Registration No.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________EMCON_______________
(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
(Address of principal executive offices) (Zip code)
EMCON
1998 Stock Option Plan
(Full title of the plan)
R. Michael Momboisse
Chief Financial Officer and
Vice President - Legal and Secretary
EMCON
400 South El Camino Real, Suite 1200
San Mateo, California 94402
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (650) 375-1522
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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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of Securities to offering price aggregate offering
be registered1 Amount to be per share3 price3 Amount of
registered2 registration fee
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
<S> <C> <C> <C> <C>
Stock Option Plan
Common Stock, 108,000 $4.500 $ 486,000.00 $ 143.37
without par value 892,000 $4.21875 $3,763,125.00 $1,110.12
TOTALS 1,000,000 $4,249,125.00 $1,253.49
</TABLE>
1 The securities to be registered include options to acquire Common Stock.
2 Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any stock
split, stock dividend or similar transaction.
3 Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised options
under the Stock Option Plan, the price is computed on the basis of the weighted
average exercise price. As to the remaining shares under the Stock Option Plan,
the price is based upon the average of the high and low prices of the Common
Stock on August 05, 1998 as reported on the National Association of Securities
Dealers Automated Quotations System (NASDAQ).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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, 1997 as filed with the
Commission on March 30, 1998.
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act the Securities Exchange Act of 1934, as amended (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
Inapplicable.
Item 6. Indemnification of Directors and Officers
The Company's Restated Articles of Incorporation 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
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circumstances, equitable remedies such as injunctive or other forms of
nonmonetary 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.
In addition, the Company's Restated Articles of Incorporation
provide that the Company is authorized to provide indemnification of agents (as
defined under California law) for breach of duty to the Company and its
shareholders through bylaw provisions or through agreements with the agents, or
through shareholder resolutions, or otherwise, in excess of the indemnification
otherwise permitted by California law, subject to the limits on such excess
indemnification set forth in California law.
The Company's Bylaws provide that the Company will indemnify
its directors and executive officers and may indemnify its other officers,
employees and other agents to the fullest extent permitted by California law.
Such indemnification is intended to provide the full flexibility available under
California law and may, under certain circumstances, include indemnification for
negligence, gross negligence and certain types of recklessness. Under California
law and the Company's Bylaws, the Company will be permitted to indemnify its
directors, executive officers, officers, employees and other agents, within the
limits established by law and public policy, pursuant to an express contract,
bylaw provision, shareholder vote or otherwise, any or all of which could
provide indemnification rights broader than those expressly available under
California law.
The Company is also empowered under its Bylaws to enter into
indemnification agreements with its directors and officers and to purchase
insurance on behalf of any person whom it is required or permitted to indemnify.
The Company has entered into agreements with its directors and certain of its
executive officers that require the Company to indemnify such persons against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
an executive officer of the Company or any of its affiliated enterprises,
provided such person acted in good faith and in a manner such
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person reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal proceeding, had no reasonable cause to
believe his conduct was unlawful. The indemnification agreements also set forth
certain procedures that will apply in the event of a claim for indemnification
thereunder.
Section 317 of the California Corporations Code makes
provisions for the indemnification of officers, directors and other corporate
agents in terms sufficiently broad to indemnify such persons, under certain
circumstances, for liabilities (including reimbursement of expenses incurred)
arising under the Securities Act of 1933, as amended (the "Securities Act").
Section 317 also provides that the indemnification provided by this section is
not exclusive to the extent additional rights are authorized in a corporation's
articles of incorporation.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
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; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (l)(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 Exchange Act that are incorporated by
reference in the registration statement.
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(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.
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.
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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SIGNATURE
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 August 6,
1998.
EMCON
By: /s/ R. Michael Momboisse
---------------------------------------------
R. Michael Momboisse, Chief Financial
Officer, Vice President - Legal and Secretary
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SIGNATURES AND POWER OF ATTORNEY
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-in-fact 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-in-fact 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 and on the dates indicated.
Signature Title Date
- -------------------------- --------------------------- ----------------
/s/ Douglas P. Crane 7/24/98
- -------------------------- Chairman of the Board ----------------
Douglas P. Crane
/s/ Eugene M. Herson 8/6/98
- -------------------------- President and Chief Executive ----------------
Eugene M. Herson Officer and Director
/s/ Franklin J. Agardy 7/24/98
- -------------------------- Director ----------------
Dr. Franklin J. Agardy
/s/ Donald R. Kerstetter 7/27/98
- -------------------------- Director ----------------
Donald R. Kerstetter
/s/ Richard A. Peluso 8/6/98
- -------------------------- Vice President and Director ----------------
Richard A. Peluso
/s/ Peter Vardy 8/6/98
- -------------------------- Director ----------------
Peter Vardy
/s/ R. Michael Momboisse 8/6/98
- -------------------------- Chief Financial Officer, Vice ----------------
R. Michael Momboisse President - Legal and Secretary
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EXHIBIT INDEX
4.1 Articles of Incorporation of the Company is incorporated by reference
to Exhibit 3.1 to the Company's Registration Statement on Form S-1
filed with the Securities and Exchange Commission on September 16, 1987
(File No. 33-1637).
4.2 Certificate of Amendment of Restated Articles of Incorporation of the
Company is incorporated by reference to Exhibit 3.2 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1988.
4.3 Certificate of Amendment of Restated Articles of Incorporation of the
Company is incorporated by reference to Exhibit 4.1 to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
1991
4.4 Amended and Restated Bylaws of the Company are incorporated by
reference to Exhibit 4.2 to the Company's Quarterly Report on Form 10-Q
for the fiscal quarter ended June 30, 1991.
5 Opinion of legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: 650-328-6561 Fax: 650-327-3699 www.gcwf.com
August 10, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
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 1,000,000 shares of the Common Stock, without
par value, of the Company which may be issued pursuant to the exercise of
options under the 1998 Stock Option Plan (the "Option 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.
Based on such examination, we are of the opinion that the 1,000,000 shares of
Common Stock which may be issued upon exercise of options under the Option Plan
are duly authorized shares of the Company's Common Stock, and, when issued
against receipt of the consideration therefor in accordance with the provisions
of the Option Plan will be validly issued, fully paid and nonassessable. 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,
/s/ GRAY CARY WARE & FREIDENRICH LLP
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GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
The Board of Directors
EMCON
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 1998 Stock Option Plan of our report dated February
18, 1998, 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, 1997, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young, LLP
------------------------
Ernst & Young, LLP
San Francisco, California
August 6, 1998
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