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As filed with the Securities and Exchange Commission on September 4, 1997
Registration No. 333-06029
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------
NEW BRUNSWICK SCIENTIFIC CO., INC.
(Exact name of registrant as specified in its charter)
---------------
New Jersey
(State or other Jurisdiction of 22-1630072
incorporation or organization) (I.R.S. Employer Identification No.)
44 Talmadge Road, P.O. Box 4005
Edison, New Jersey 08818-4005
(732) 287-1200
(Address, including zip code, including area code,
of registrant's principal executive offices)
New Brunswick Scientific Co., Inc.
1989 STOCK OPTION PLAN FOR NONEMPLOYEE DIRECTORS
(Full title of the plan)
Ezra Weisman, President
44 Talmadge Road, P.O. Box 4005
Edison, New Jersey 08818-4005
(732) 287-1200
(Name, Address, including zip code and telephone number
including area code, of agent for service)
-------------------
Copies to:
Peter D. Hutcheon, Esq.
Norris, McLaughlin & Marcus
A Professional Corporation
721 Route 202-206
P.O. Box 1018
Somerville, NJ 08876-1018
(908) 722-0700
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CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) Per Share (2) Price (3) Fees
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,$.0625 par value per Share 100,000 $7.00 $700,000 $212.12
shares
- -----------------------------------------------------------------------------------------------------------------------------
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit
plan(s) described herein. This amendment solely increases the amount of
registered shares from 114,980 to 214,980 shares.
(2) Based upon last reported sale price on the over-the-counter-market, as
quoted on NASDAQ on August 29, 1997.
(3) The price is estimated in accordance with Rule 457(h)(1) under the
Securities Act of 1933, as amended, solely for the purpose of
calculating the registration fee and is the product resulting from
multiplying 100,000, the number of additional shares registered by this
Amendment No. 1 to the Registration Statement by $7.00 per share, the
average exercise price of such options.
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TABLE OF CONTENTS
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Item 1. Plan Information....................................................................................... *
Item 2. Registrant Information and Plan Annual Information..................................................... *
Item 3. Incorporation of Documents by Reference................................................................ 3
Item 4. Description of Securities............................................................................. **
Item 5. Interests of Named Experts and Counsel................................................................ **
Item 6. Indemnification of Directors and Officers............................................................. **
Item 7. Exemption from Registration Claimed................................................................... **
Item 8. Exhibits............................................................................................... 3
Item 9. Undertakings.......................................................................................... **
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* Separately given to participants. Pursuant to the rules for filing a
Registration Statement on Form S-8, such information is contained in a
document which does not constitute a part of this Registration
Statement but which shall, together with the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II
hereof, constitute a prospectus under Section 10(a) of the Securities
Act of 1933.
** The contents of New Brunswick Scientific Co., Inc,'s Registration
Statement on Form S-8, Registration #333-06029, are incorporated herein
by reference.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Omitted.
Item 2. Registrant Information and Plan Annual Information
Omitted.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
THE CONTENTS OF NEW BRUNSWICK SCIENTIFIC CO., INC.'s REGISTRATION
STATEMENT ON FORM S-8, REGISTRATION #333-06029 ARE INCORPORATED HEREIN BY
REFERENCE.
The following documents filed by New Brunswick Scientific Co.,
Inc. (the "Company") with the Commission are also incorporated herein by
reference:
(a) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, and June 30, 1997;
(b) The Company's Annual Report on Form 10-K for the year
ended December 31, 1996; and
(c) The material under the caption "Capital Stock to be
Registered" in the Company's Registration Statement
on Form 8-A under Section 12(g) of the Securities
Exchange Act of 1934 filed with the Commission on
April 13, 1973, which incorporates by reference the
information under "Common Stock" in the prospectus
constituting a part of the Company's Registration
Statement on Form S-1, as amended and effective on
March 14, 1972 (File No. 2-42505).
In addition to the foregoing, all documents subsequently filed
by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment
indicating that all of the 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 part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated by reference in this Registration Statement 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 subsequently filed document that is
also incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 8. Exhibits
4(a) New Brunswick Scientific Co., Inc. 1989 Stock Option
Plan for Nonemployee Directors
4(b) Form of Stock Option Agreement under Stock Option
Plan
*4(c) 1997 Amendment to New Brunswick Scientific Co., Inc.
1989 Stock Option Plan for Nonemployee Directors
*5 Opinion of Norris, McLaughlin & Marcus, P.A.
*23(a) Consent of KPMG Peat Marwick, LLP
23(b) Consent of Norris, McLaughlin & Marcus, P.A.
(included in Exhibit 5)
24 Power of Attorney (included on signature page)
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*Filed herewith
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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 Township of Edison, State of New Jersey on the 3rd day
of September, 1997.
NEW BRUNSWICK SCIENTIFIC CO., INC.
By: /s/ Ezra Weisman
------------------------------
Ezra Weisman, President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David Freedman and Ezra Weisman, and
either of them (with full power in each to act alone), his true and lawful
attorneys-in-fact, with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registrant Statement, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each 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 that all said attorneys-in-fact, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
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 below.
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<S> <C> <C>
/s/ David Freedman Chairman of the Board August 26, 1997
- ------------------------------ and Director
David Freedman
/s/ Ezra Weisman President, Chief August 26, 1997
- ------------------------------ Executive Officer,
Ezra Weisman and Director
/s/ Sigmund Freedman Treasurer and August 26, 1997
- ------------------------------ Director
Sigmund Freedman
/s/ Samuel Eichenbaum Chief Financial August 26, 1997
- ------------------------------ Officer
Samuel Eichenbaum and Vice President,
Finance
- ------------------------------ Director ______ __, 1997
Bernard Leon
/s/ Kiyoshi Masuda Director August 26, 1997
- ------------------------------
Kiyoshi Masuda
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<S> <C> <C>
/s/ Ernest Gross Director August 26, 1997
- -------------------------------
Ernest Gross
/s/ Martin Siegel Director August 26, 1997
- -------------------------------
Martin Siegel
/s/ David Pramer Director August 26, 1997
- -------------------------------
Dr. David Pramer
/s/ Marvin Weinstein Director August 26, 1997
- -------------------------------
Dr. Marvin Weinstein
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NEW BRUNSWICK SCIENTIFIC CO., INC.
1989 STOCK OPTION PLAN
FOR
NONEMPLOYEE DIRECTORS
1. Purpose
The New Brunswick Scientific Co., Inc. 1989 Stock Option Plan for
Nonemployee Directors (the "Plan") is intended to enable New Brunswick
Scientific Co., Inc. (the "Company") to attract and retain experienced and
qualified independent directors and to provide them with incentives to promote
the best interests of the Company by enabling and encouraging them, through the
grant of nonqualified stock options (the "Options") to acquire Company stock.
As used in the Plan, the term "nonqualified stock options" means
options which are not intended to qualify as incentive stock options under
Section 422A of the Internal Revenue Code of 1986. as amended from time to time
(the "Code"). The term "related corporation" means any corporation which is a
"subsidiary corporation" of the Company as defined in Section 425(f) of the
Code.
2. Administration
Except as otherwise provided below, the Plan shall be administered by a
Stock Option Committee (the "Committee") appointed by the Board of Directors of
the Company (the "Board") which shall be composed of at least three (3) persons
who may, but need not be members of the Board of Directors. No member of the
Committee shall be eligible to participate nor shall have been eligible to
participate in the Plan (or in any other plan of the Company or any of its
affiliates entitling the participants therein to acquire stock, stock options or
stock appreciation rights of the Company or any of its affiliates) for a period
of at least one (1) year prior to his or her election to serve on the Committee.
Subject to the terms of the Plan, the Committee shall have the
authority to determine the persons to whom nonqualified stock options shall be
granted under the Plan and to recommend the date of grant and the other terms
and conditions thereof. The Committee shall have the authority to establish.
from time to time, such rules and regulations, not inconsistent with the
provisions of the Plan, for the proper administration of the Plan, and to make
such determinations and interpretations under or in connection with the Plan and
the Options granted hereunder, as it deems necessary or advisable. All such
rules, regulations, determinations and interpretations shall be binding and
conclusive upon the Company, its stockholders. employees (including former
employees), and directors. and any related corporation. and upon their
respective legal representatives. beneficiaries, successors and assigns and upon
all other persons claiming under or through any of them. No member of the Board
or of the Committee shall be liable for any action or determination made in good
faith with respect to the Plan or any Option granted hereunder, except those
resulting from such member's willful misconduct.
In addition to such other rights of indemnification as they may have as
members of the Board or the Committee. the Company shall defend. indemnify and
hold harmless the members of the Committee against all costs and expenses
reasonably incurred by them in connection with any action. suit or proceeding to
which they or any of them may be party by reason of any action taken or failure
to act under or in connection with the Plan or any Option granted hereunder, and
against all amounts paid or payable by them in settlement thereof (provided such
settlement is approved by independent legal counsel selected by the Company) or
paid or payable by them in satisfaction of a judgment in any such action, suit
or proceeding, except a judgment based upon a finding of bad faith on the part
of the Board or Committee member seeking indemnification hereunder, provided
that upon the institution of any such action, suit or proceeding a Committee
member shall, in writing, give the Company notice thereof and any opportunity.
at its own expense. to handle and defend the same before such committee member
undertakes to handle and defend it on her or his own behalf.
3. Eligibility
The persons eligible to participate in the Plan shall be the
nonemployee directors (except any director who may be ineligible as a result of
his appointment to the Committee) of the Company who may be designated by the
Committee. The persons eligible to receive Options under the Plan are
hereinafter referred to as "Eligible Individuals".
4. Stock Subject to the Plan
Subject to adjustment in accordance with the provisions of Section 10
hereof, 214,980 shares of Common stock, par value $.0625 per share of the
Company ("Shares"), shall be available for the grant of Options under the Plan.
Shares issuable under the Plan shall be authorized but unissued Shares of the
Company, including treasury shares.
If any Option granted under the Plan expires or otherwise terminates,
in whole or in part. without having been exercised, the Shares subject to the
unexercised portion of such Option shall be available for the granting of
Options under the
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Plan as fully as if such Shares had never been subject to an Option.
5. Grants and Price of Options
(a) Grants. From time to time until the expiration or earlier
termination of the Plan, the Committee may grant Options to Eligible Individuals
(such grantees are hereinafter referred to as "Optionees") under the Plan.
Options granted pursuant to the Plan to such Eligible Individuals shall be in
such form as the Committee shall from time to time approve, and shall be subject
to the terms and conditions of this Plan.
(b) Price of Options. The purchase price per share (the "Option Price")
under each Option granted under the Plan shall be determined and fixed by the
Committee in its discretion, but shall not be less than eighty-five percent
(85%) of the fair market value of such Shares on the date of grant of such
Option. The fair market value of a Share on any day shall mean (i) the last
reported closing price of a share as quoted by the Nasdaq and reported in The
Wall Street Journal (or other reputable financial publication in the event The
Wall Street Journal is unavailable); or if at any time the Company's Common
stock is not eligible for quotation on Nasdaq; (ii) such other method of
determining fair market value as shall be permitted by the Code or the rules or
regulations thereunder, and adopted by the Committee from time to time.
6. Term of Options
Unless earlier terminated pursuant to any provision hereof, all Options
granted under the Plan shall expire on a date which is no later than the date
that is ten (10) years after the date of grant of such Option (the "Expiration
Date").
7. Exercise and Payment
(a) Exercise. Options shall become exercisable in installments. Twenty
percent (20%) of the Options granted shall become exercisable one (1) year after
the date upon which such Options are granted (the "Grant Date") and twenty
percent (20%) shall become exercisable each year thereafter until all Options
are exercisable at the end of five (5) years. Notwithstanding the foregoing
sentence, all options shall immediately become exercisable upon the death of an
Optionee. Except as otherwise provided in Section 8 below, Options shall only be
exercisable by an Optionee while he or she remains a director of the Company. An
Option which becomes exercisable pursuant to the foregoing provisions may be
exercised at any time, in whole or in part, up to the expiration or termination
of the Option; provided, however, that no Option may be exercised after ten (10)
years after the Grant Date. Options may be exercised, in whole or in part, from
time to time by giving written notice of exercise to the Company at its
principal office, specifying the number of Shares to be purchased and
accompanied by payment in full of the aggregate purchase price for such Shares.
All Options may be exercised as to less than the full amount of Shares available
at the time of exercise, but must be exercised in multiples of full Shares,
rather than fractional Shares.
(b) Payment. The Option Price shall be payable in cash or by check,
bank draft, or postal or express money order.
8. Termination of Options and Transferability
(a) Termination of Optionee's Directorship. If an Optionee ceases to be
a director of the Company for any reason other than death (as described in
Subsection (b) below) prior to the Expiration Date of any Options, such Option
shall terminate immediately upon such cessation.
(b) Death of Optionee. If an Optionee dies while a director of the
Company and if on the dale of death an Optionee holds an Option that is not
fully exercised. then for a period of six (6) months after the Optionee's death
or the unexpired term of the Option, whichever is less, the Option may be
exercised by the executor or administrator of the Optionee or by any person who
acquires the Option from the Optionee by bequest or inheritance. to the extent
that the Optionee could have exercised such Option on the date of his death.
(c) Transferability. No Option shall be assignable or transferable by
an Optionee otherwise than by will or by the laws of descent and distribution,
and during the lifetime of the Optionee. the Option shall be exercisable only by
him, or in the event of his legal disability, by his legal representative.
9. Registration of Shares
The Company may, but shall not be obligated to, register the Options or
the Shares received upon exercise of an Option, or both, with the Securities and
Exchange Commission and any state securities law commission or agency. In the
absence of such registration, both the Options and the Shares:
(i) will be issued only pursuant to an exemption from registration;
(ii) cannot be sold, pledged, transferred or otherwise disposed of in
the absence of an effective registration statement
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or an opinion of counsel satisfactory to the Company that such
registration is not required; and
(iii) will bear an appropriate restrictive legend setting forth the
statement contained in subparagraph (ii) above.
The Company shall not be required to sell or issue any Shares under any
Option if the issuance of such Shares would, in the judgment of the Company,
constitute or result in a violation by the Optionee or the Company of any
provision of law or regulation of any governmental agency. The Company, at its
discretion, may require the Optionee to sign, when exercising an Option. an
investment letter satisfactory to the Company.
10. Adjustments
(a) The number of Shares which may be issued under the Plan, as stated
in Section 4 hereof, and the number of Shares issuable upon exercise of
outstanding Options under the Plan (as well as the exercise price per share
under such outstanding Options) shall be equitably adjusted by the Committee to
reflect: (i) any stock dividend or stock split, (ii) any subdivision or
combination of outstanding shares or (iii) any other reorganization or change in
the stock or capital structure of the Company in connection with which the
Company issues additional shares of capital stock without receiving any
consideration therefor.
(b) In the event the Company is liquidated or a corporate transaction
described in Section 425(a) of the Code and the Treasury Regulations issued
thereunder occurs (such as, for example, a merger, consolidation, acquisition of
property or stock, separation, or reorganization), each outstanding Option shall
be assumed by the surviving or successor corporation, if any.
11. Amendment or Discontinuance of the Plan
The Board at any time, and from time to time, may suspend or
discontinue the Plan or amend it in any respect whatsoever, provided, however,
that, without the approval of the holders of at least a majority of the
outstanding Shares, the Plan may not be amended so as to materially (a) increase
the benefits accruing to participants under the Plan; (b) increase the number of
Shares which may be issued under the Plan; (except for adjustments permitted or
required under Section 10 hereof): (c) modify the requirements as to eligibility
for participation in the Plan; or (d) materially increase the cost of the Plan
to the Company; and provided further, that no such suspension, discontinuance or
amendment shall materially impair the rights of any holder of an outstanding
Option without the consent of such holder.
12. Application of Funds
The funds received by the Company upon the exercise of Options and
otherwise under the Plan shall be used for general corporate purposes as
permitted by law.
13. Shareholder Approval
This Plan is subject to the approval of the holders of at least a
majority of the votes cast by the holders of Shares entitled to vote thereon;
which approval shall be obtained at the annual shareholder's meeting following
the adoption of the Plan by the Board. If the shareholders shall not approve the
Plan as aforesaid, the Plan shall not be effective, and any and all actions
taken prior thereto shall be null and void or shall, if necessary, be deemed to
have been fully rescinded.
14. No Obligation to Exercise Option
The granting of an Option shall impose no obligation upon an Optionee
to exercise such Option.
15. Termination of Plan
No Options may be granted after April 30, 1999, provided, however, that
the Plan and all outstanding Options shall remain in effect until such Options
have expired or vested, as the case may be, or are terminated in accordance with
the Plan.
16. Miscellaneous Provisions
(a) Rights as a Stockholder. An Optionee shall have no rights as a
stockholder with respect to any Shares covered by his Option until the issuance
of a stock certificate to him representing such Shares.
(b) Option Agreement and Further Conditions. As soon as practicable
after the grant of an Option, each Optionee shall enter into, and be bound by
the terms of, a nonqualified stock option agreement (the "Nonqualified Stock
Option Agreement") which shall state the number of Shares to which the Option
pertains. The Nonqualified Stock Option Agreement shall set forth such terms,
conditions and restrictions regarding the Option not inconsistent with the Plan
as the Committee s all determine. Without limiting the generality of the
foregoing, the Committee, in its discretion, may impose further conditions upon
the
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exercisability of Options and restrictions on transferability with respect to
Shares issued upon exercise of Options.
(c) Withholding of Taxes. The obligation of the Company to deliver
Shares upon the exercise of any Option shall be subject to any applicable
Federal, state and local tax withholding requirements.
(d) Governing Law. This Plan shall, to the maximum extent possible, be
construed in a manner consistent with the Code and shall otherwise be governed
by the laws of the State of New Jersey.
4
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September 2, 1997
New Brunswick Scientific Co., Inc.
44 Talmadge Road
P.O. Box 4005
Edison, NJ 08818-4005
Gentlemen:
We refer you to Amendment No. 1 to the Registration Statement on Form
S-8, File No. 333-06029, (as so amended, the "Registration Statement") under the
Securities Act of 1993, of New Brunswick Scientific Co., Inc. (the "Company")
pertaining to the offer and sale by the Company of up to 214,980 shares of the
Company's Common Stock, par value $.0625 per share (the "Shares") pursuant to
options granted from time to time under the Company's 1989 Stock Option Plan for
Nonemployee Directors (the "Plan").
We have acted as counsel to the Company in connection with the
Registration Statement. In such capacity, we have examined the Registration
Statement, copies of the Plan, the Company's Certificate of Incorporation and
such other corporate records and documents as we have deemed necessary in order
to express the opinion set forth below.
Based upon the foregoing examination, it is our opinion that upon the
issuance from time to time of certificates evidencing the Shares and delivery
thereof in exchange for payment therefor in accordance with the Plan, such
Shares shall be validly issued, fully paid and nonassessable.
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New Brunswick Scientific Co., Inc.
September 2, 1997
Page 2
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and the reference to our firm in prospectus included in
such Registration Statement under the heading "Validity of Common Stock."
Very truly yours,
NORRIS, MCLAUGHLIN & MARCUS, P.A.
/s/ Norris, McLaughlin & Marcus
<PAGE>
The Board of Directors
New Brunswick Scientific Co., Inc.:
We consent to the use of our reports incorporated herein by reference
and to the reference to our firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
/S/ KPMG Peat Marwick LLP
Short Hills, New Jersey
September 2, l997
