form 8-A (File No. 0-9273), including
any amendments or reports filed for the purpose of updating such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all shares of Common Stock offered pursuant to this
Registration Statement have been sold or that de-registers all shares of Common
Stock 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.
The consolidated financial statements of the Company incorporated
by reference in this Registration Statement have been audited by KPMG Peat
Marwick LLP, independent certified public accountants for the periods indicated
in their report thereon which is incorporated by reference in the Company's
Annual Report on Form 10-K for the year ended December 31, 1997. Such
consolidated financial statements have been incorporated herein by reference in
reliance upon the report of KPMG Peat Marwick LLP, given on the authority of
that firm as experts in accounting and auditing. To the extent that KPMG Peat
Marwick LLP audits and reports on the consolidated financial statements of the
Company issued at future dates, and consents to the use of their report thereon,
such consolidated financial statements will also be incorporated by reference in
the Registration Statement in reliance upon their report and said authority as
experts.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The Company's Common Stock to be offered pursuant
to this Registration Statement has been registered under Section 12 of the
Exchange Act as described in Item 3 of this Part II.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 302A.521 of the Minnesota Business Corporation Act
provides that a Minnesota business corporation shall indemnify any director,
officer, employee or agent of the corporation made or threatened to be made a
party to a proceeding, by reason of the former or present official capacity (as
defined) of the person, against judgments, penalties, fines, settlements and
reasonable expenses incurred by the person in connection with the proceeding if
certain statutory standards are met. "Proceeding"
<PAGE>
means a threatened, pending or completed civil, criminal, administrative,
arbitration or investigative proceeding, including one by or in the right of the
corporation. Section 302A.521 contains detailed terms regarding such right of
indemnification and reference is made thereto for a complete statement of such
indemnification rights.
Article IV of the Company's Restated Articles of Incorporation
provides that the Company shall, without condition or limitation, indemnify its
present and former directors, officers, employees and agents to the fullest
extent permitted by the Minnesota Business Corporation Act. In addition, Article
V of the Company's Restated Articles of Incorporation, as amended, limits the
personal liability of its directors to the fullest extent permitted by the
Minnesota Business Corporation Act. The Company also maintains directors' and
officers' liability insurance.
The foregoing represents a summary of the general effect of the
Minnesota Business Corporation Act and the Company's Articles of Incorporation
for purposes of general description only.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
No securities are to be offered or resold pursuant to this
Registration Statement.
ITEM 8. EXHIBITS.
EXHIBIT NO.
- -----------
4.1 Composite Copy of Restated Articles of Incorporation of the
Company, effective June 8, 1994, reflecting amendments effective
July 23, 1987, June 28, 1991 and May 21, 1998 (Filed herewith
electronically)
5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly LLP (Filed
herewith electronically)
23.1 Consent of Oppenheimer Wolff & Donnelly LLP (Included in Exhibit
5.1)
23.2 Consent of KPMG Peat Marwick LLP (Filed herewith electronically)
24.1 Power of Attorney (Included on page II-5 of this Registration
Statement)
99.1 Modern Controls, Inc. 1998 Stock Option Plan (Incorporated by
reference to Company's Definitive Proxy Statement on Form 14A
filed with the Commission on March 30, 1998 (File No. 0-9273))
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
<PAGE>
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the 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) under the Securities Act of 1933 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.
(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 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 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 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.
(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 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, as amended (the "Act"), may be permitted
to directors, officers and controlling persons of the registrant
pursuant to the foregoing previsions, 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 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
<PAGE>
is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
<PAGE>
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 of 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 Minneapolis, State of Minnesota, on July 9, 1998.
MODERN CONTROLS, INC.
By: /s/ Ronald A. Meyer
------------------------------------------
Ronald A. Meyer
Vice President Finance and Administration,
Secretary and Treasurer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints William N. Mayer and Ronald A. Meyer, and each of them,
as such person's true and lawful attorney-in-fact and agent, each with full
powers of substitution and re-substitution, for such person and in such person's
name, place and stead, in any and all capacities, to sign any or all amendments
(including 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 or necessary to be done in and about the premises,
as fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on July 9, 1998 by the following persons
in the capacities indicated.
SIGNATURE TITLE
- --------- -----
/s/ William N. Mayer Chairman, Chief Executive Officer (Principal
- ------------------------- Executive Officer) and Director
William N. Mayer
/s/ Robert L. Demorest President and Director
- -------------------------
Robert L. Demorest
/s/ Ronald A. Meyer Vice President -- Finance and Administration,
- ------------------------- Treasurer and Secretary (Principal Financial and
Ronald A. Meyer Accounting Officer)
/s/ Daniel W. Mayer Executive Vice President
- -------------------------
Daniel W. Mayer
/s/ Richard A. Proulx Director
- -------------------------
Richard A. Proulx
/s/ Paul L. Sjoquist Director
- -------------------------
Paul L. Sjoquist
Director
- -------------------------
Dean B. Chenoweth
Director
- -------------------------
J. Leonard Frame
/s/ Thomas C. Thomas Director
- -------------------------
Thomas C. Thomas
<PAGE>
INDEX TO EXHIBITS
NO. ITEM METHOD OF FILING
- --- ---- ----------------
4.1 Composite Copy of Restated Articles of
Incorporation of the Company, effective
June 8, 1994, reflecting amendments
effective July 23, 1987, June 28, 1991
and May 21, 1998....................... Filed herewith electronically.
5.1 Opinion and Consent of Oppenheimer Wolff
& Donnelly LLP......................... Filed herewith electronically.
23.1 Consent of Oppenheimer Wolff & Donnelly
LLP.................................... Included in Exhibit 5.1.
23.2 Consent of KPMG Peat Marwick LLP....... Filed herewith electronically.
24.1 Power of Attorney...................... Included on page II-5 of this
Registration Statement.
99.1 Modern Controls, Inc. 1998 Stock Option
Plan................................... Incorporated by reference to
Company's Definitive Proxy
Statement on Form 14A filed
with the Commission on March
30, 1998 (File No. 0-9273)
EXHIBIT 4.1
COMPOSITE COPY OF MODERN CONTROLS, INC.
RESTATED ARTICLES OF INCORPORATION,
EFFECTIVE JUNE 8, 1994, REFLECTING
AMENDMENTS EFFECTIVE JULY 23, 1987, JUNE
28, 1991 AND MAY 21, 1998.
CERTIFICATE OF RESTATED
ARTICLES OF INCORPORATION OF
MODERN CONTROLS, INC.
ARTICLE I.
NAME AND REGISTERED OFFICE
1.01. NAME. The name of this Corporation is Modern Controls, Inc.
1.02. REGISTERED OFFICE. The registered office of this Corporation is
located at 7500 Boone Avenue North, Minneapolis, Minnesota 55428.
1.03. SCOPE AND DATE. These Restated Articles of Incorporation
supersede the previously existing articles of incorporation and all amendments
thereto in their entirety. These Restated Articles of Incorporation were adopted
by the shareholders on May 29, 1984.
ARTICLE II.
SHARES AND SHAREHOLDERS
The aggregate number of shares of stock which the Corporation shall
have authority to issue is Twenty Five Million (25,000,000) shares, consisting
of Twenty-Two Million (22,000,000) shares of common stock, $0.10 par value per
share (the "Common Stock"), and Three Million (3,000,000) shares undesignated as
to series (the "Undesignated Stock"). The Board of Directors is authorized to
establish, from the authorized shares of Undesignated Stock, one or more classes
or series of shares, to designate each such class and series, and to fix the
rights and preferences of each such class and series. Without limiting the
authority of the Board of Directors granted hereby, each such class or series of
Undesignated Stock shall have such voting powers (full or limited or no voting
powers), such preferences and relative, participating, optional or other special
rights, and such qualifications, limitations or restrictions as shall be stated
and expressed in the resolution or resolutions providing for the issue of such
class or series of Undesignated Stock as may be adopted from time to time by the
Board of Directors prior to the issuance of any shares thereof. Except as
provided in the resolution or resolutions of the Board of Directors creating any
series of Undesignated Stock, the shares of Common Stock shall have the
exclusive right to vote for the election and removal of directors and for all
other purposes; no shareholder of the Corporation shall have any preemptive
rights; and no shareholder shall be entitled to any cumulative voting rights.
Each holder of Common Stock shall be entitled to one vote for each share held.
ARTICLE III.
BOARD ACTION WITHOUT MEETING
An action required or permitted to be taken by the board of directors
of this Corporation may be taken by written action signed by that number of
directors that would be required to take the same action at a meeting of the
board at which all directors are present, except as to those matters requiring
<PAGE>
shareholder approval, in which case the written action must be signed by all
members of the board of directors then in office.
ARTICLE IV.
INDEMNIFICATION AND ADVANCES
4.01. MANDATORY INDEMNIFICATION AND ADVANCES. This Corporation shall
indemnify its present and former directors, officers, employees, and agents, and
shall pay or reimburse such persons their reasonable expenses, including
attorneys' fees and disbursements, incurred by such person or persons in advance
of the final disposition of certain proceedings, as defined by Minn. Stat. ss.
302A.521, as amended or as it may be amended from time to time hereafter all in
the manner, for the purposes, and to the fullest extent allowed or allowable by
the Minnesota Business Corporation Act, Minnesota Statutes Chapter 302A, as
amended or as it may be amended from time to time hereafter.
4.02. NO LIMITATION ON OBLIGATION. This Article IV shall in no way be
deemed to be a prohibition, condition or limitation, within the meaning of Minn.
Stat. ss. 302A.521, subd. 4 or 5, as amended or as it may be amended from time
to time hereafter, or otherwise, or to in any way operate as such, of the
obligation of this Corporation to indemnify its present or former directors,
officers, employees, or agents, or to pay to or to reimburse such persons for
reasonable expenses, including attorneys' fees and disbursements, incurred by
such person or persons in connection with a proceeding, as defined above,
pursuant to Minn. Stat. ss. 302A.521, as amended or as it may be amended from
time to time hereafter.
4.03. INSURANCE. This Corporation may purchase and maintain insurance
on behalf of a person in that person's official capacity, as defined by Minn.
Stat. ss. 302A.521, as amended or as it may be amended from time to time
hereafter, against any liability asserted against and incurred by the person in
or arising from that capacity, whether or not the Corporation would have been
required to indemnify the person against the liability under the provisions of
Minn. Stat. ss. 302A.521, as amended or as it may be amended from time to time
hereafter.
ARTICLE V.
LIMITATION OF DIRECTOR LIABILITY
A director of the corporation shall not be personally liable to the
corporation as a director to the extent permitted by applicable law. If the
Minnesota Business Corporation Act hereafter is amended to authorize further
elimination or limitation of the liability of directors, then the liability of a
director to the corporation, in addition to the limitation on personal liability
provided herein, shall be limited to the fullest extent permitted by the amended
Minnesota Business Corporation Act. Any repeal or modification of this Article
by the shareholders of the corporation shall be prospective only and shall not
adversely affect any limitation on the personal liability of a director of the
corporation existing at the time of such repeal or modification.
(OPPENHEIMER WOLFF & DONNELLY LLP)
EXHIBIT 5.1
July 9, 1998
Modern Controls, Inc.
7500 Boone Avenue North
Minneapolis, MN 55428
RE: Registration Statement on Form S-8
1998 Stock Option Plan
Ladies and Gentlemen:
We have acted as counsel to Modern Controls, Inc., a Minnesota
corporation (the "Company"), in connection with the registration by the Company
of 400,000 shares (the "Shares") of its common stock, $0.10 par value (the
"Common Stock"), pursuant to the Company's Registration Statement on Form S-8
for the Company's 1998 Stock Option Plan (the "Plan") to be filed with the
Securities and Exchange Commission on July 9, 1998 (the "Registration
Statement").
In acting as counsel for the Company and arriving at the opinions
expressed below, we have examined and relied upon originals or copies, certified
or otherwise identified to our satisfaction, of such records of the Company,
agreements and other instruments, certificates of officers and representatives
of the Company, certificates of public officials and other documents as we have
deemed necessary or appropriate as a basis for the opinions expressed herein.
In connection with our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents tendered to us as originals,
the legal capacity of natural persons and the conformity to original documents
of all documents submitted to us as certified or photostatic copies.
Based on the foregoing, and subject to the qualifications and
limitations set forth herein, it is our opinion that:
1. The Company has the corporate authority to issue the Shares in
the manner and under the terms set forth in the Registration
Statement.
2. The Shares have been duly authorized and, when issued,
delivered and paid for in accordance with the Plan referred to
in the Registration Statement, will be validly issued, fully
paid and nonassessable.
We express no opinion with respect to laws other than the State of
Minnesota and the federal laws of the United States of America, and we assume no
responsibility as to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to its use as part of the Registration Statement.
<PAGE>
Modern Controls, Inc.
July 9, 1998
Page 2
We are furnishing this opinion to the Company solely for its benefit in
connection with the Registration Statement as described above. It is not to be
used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
/s/ OPPENHEIMER WOLFF & DONNELLY LLP
EXHIBIT 23.2
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' CONSENT
The Board of Directors
Modern Controls, Inc.:
We consent to the use of our reports incorporated herein by reference and the
references to our firm under the heading "Item 3. Incorporation of Documents by
Reference." included in the prospectus.
/s/ KPMG Peat Marwick LLP
Minneapolis, Minnesota
July 9, 1998
