Registration No. 2-99078
As filed with the Securities and Exchange Commission on June 28, 1996
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ARIZONA INSTRUMENT CORPORATION*
(Exact name of registrant as specified in its charter)
DELAWARE 86-0410138
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4114 East Wood Street
Phoenix, Arizona 85040
(Address of Principal Executive Offices) (ZIP Code)
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1985 STOCK PURCHASE PLAN
(Full title of the plan)
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Copy to:
SCOTT M. CARTER PAUL M. GALES, ESQ.
Vice President and Chief Financial Officer Quarles & Brady
ARIZONA INSTRUMENT CORPORATION Suite 400
4114 East Wood Street One East Camelback Road
Phoenix, Arizona 85040 Phoenix, Arizona 85012
(Name and address of agent for service)
(602) 470-1414
(Telephone number, including area code, of agent for service)
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* The Registrant, Arizona Instrument Corporation, a Delaware corporation,
successor issuer to Arizona Instrument Corporation, an Arizona corporation ("AZI
Arizona"), pursuant to a merger for the purpose of changing AZI Arizona's state
of incorporation from Arizona to Delaware, hereby adopts as its own, pursuant to
Rule 414(d) under the Securities Act of 1933, AZI Arizona's Registration
Statement on Form S-8, File No. 2- 99078, and any amendments thereto, for all
purposes of the Securities Act of 1933 and the Securities Exchange Act of 1934.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) will be
sent or given to Plan participants as specified by Rule 428(b)(1) under the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Arizona Instrument Corporation, a
Delaware corporation (the "Registrant") (Commission File No. 0-12575), successor
issuer to Arizona Instrument Corporation, an Arizona corporation, in an
Arizona-to-Delaware change of domicile merger effective on June 16, 1988, with
the Securities and Exchange Commission (the "Commission") pursuant to Section 13
of the Securities Exchange Act of 1934 (the "1934 Act") are incorporated herein
by reference:
(a) The Registrant's Annual Report on Form 10-KSB, and Amendment
No. 1 thereto on Form 10- KSB/A, for the fiscal year ended
December 31, 1995;
(b) The Registrant's Quarterly Report on Form 10-QSB for the
quarterly period ended March 31, 1996; and
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A, dated
June 26, 1996, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then 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 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
other subsequently filed document which also is or is deemed to be 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 hereof.
Item 4. Description of Securities.
Not applicable. See Item 3(c) above.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Section 145(a) of the General Corporation Law of the State of Delaware
(the "General Corporation Law") provides that a Delaware corporation may
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 or she 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 or enterprise, against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no cause to believe his or her conduct was unlawful.
Section 145(b) provides that a Delaware corporation may 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 actually
and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted under similar standards as
set forth above, 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 in which
such action or suit was brought shall determine that despite the adjudication of
liability, but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to be indemnified for such expenses which the
court shall deem proper.
Section 145 further provides that to the extent a director or officer
of a corporation has been successful on the merits or otherwise in the defense
of any action, suit or proceeding referred to in subsections (a) and (b) or in
the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses actually and reasonably incurred by him or her 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; and that the corporation may purchase and maintain insurance on behalf
of such person against any liability asserted against him or her or incurred by
him or her in any such capacity or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify him or her
against such liabilities under such Section 145.
Section 102(b)(7) of the General Corporation Law provides that a
corporation in its original certificate of incorporation or an amendment thereto
validly approved by stockholders may eliminate or limit personal liability of
members of its board of directors or governing body for monetary damages for
breach of a director's fiduciary duty. However, no such provision may eliminate
or limit the liability of a director for breaching his or her duty of loyalty,
failing to act in good faith, engaging in intentional misconduct or knowingly
violating a law, paying a dividend or approving a stock repurchase or redemption
which was illegal, or obtaining an improper personal benefit. A provision of
this type has no effect on the availability of equitable remedies, such as
injunction or rescission, for breach of fiduciary duty. The Company's
Certificate of Incorporation contains such a provision.
The Company's Certificate of Incorporation provides that the Company
shall indemnify officers and directors to the full extent permitted by and in
the manner permissible under the law. The Company's Bylaws provide that the
Company may, to the extent authorized by the Board of Directors, indemnify
employees and agents of the Company made a party to a legal proceeding by reason
of that person being the Company's employee or agent.
Directors and Officers of the Company are covered by directors' and
officers' liability insurance under which they are insured (subject to certain
exceptions and limitations specified in the policy) against expenses and
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liabilities arising out of proceedings to which they are parties by reason of
being or having been directors or officers.
The Company has directors and officers' liability insurance coverage
with a policy limit of $1,000,000. The policy includes coverage for liability
for certain violations of federal and state securities laws.
The Company has entered into indemnity agreements with its directors
and officers for indemnification of and advance of expenses to such persons to
the full extent permitted by law. The Company intends to execute such indemnity
agreements with its future officers and directors.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index following Signatures page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at 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.
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(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.
(h) Reference is made to the indemnification provisions referred to in
Item 6 of this Registration Statement.
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 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 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 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, 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 Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Phoenix, State of Arizona, on June 27,
1996.
ARIZONA INSTRUMENT CORPORATION
(Registrant)
By: /s/ John P.Hudnall
John P. Hudnall, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Walfred R. Raisanan and John P. Hudnall, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, 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 the Registration Statement on Form S-8, File No. 2-99078, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, and any other regulatory
authority, granting unto said attorneys-in-fact and agents, and each of them,
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 attorneys-in-fact and agents or any of them, or their
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 date indicated.
<TABLE>
<CAPTION>
Person Title Date
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<S> <C> <C>
/s/ Walfred R. Raisanan Chairman of the Board of Directors June 27, 1996
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Walfred R. Raisanan
President and Director
/s/ John P. Hudnall (Principal Executive Officer) June 27, 1996
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John P. Hudnall
Chief Financial Officer (Principal
/s/ Scott M. Carter Financial and Accounting Officer) June 27, 1996
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Scott M. Carter
/s/ S. Thomas Emerson Director June 27, 1996
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S. Thomas Emerson
/s/ Quinn Johnson Director June 27, 1996
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Quinn Johnson
/s/ Richard Long Director June 27, 1996
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Richard Long
/s/ Patricia Onderdonk Director June 27, 1996
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Patricia Onderdonk
/s/ Stanley H. Weiss Director June 27,1996
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Stanley H. Weiss
</TABLE>
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ARIZONA INSTRUMENT CORPORATION
(the "Registrant")
(Successor to Arizona Instrument Corporation, an Arizona corporation
("AZI Arizona"), Commission File No. 0-12575)
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
(As Amended by Post-Effective Amendment No.1)
<TABLE>
<CAPTION>
Exhibit Incorporated Herein Filed
Number Description by Reference To Herewith
<S> <C> <C> <C>
4.1 Composite of the Registrant's Exhibit 1 to the
Certificate of Incorporation, Registrant's Registration
as amended through July 5, 1994 Statement on Form 8-A,
filed on June 26, 1996
4.2 Bylaws of the Registrant Exhibit 2 to the
Registrant's Registration
Statement on Form 8-A,
filed on June 26, 1996
5 Opinion of Counsel X
23.1 Consent of Independent Accountants X
23.2 Consent of Counsel Contained in
Opinion filed
as Exhibit 5
24 Powers of Attorney Signatures Page
99.1 1985 Stock Purchase Plan Exhibit 4.1 to the
Registration Statement on
Form S-8 for its 1985 Stock
Purchase Plan, File No. 2-99078,
filed on July 10, 1985
99.2 Agreement and Plan of X
Merger by and between the
Registrant and AZI Arizona,
dated as of June 15, 1988
</TABLE>
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Exhibit 5
June 27, 1996
Arizona Instrument Corporation
4114 East Wood Street
Phoenix, Arizona 85040
Gentlemen:
We are providing this opinion in connection with Post-Effective
Amendment No. 1 to the Registration Statement of Arizona Instrument Corporation,
an Arizona corporation ("AZI Arizona"), on Form S-8, File No. 2- 99078 (the
"Registration Statement"), filed on July 18, 1985 under the Securities Act of
1933, as amended (the "Act"), with respect to the proposed sale by AZI Arizona
of up to 200,000 shares of common stock of AZI Arizona ("AZI Arizona Common
Stock") granted under the 1985 Stock Purchase Plan (the "Plan").
Arizona Instrument Corporation, a Delaware corporation (the "Company"),
was created as a wholly owned subsidiary of AZI Arizona in connection with the
Agreement and Plan of Merger, dated as of June 15, 1988, between AZI Arizona and
the Company (the "Merger Agreement"), pursuant to which AZI Arizona was merged
with and into the Company (the "Merger") effective June 16, 1988, for the
purpose of changing the state of incorporation from Arizona to Delaware, and,
among other things, the Plan was assumed by the Company. The shares of common
stock, par value $.01 per share, of the Company which remain available for
issuance under the Plan as so assumed by the Company pursuant to the Merger, in
lieu of shares of AZI Arizona Common Stock, are herein referred to as the
"Shares."
We have examined (i) the Registration Statement, as amended by
Post-Effective Amendment No. 1, (ii) the Company's Certificate of Incorporation
and Bylaws, as amended to date, (iii) the Plan, as assumed by the Company
pursuant to the Merger, (iv) the Merger Agreement; (v) the corporate proceedings
relating to the adoption of the Plan, the issuance of the Shares, the
organization of the Company and the Merger, and (vi) such other documents and
records as we have deemed necessary in order to render this opinion. In
rendering this opinion, we have relied as to certain factual matters on
certificates of officers of the Company and of state officials.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation validly existing under the laws
of the State of Delaware.
2. The Shares, when issued and paid for as contemplated by the
Registration Statement, as amended, and the Plan, will be
validly issued, fully paid and non-assessable by the Company.
We consent to the filing of this opinion as an Exhibit to the
Registration Statement. In giving our consent, We do not admit that we are
"experts" within the meaning of Section 11 of the Act, or that we come within
the category of persons whose consent is required by Section 7 of the Act.
Very truly yours,
QUARLES & BRADY
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to Registration Statement No. 2-99078 of Arizona Instrument Corporation on
Form S-8 of our report dated March 13, 1996, except for Note C, as to which the
date is March 26, 1996, appearing in the Annual Report on Form 10-KSB of Arizona
Instrument Corporation for the year ended December 31, 1995.
DELOITTE & TOUCHE LLP
Phoenix, Arizona
June 21, 1996
EXHIBIT 99.2
ARIZONA INSTRUMENT CORPORATION
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (hereinafter called the
"Merger Agreement") is made on June 15, 1988 by and between Arizona Instrument
Corporation, an Arizona corporation ("AZI Arizona") and Arizona Instrument
Corporation, a Delaware corporation ("AZI Delaware"). AZI Arizona and AZI
Delaware are sometimes referred to as the "Constituent Corporations."
The authorized capital stock of AZI Arizona consists of
10,000,000 shares of voting Common Stock, no par value, and the authorized
capital stock of AZI Delaware consists of 5,000,000 shares of Common Stock, $.01
par value. The directors of the Constituent Corporations deem it advisable and
to the advantage of the corporations that AZI Arizona merge into AZI Delaware
upon the terms and conditions herein provided.
NOW, THEREFORE, the parties do hereby adopt the plan of
reorganization encompassed by this Merger Agreement and do hereby agree that AZI
Arizona shall merge into AZI Delaware on the following terms, conditions and
other provisions:
1. TERMS AND CONDITIONS
1.1 Merger. AZI Arizona shall be merged with and into AZI
Delaware, and AZI Delaware shall be the surviving corporation (the "Surviving
Corporation") effective upon the date when this Merger Agreement is filed with
the Secretary of State of the State of Delaware (the "Effective Date").
1.2 Succession. On the Effective Date, AZI Delaware shall
succeed to all of the rights, privileges, powers and property, including without
limitation, all rights, privileges, franchises, patents, trademarks, licenses,
registrations and other assets of every kind and description of AZI Arizona in
the manner of and as more fully set forth in Section 259 of the General
Corporation Law of the State of Delaware.
1.3 Common Stock of AZI Arizona and AZI Delaware. Upon the
Effective Date, by virtue of the merger and without any further action on the
part of the Constituent Corporations or their shareholders, (i) each share of
Common Stock of AZI Arizona issued and outstanding immediately prior thereto
shall be changed and converted into one fully paid and nonassessable share of
the Common Stock of AZI Delaware, $.01 par value per share; (ii) each share of
Common Stock of AZI Delaware, $.01 par value per share issued and outstanding
immediately prior thereto shall be redeemed at the price at which such share was
initially purchased from AZI Delaware and shall be cancelled and returned to the
status of authorized but unissued shares.
1.4 Stock Certificates. On and after the Effective Date, all
of the outstanding certificates which prior to that time represented shares of
the Common Stock of AZI Arizona ("Existing Certificates") shall be deemed for
all purposes to evidence ownership of and to represent the shares of Common
Stock of AZI Delaware into which the shares of AZI Arizona represented by such
certificates have been converted as herein provided and shall be so registered
on the books and records of AZI Delaware or its transfer agent. The registered
owner of any such Existing Certificate shall, until such certificate shall have
been surrendered for transfer or conversion or otherwise accounted for to AZI
Delaware or its transfer agent, have and be entitled to exercise any voting and
other rights with respect to and to receive any dividend and other distributions
upon the shares of the Common Stock of AZI Delaware evidenced by such Existing
Certificates as above provided. Notwithstanding any other provision herein to
the contrary, the number of shares of Common Stock of AZI Delaware to which each
registered owner of any such Existing Certificate shall be entitled shall be
equal to the number of shares of Common Stock of AZI Arizona indicated on such
certificate.
1.5 Stock Plans and Options. Upon the Effective Date, AZI
Delaware will assume and continue all the existing stock options of AZI Arizona
granted under any existing employee option plan of AZI Arizona as in existence
immediately preceding the Effective Date. Effective upon the Effective Date, AZI
Delaware hereby assumes the obligations of AZI Arizona with respect thereto,
provided that the exercise price
<PAGE>
and number of shares of AZI Delaware authorized for and granted under such plans
shall be adjusted to the conversion ratio as set forth in Section 1.3 above.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation and Bylaws. From and after
the Effective Date, the certificate of incorporation and the bylaws of AZI
Delaware as in effect on the Effective Date shall continue to be the certificate
of incorporation and bylaws of AZI Delaware without change or amendment until
further amendment in accordance with the provisions thereof and applicable law.
2.2 Directors. The directors of AZI Delaware immediately
preceding the Effective Date shall continue to be the directors of AZI Delaware
on and after the Effective Date to serve until the expiration of their terms and
until their successors are elected and qualified.
2.3 Officers. the officers of AZI Delaware immediately
preceding the Effective Date shall continue to be the officers of AZI Delaware
on the Effective Date to serve at the pleasure of the Board of Directors of AZI
Delaware.
III. MISCELLANEOUS
3.1 Further Assurances. From time to time, as and when
required by AZI Delaware or by its successors and assigns, there shall be
executed and delivered on behalf of AZI Arizona such deeds and other
instruments, and there shall be taken or caused to be taken by it such further
and other action, as shall be appropriate or necessary in order to vest or
perfect title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of AZI Arizona and
otherwise to carry out the purposes of this Merger Agreement, and the officers
and directors of AZI Delaware are fully authorized in the name and on behalf of
AZI Arizona or otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
3.2 Amendment. At any time before or after approval by the
shareholders of AZI Arizona, this Merger Agreement may be amended in any manner
(except that any of the principal terms may not be amended without the approval
of the shareholders of AZI Arizona) as may be determined in the judgment of the
respective Board of Directors of AZI Delaware and AZI Arizona to be necessary,
desirable or expedient in order to clarify the intention of the parties hereto
or to effect or facilitate the purpose and intent of this Merger Agreement.
3.3. Abandonment. At any time before the Effective Date, this
Merger Agreement may be terminated and the merger contemplated hereby may be
abandoned by the Board of Directors of either AZI Arizona or AZI Delaware or
both, notwithstanding the approval of this Merger Agreement by the shareholders
of AZI Arizona.
3.4. Counterparts. In order to facilitate the filing and
recording of this Merger Agreement, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original.
<PAGE>
IN WITNESS WHEREOF, this Merger Agreement, having been first duly
approved by the Board of Directors of AZI Arizona and AZI Delaware, is hereby
executed on behalf of each such corporation and attested by their respective
officers thereunto duly authorized.
ARIZONA INSTRUMENT CORPORATION
an Arizona corporation
By /s/ John P. Hudnall
-------------------------
John Hudnall, President
ATTEST:
/s/ Charles Byers
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Charles Byers, Secretary
ARIZONA INSTRUMENT CORPORATION
a Delaware corporation
By /s/ John P. Hudnall
-------------------------
John Hudnall, President
ATTEST:
/s/ Charles Byers
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Charles Byers, Secretary
STATE OF ARIZONA )
)ss.
County of Maricopa )
I HEREBY CERTIFY that on this day before me, an officer duly
authorized to administer oaths and take acknowledgement, personally appeared
JOHN HUDNALL and CHARLES BYERS, President and Secretary, respectively, of
ARIZONA INSTRUMENT CORPORATION, an Arizona corporation.
WITNESS my hand and official seal of the City of Tempe, in the
County and State last aforesaid this 15th day of June, 1988.
/s/ Susan D. Berry
---------------------------
NOTARY PUBLIC
My Commission expires:
10-2-92
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