Registration No.____________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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EMCON
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(Exact name of registrant as specified in its charter)
California 94-1738964
- --------------------------------- ------------------------------------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
400 South El Camino Real, Suite 1200
San Mateo, California 94402
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(Address of principal executive offices) (Zip code)
EMCON
Employee Stock Purchase Plan
----------------------------
(Full title of the plan)
R. Michael Momboisse
Chief Financial Officer and
Vice President - Legal
EMCON
400 South El Camino Real, Suite 1200
San Mateo, California 94402
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (415) 375-1522
This registration statement, including all exhibits and attachments, contains 13
pages. The exhibit index may be found on page 9 of the consecutively numbered
pages of the registration statement.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share(1) price(1) fee
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Common Stock 350,000 $3.67 $1,284,500 $442.93
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(1) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. The price is based upon 85% of the average of the high and low
prices of the Common Stock on July , 1995, as reported on the National
Association of Securities Dealers Automated Quotations system.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference
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EMCON (the "Company") hereby incorporates by reference in this
registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed
pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), containing audited financial statements for the
Company's latest fiscal year ended December 31, 1994 as filed with the
Commission on March 29, 1995.
(b) All other reports filed pursuant to Section 13(a) or15(d)
of the Exchange Act since the end of the fiscal year covered by the registrant
document referred to in (a) above.
(c) The description of the Company's Common Stock contained
in the Company's Registration Statement on Form 8-A (No. 016225), effective
September 17, 1987, filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post- effective amendment to this registration statement which indicates that
all securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
- ------ -------------------------
The class of securities to be offered is registered under Section
12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
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Inapplicable.
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Item 6. Indemnification of Directors and Officers
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The Company's Restated Articles of Incorporation, as amended,
provide that the liability of the directors for monetary damages shall be
eliminated to the fullest extent permissible under California law. Pursuant to
California law, the Company's directors shall not be liable for monetary damages
for breach of the directors' fiduciary duty of care to the Company and its
shareholders. However, this provision does not eliminate the duty of care, and
in appropriate circumstances, equitable remedies such as injunctive or other
forms of non-monetary relief will remain available under California law. In
addition, each director will continue to be subject to liability for (i) acts or
omissions that involve intentional misconduct or a knowing and culpable
violation of law, (ii) acts or omissions that a director believes to be contrary
to the best interests of the Company or its shareholders or that involve the
absence of good faith on the part of the director, (iii) any transaction from
which a director derived an improper personal benefit, (iv) acts or omissions
that show a reckless disregard for the director's duty to the Company or its
shareholders in circumstances in which the director was aware, or should have
been aware, in the ordinary course of performing a director's duties, of a risk
of serious injury to the Company or its shareholders, (v) acts or omissions that
constitute an unexcused pattern of inattention that amounts to an abdication of
the director's duty to the Company or its shareholders, (vi) any transaction
that constitutes an illegal distribution or dividend under California law, and
(vii)any transaction involving an unlawful conflict of interest between the
director and the Company under California law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
Item 7. Exemption From Registration Claimed
- ------
Inapplicable.
Item 8. Exhibits
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See Exhibit Index.
Item 9. Undertakings
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(a) Rule 415 Offering
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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:
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(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)(l)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and 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 Exchange Act 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) Filing incorporating subsequent Exchange Act documents by
reference.
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
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.
(h) Request for acceleration of effective date or filing of
registration statement on Form S-8
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Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is 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.
SIGNATURE
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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 City of San Mateo, State of California, on July 21, 1995.
EMCON
By: /s/ R. Michael Momboisse
--------------------------------
R. Michael Momboisse, Chief
Financial Officer and Vice
President - Legal
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POWER OF ATTORNEY
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The officers and directors of EMCON whose signatures appear below, hereby
constitute and appoint Eugene M. Herson and R. Michael Momboisse, and each of
them, their true and lawful attorneys and agents, with full power of
substitution, each with power to act alone, to sign and execute on behalf of the
undersigned any amendment or amendments to this registration statement on
Form S-8, and each of the undersigned does hereby ratify and confirm all that
each of said attorney and agent, or their or his substitutes, shall do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities indicated on July 21, 1995.
Signature Title
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/s/ Eugene M. Herson
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Eugene M. Herson President, Chief Executive Officer, and
Director (Principal Executive Officer)
/s/ R. Michael Momboisse
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R. Michael Momboisse Chief Financial Officer and Vice President
- Legal (Principal Financial and
Accounting Officer)
/s/ Thorley D. Briggs
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Thorley D. Briggs Chairman of the Board and Director
/s/ Stephen W. Vincent
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Stephen W. Vincent Vice President - Laboratory Operations,
President of Columbia Analytical Services,
Inc. and Director
/s/ H. Lee Fortier
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H. Lee Fortier Vice President - Consulting Operations
and Director
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/s/ Donald R. Andres
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Donald R. Andres Regional Vice President and Director
/s/ Douglas Crane
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Douglas Crane Director
/s/ Peter Vardy
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Peter Vardy Director
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Donald R. Kerstetter Director
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Jack M. Marzluft Director
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EXHIBIT INDEX
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Sequentially
Numbered Page
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4.1 Restated Articles of Incorporation, of --
the Company as filed on July 30, 1987,
is incorporated by reference from
Exhibit 3.1 of the Company's
Registration Statement on Form S-1 (No.
33-16337), effective September 16, 1987
4.3 Certificate of Amendment of Restated --
Articles of Incorporation of the Company
as filed on May 24, 1988, is
incorporated by reference from Exhibit
3.2 of the Company's Annual Report on
Form 10-K for the fiscal year ended
December 31, 1988
4.4 Certificate of Amendment of Restated --
Articles of Incorporation of the Company
as filed on June 4, 1991, is
incorporated by reference from Exhibit
4.1 of the Company's Quarterly Report on
Form 10-Q for the fiscal quarter ended
June 30, 1991
4.5 Amended and Restated By-Laws of the --
Company are incorporated by reference
from Exhibit 4.2 of the Company's
Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 1993
5 Opinion re legality 10
23.1 Consent of Counsel (included in Exhibit 5) --
23.2 Consent of Ernst & Young, LLP Independent Auditors 13
24 Power of Attorney (included in signature --
pages to this registration statement)
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EXHIBIT 5
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OPINION RE LEGALITY
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GRAY CARY WARE
FREIDENRICH
A PROFESSIONAL CORPORATION
Attorneys at Law
400 Hamilton Avenue
Palo Alto, CA 94301-1825
Tel (415) 328-6561
Fax (415) 327-3699
Our File No.
July 26, 1995 1050224-901802
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: EMCON Registration Statement on Form S-8 Registering Shares Issuable
Under the Employee Stock Purchase Plan
Ladies and Gentlemen:
As legal counsel for EMCON, a California corporation (the "Company"),
we are rendering this opinion in connection with the registration under the
Securities Act of 1933, as amended, of up to 350,000 shares of the Common Stock
of the Company which may be issued pursuant to the exercise of purchase rights
granted under the EMCON Employee Stock Purchase Plan (the "Plan").
We have examined all instruments, documents and records which we
deemed relevant and necessary for the basis of our opinion hereinafter
expressed. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to the originals of all documents submitted to us as copies.
We are admitted to practice only in the State of California and we
express no opinion concerning any law other than the law of the State of
California and the federal law of the United States.
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Securities and Exchange Commission
Page 2
Based on such examination, we are of the opinion that the 350,000
shares of Common Stock which may be issued upon exercise of purchase rights
granted under the Plan are duly authorized shares of the Company's Common Stock,
and, when issued against payment of the purchase price therefor in accordance
with the provisions of the Plan, will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
Respectfully submitted,
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
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CONSENT OF ERNST & YOUNG, LLP INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the EMCON Employee Stock Purchase Plan of our report dated
February 21, 1995, with respect to the consolidated financial statements and
schedule of EMCON included and/or incorporated by reference in its Annual Report
(Form 10-K) for the year ended December 31, 1994, filed with the Securities and
Exchange Commission.
Ernst & Young, LLP
San Jose, California
July 25, 1995
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