As filed with the Securities and Exchange Commission on August 1, 1996
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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PERCON INCORPORATED
(Exact name of registrant as specified in its charter)
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WASHINGTON 91-1486560
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
1720 Willow Creek Circle, Suite 530
Eugene, Oregon 97402-9171
(Address of Principal (Zip Code)
Executive Offices)
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Percon Incorporated
1995 Stock Incentive Plan
(Full title of plan)
Michael P. Coughlin
President
Percon Incorporated
1720 Willow Creek Circle, Suite 530
Eugene, Oregon 97402-9171
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (503) 626-9393
Copy to:
John R. Thomas
Stoel Rives LLP
900 SW Fifth Avenue, Suite 2300
Portland, Oregon 97204-1268
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------
Proposed Proposed Amount
Maximum Maximum of
Amount Offering Aggregate Regis-
Title of Securities to Be Price Per Offering tration
to Be Registered Registered Share(1) Price(1) Fee
- ---------------- ---------- -------- -------- ---
<S> <C> <C> <C> <C>
Common Stock 500,000 Shares $13.00 $5,542,113 $1,912
- --------------------------------------------------------------------------------------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933. Of the
shares to be registered, 313,220 shares are subject to options with an
aggregate exercise price of $3,113,973. The calculation of the
registration fee for the balance of the shares is based on $13.00,
which was the average of the high and low prices of the Common Stock
on July 31, 1996 as reported in The Nasdaq National Market.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
---------------------------------------
The following documents filed by Percon Incorporated (the
"Company") with the Securities and Exchange Commission are incorporated
herein by reference:
(a) The Company's latest annual report filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 or the latest
prospectus filed pursuant to Rule 424(b) under the Securities Act of
1933 that contains audited financial statements for the Company's
latest fiscal year for which such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of the fiscal year
covered by the annual report or prospectus referred to in (a) above.
(c) The description of the authorized capital stock of the Company
contained in the Company's registration statement filed under Section
12 of the Securities Exchange Act of 1934, including any amendment or
report filed for the purpose of updating the description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended, prior to the filing of a post-effective amendment
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 herein and to be a part hereof from the date of
the filing of such reports and documents.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Article VII of the Company's Amended and Restated Articles of
Incorporation (the "Articles") requires indemnification of current or
former directors of the Company to the full extent permitted by the
Washington Business Corporation Act
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(the "Act"). The effects of the Articles and the Act (the "Indemnification
Provisions") are summarized as follows:
(a) The Indemnification Provisions grant a right of
indemnification in respect of any action, suit or proceeding (other
than an action by or in the right of the Company) against expenses
(including attorney fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred, if the person concerned
(i) acted in good faith and in a manner the person reasonably believed
to be, in the case of conduct in the person's official capacity, in
the best interests of the Company or, in all other cases, not opposed
to the best interests of the Company, (ii) was not adjudged liable on
the basis of receipt of an improper personal benefit and (iii) with
respect to any criminal action or proceeding, had no reasonable cause
to believe the conduct was unlawful. The termination of an action,
suit or proceeding by judgment, order, settlement, conviction or plea
of nolo contendere does not, of itself, create a presumption that the
person did not meet the required standards of conduct.
(b) The Indemnification Provisions grant a right of
indemnification in respect of any action or suit by or in the right of
the Company against the expenses (including attorney fees) actually
and reasonably incurred if the person concerned acted in good faith
and in a manner the person reasonably believed to be, in the case of
conduct in the person's official capacity, in the best interests of
the Company, or in all other cases, not opposed to the best interests
of the Company; except that no right of indemnification will be
granted if the person is adjudged to be liable to the Company.
(c) Because the limits of permissible indemnification under
Washington law are not clearly defined, the Indemnification Provisions
may provide indemnification broader than that described in (a) and
(b).
(d) The Company may advance to a director or officer the expenses
incurred in defending any action, suit or proceeding in advance of its
final disposition if the director or officer affirms in good faith
that he or she has met the standard of conduct to be entitled to
indemnification as described in (a) or (b) above and undertakes to
repay any amount advanced if it is determined that the person did not
meet the required standard of conduct.
The Company may obtain insurance for the protection of its
directors and officers against any liability asserted against them in their
official capacities. The rights of indemnification described above are not
exclusive of any other rights of indemnification to which the persons
indemnified may be entitled under any bylaw, agreement, vote of
shareholders or directors or otherwise. Agreements executed by the
President and Chief Executive Officer and the Executive Vice President and
Chief
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<PAGE>
Operating Officer obligate the Company to indemnify each such officer for
liabilities incurred as an officer of the Company.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
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4.1 Amended and Restated Articles of Incorporation of the
Company (incorporated by reference to Exhibit 3.1a to the
Company's Registration Statement on Form SB-2, File No.
33-93598 (the "Form SB-2")).
4.2 Bylaws of the Company (incorporated by reference to Exhibit
3.2a to the Form SB-2).
5.1 Opinion of Counsel.
23.1 Consent of Independent Accountants (see page II-6).
23.2 Consent of Stoel Rives LLP (see Exhibit 5.1).
24.1 Powers of Attorney.
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
which, individually or together, represent a
fundamental change in the information set forth in the
registration statement; and
(iii) To include any additional or changed material
information on the plan of distribution;
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
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<PAGE>
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 determining liability under the Securities
Act of 1933, each post-effective amendment shall be treated
as a new registration statement of the securities offered and
the offering of the securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from
registration any of the securities being registered which
remain unsold at the termination of the offering.
(b) 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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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 Eugene, State of Oregon, on July
31, 1996.
PERCON INCORPORATED
By MICHAEL P. COUGHLIN
-------------------------------
Michael P. Coughlin,
President and Chief Executive Offer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on July 31, 1996.
Signature Title
MICHAEL P. COUGHLIN President, Chief Executive Officer
- ---------------------------------- and Director (Principal Executive
Michael P. Coughlin Officer)
*G. SCOTT PURCELL Chief Financial Officer
- ---------------------------------- (Principal Financial and
G. Scott Purcell Accounting Officer)
*ANDY J. STORMENT Executive Vice President, Chief
- ---------------------------------- Operating Officer, Secretary,
Andy J. Storment Treasurer and Director
*ARLEN I. PRENTICE Chairman of the Board
- ----------------------------------
Arlen I. Prentice
*DONALD K. SKINNER Director
- ----------------------------------
Donald K. Skinner
*By MICHAEL P. COUGHLIN
-------------------------------------
Michael P. Coughlin, Attorney-in-Fact
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<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 and related Prospectus of our report
dated January 26, 1996 (March 7, 1996 as to Note 16) appearing on page F-1
of the Annual Report on Form 10- KSB of Percon Incorporated for the fiscal
year ended December 31, 1995.
COOPERS & LYBRAND L.L.P.
Eugene, Oregon
August 1, 1996
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<PAGE>
EXHIBIT INDEX
Sequential
Exhibit Page
Number Document Description Number
- ------ -------------------- ------
4.1 Amended and Restated Articles of Incorporation
of the Company (incorporated by reference to
Exhibit 3.1a to the Company's Registration
Statement on Form SB-2, File No. 33-93598-LA
(the "Form SB-2")).
4.2 Bylaws of the Company (incorporated by
reference to Exhibit 3.2a to the Form SB-2).
5.1 Opinion of Counsel.
23.1 Consent of Independent Accountants (see
page II-6).
23.2 Consent of Stoel Rives LLP (see Exhibit 5.1).
24.1 Powers of Attorney.
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EXHIBIT 5.1
August 1, 1996
Board of Directors
Percon Incorporated
1720 Willow Creek Circle, Suite 530
Eugene, Oregon 97402-9171
We have acted as counsel for Percon Incorporated (the "Company") in
connection with the filing of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended,
covering 500,000 shares of common stock (the "Shares") of the Company
issuable in connection with the Company's 1995 Stock Incentive Plan (the
"Plan"). We have reviewed the corporate actions of the Company in
connection with this matter and have examined those documents, corporate
records, and other instruments we deemed necessary for the purposes of this
opinion.
Based on the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of Washington; and
2. The Shares have been duly authorized and, when issued pursuant to
the Plan and in accordance with the resolutions adopted by the Board of
Directors of the Company, will be legally issued, fully paid, and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
STOEL RIVES LLP
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EXHIBIT 24.1
POWER OF ATTORNEY
-----------------
(1995 Stock Incentive Plan)
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of PERCON INCORPORATED, does hereby constitute and appoint
MICHAEL P. COUGHLIN and ANDY J. STORMENT, and each of them, his true and
lawful attorney and agent to do any and all acts and things and to execute
in his name (whether on behalf of Percon Incorporated or as an officer or
director of said Company, or otherwise) any and all instruments which said
attorney and agent may deem necessary or advisable in order to enable
Percon Incorporated to comply with the Securities Act of 1933, as amended,
and any requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration under the Securities Act of
1933, as amended, of shares of Common Stock of Percon Incorporated issuable
pursuant to the 1995 Stock Incentive Plan, including specifically, but
without limitation thereto, power and authority to sign his name (whether
on behalf of Percon Incorporated or as an officer or director of said
Company, or otherwise) to a Registration Statement on Form S-8 and any
amendment thereto (including any post-effective amendment) or application
for amendment thereto in respect to such Common Stock or any exhibits filed
therewith; and to file the same with the Securities and Exchange
Commission; and the undersigned does hereby ratify and confirm all that
said attorney and agent shall do or cause to be done by virtue hereof.
DATED: July 31, 1996
MICHAEL P. COUGHLIN ARLEN I. PRENTICE
- ---------------------------------- ----------------------------------
Michael P. Coughlin Arlen I. Prentice
G. SCOTT PURCELL DONALD K. SKINNER
- ---------------------------------- ----------------------------------
G. Scott Purcell Donald K. Skinner
ANDY J. STORMENT
- ----------------------------------
Andy J. Storment
