As Filed with the Securities and Exchange Commission on May 20, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------
LIBERTY TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in Charter)
PENNSYLVANIA 23-2295708
(State of Other Jurisdiction (I.R.S. Employer
of Incorporation or Identification
Organization) Number)
555 North Lane
Conshohocken, Pennsylvania 19428
(610) 834-0330
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
Mr. R. Nim Evatt
Chief Executive Officer
Liberty Technologies, Inc.
555 North Lane
Conshohocken, Pennsylvania 19428
(610) 834-0330
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------
Approximate date of commencement of proposed sale to public: As soon as
practicable after the effectiveness of this Registration Statement.
---------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. -----
-----
If any of the securities registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. -----
X
-----
Page 1 of 29 Pages
Exhibit Index on Page 22
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum
Title of offering aggregate Amount of
securities to Amount to price per offering registration
be registered be registered share (1) price (1) fee
-----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 250,000 $8.125 $2,031,250 $700.43
</TABLE>
(1) Estimated pursuant to Rule 457(c) under the Securities Act of 1933 solely
for the purpose of calculating the registration fee based on the average of the
high and low prices as reported on the Nasdaq National Market of The Nasdaq
Stock Market, Inc. as of May 16, 1996.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
Subject to Completion, Dated May 20, 1996.
250,000 Shares
LIBERTY TECHNOLOGIES, INC.
Common Stock
-------------------------
This Prospectus relates to the offering of 250,000 outstanding
shares (the "Shares") of Common Stock, par value $.01 per share ("Common
Stock"), of Liberty Technologies, Inc. ("Liberty" or the "Company") which may be
sold by a certain shareholder of the Company (the "Selling Shareholder").
The Company will not receive any proceeds from the sale of the
Shares of Common Stock offered hereby.
The Company's Common Stock is quoted on the Nasdaq National
Market under the trading symbol "LIBT." On May 16, 1996, the last reported sale
price of the Common Stock was $7.875 per share.
-------------------------
See "Risk Factors" beginning on page 6 for a discussion of certain
factors that should be considered by prospective investors
of the Common Stock offered hereby.
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
------------------------------
The date of this Prospectus is May __, 1996
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
AVAILABLE INFORMATION
The Company has filed a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"), with the Securities and Exchange Commission (the "Commission") relating
to the Shares of Common Stock offered hereby. This Prospectus does not contain
all the information set forth in the Registration Statement, certain portions of
which have been omitted pursuant to the rules and regulations of the Commission.
Reference is hereby made to the Registration Statement and to the exhibits
relating thereto for further information with respect to the Company and the
securities offered hereby. The Registration Statement, including exhibits and
schedules thereto, may be obtained from the Commission's principal office at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, upon payment of
the fees prescribed by the Commission. Statements contained in this Prospectus
as to the contents of any document referred to are not necessarily complete and
in each instance reference is made to the copy of the appropriate document filed
as an exhibit to, or incorporated by reference into, the Registration Statement,
each statement being qualified in all respects by such reference.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy and information statements and other
information with the Commission. Such reports, proxy and information statements
and other information filed by the Company can be inspected and copied at the
public reference facilities maintained by the Commission at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549 and at the following Regional Offices
of the Commission: Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511; and Seven World Trade Center, 13th Floor,
New York, New York 10048. Copies of such material may be obtained from the
Public Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. Reports, proxy and
information statements and other information concerning the Company can also be
inspected at the offices of the Nasdaq National Market, 1735 K Street, N.W.,
Washington, D.C. 20006-1506.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in this Prospectus by reference:
(a) The Company's Annual Reports on Form 10-K for the years
ended December 31, 1995, 1994 and 1993 (including the Company's amended Annual
Report on Form 10-K/A for the year ended December 31, 1994);
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1996, September 30, 1995, June 30, 1995 and March 31,
1995;
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<PAGE>
(c) The Company's Reports on Form 8-K dated April 8 and August
12, 1994 and Form 8-K/A dated June 6 and October 24, 1994; and
(d) The description of the Common Stock contained in the
Company's Registration Statement on Form 8-A filed on February 19, 1993,
including any amendments or reports filed for the purpose of updating such
description.
In addition, all documents and reports subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the termination of the
offering shall be deemed to be incorporated by reference herein from their
respective dates of filing. Any statements contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will furnish, without charge, to any person to whom a copy
of this Prospectus is delivered, upon such person's written or oral request, a
copy of any and all of the documents that have been incorporated by reference in
the Registration Statement and herein (not including exhibits to such documents,
unless such exhibits are specifically incorporated by reference into such
documents). The Company will also furnish, without charge, to any such person
upon such person's written or oral request, a copy of the Company's most recent
Annual Report to Shareholders. Any such request should be directed to the
Corporate Secretary, Liberty Technologies, Inc., 555 North Lane, Conshohocken,
Pennsylvania 19428, telephone number: (610) 834- 0330.
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<PAGE>
THE COMPANY
This Prospectus contains certain forward-looking statements which
involve risks and uncertainties. The Company's actual results may differ
significantly from the results discussed in the forward-looking statements.
Factors that might cause such a difference include, but are not limited to,
those discussed under "Risk Factors."
The Company, founded in 1984, develops, manufactures, markets and sells
diagnostic, condition monitoring and nondestructive evaluation systems and
provides related services to customers in the worldwide power and process
industrial markets, such as the chemical, petrochemical, pulp and paper and
nuclear utility industries. Liberty's products and services are designed to
reduce operating and maintenance costs and increase efficiency, reliability and
safety of plant operations. The Company has established certain strategic
technical and commercial alliances to advance its business objectives, including
to support product development and the sales and marketing of diagnostic systems
and services.
Liberty is comprised of four operating units to support its mission:
Product Operations, Liberty Technical Services, Imaging Systems Division and
International Business Development.
Liberty's Product Operations provides performance and condition
monitoring products to prevent unplanned downtime, improve asset utilization and
increase plant safety. Liberty's proprietary products gather and interpret
operating data of valves, turbines, engines, compressors, motors, motor-driven
equipment, pumps and fans. The products utilize sensors, instruments and
proprietary software that capture and log data for trending and analysis.
Liberty Technical Services provides comprehensive nondestructive and
dynamic testing services for customers in the power, chemical, paper, petroleum
and construction industries. Dynamic testing services are provided for plant
components including valves, pumps, fans, compressors, turbines, engines, motors
and motor-driven equipment. Nondestructive evaluation services include visual
inspection, and ultrasonic, radiographic, dye penetrant and magnetic particle
technologies. Special services include process safety management, plant
inspection, computerized reporting and training in nondestructive testing.
The Imaging Systems Division concentrates exclusively on product and
market development of the Company's RADView Digital Radiography product line.
The Company believes that RADView technology offers significant advancements
beyond the scope of conventional industrial radiography, enabling faster,
more accurate, lower cost and safer methods for acquiring and analyzing
radiographic information. During 1995, Liberty released the first phase, the
Film Digitizer and Workstation, which converts existing
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<PAGE>
radiographic film to a digital format. The second phase, Filmless Radiography,
which replaces conventional film with reusable phosphor screens, is planned for
release in 1996. The Imaging Systems Division focuses on marketing to customers
in the power, process and aerospace industries.
During 1995, the Company established an International Business
Development unit to expand its presence worldwide. In December 1995, the Company
formed a joint venture company, Liberty Maintenance Predictive S.A.S., with
French-owned Electricite de France, the largest utility in the world, to provide
predictive maintenance products and related services for the safe, reliable
operation of electric power and industrial plants in the European Union. Liberty
intends to establish additional business alliances, joint ventures and
partnerships in various locations around the world where appropriate to meet its
business objectives.
The Company has three concurrent strategies to support its mission to
provide cost-effective, technologically advanced diagnostic, condition
monitoring and nondestructive evaluation products and services for industries
worldwide. They are as follows:
o Expand Presence Worldwide
o Offer Value-Added Products and Services
o Differentiate on Service and Technology
As part of the Company's strategic direction to extend its marketing
reach to industries worldwide, the Company has made, and will continue to seek,
when consistent with its business objectives, acquisitions that will position
the Company for sustainable, long-term growth. The acquisitions outlined below
have enlarged the Company's product and service portfolio and significantly
improved access to various industries for its portfolio of products and
services.
In August 1994, the Company acquired Beta Monitors & Controls Ltd.
("Beta"), a Canadian-based company, whose proprietary systems analyze the
mechanical condition, performance, and vibration characteristics of engines,
compressors, pumps, motors, turbines and industrial processes. Beta's systems
include sensors and probes, signal processors and proprietary software. The
Company's acquisition of Beta created marketing opportunities in the hydrocarbon
and other process industries where Beta has long-standing customer
relationships.
In March 1994, the Company acquired Charleston, SC-based Industrial NDT
Company, Inc. ("INDT"), a supplier of nondestructive testing services in the
industrial market. INDT's services utilize visual inspection and ultrasonic,
radiographic, dye penetrant and magnetic particle technologies to inspect
equipment, such as pressure vessels, above-ground storage tanks, pipelines,
boilers and weldments.
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<PAGE>
In February 1993, the Company expanded its direct services and training
capabilities through its acquisition of Boggs Technical Services, Inc.
("Boggs"), a supplier of valve testing, repair, diagnostic services and
personnel training.
In 1995, Liberty integrated the operations of its various subsidiaries
and divisions. Liberty's Product Operations is comprised of the Company's
original business unit and Beta. Liberty Technical Services was formed by the
combination of Boggs and INDT.
RISK FACTORS
Prospective investors should consider carefully the following factors,
in addition to other information contained in this Prospectus, in evaluating an
investment in the Common Stock offered hereby.
Quarterly Fluctuations of Results of Operations. The Company has
experienced significant variability of operating results from quarter to
quarter, depending in part on the timing of major product and service orders.
This variability may continue in the future. In addition, the Company
experienced net losses for each of the years ended December 31, 1994 and 1995
and for the quarter ended March 31, 1996, in the case of 1995 as a result of
non-recurring charges from the restructuring of its product and service
operations and the write-off of capitalized software costs. The Company's
revenues and operating results may fluctuate as a result of other factors as
well, including seasonal patterns of capital spending by customers, the timing
and receipt of orders, competition, pricing, new product introductions by the
Company or its competitors, levels of market acceptance for new products, and
general economic and political factors. There can be no assurance that the
Company will not suffer net losses in future periods for any of the foregoing
reasons.
Dependence on New Product Introductions and Market Acceptance. The
Company's growth and future financial performance depend in part upon its
ability to continue to develop and introduce new cost effective products, the
market acceptance of its new product introductions and its ability to enhance
existing products to meet technological advances and customer requirements.
There can be no assurance that any such products will be successfully developed
and introduced or that recently introduced products or future product
introductions will achieve market acceptance. Failure by the Company to
anticipate or respond adequately to changes in technology and customer
requirements, or delays in product development or introduction, could have a
material adverse effect on the Company's business.
Expansion of Presence in New Markets. The Company's growth and future
financial performance also depend in part on new markets for its technology and
products. The Company is actively seeking
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<PAGE>
to expand its presence in the international nuclear power and worldwide
industrial process markets, where the regulatory requirements for the testing of
safety-related equipment generally are significantly less stringent than in the
U.S. nuclear power industry. The Company believes that the cost effectiveness of
its systems is important to commercial acceptance in these markets, particularly
the process industries. There can be no assurance that the new products that the
Company has developed and recently introduced, or those that are currently under
development and expected to be introduced in the next several years, will gain
widespread commercial acceptance in these markets.
Management of Growth; Integration of Acquisitions. The Company's
revenues grew significantly between 1991 and 1995, both from internal growth and
the acquisitions of Beta, INDT and Boggs. This significant growth has resulted
in increased responsibilities for both existing and new management personnel. In
addition, acquisitions which may be consummated in the future may require
integration of the acquired operations into those of the Company. There can be
no assurance that the Company will be able to manage its expansion or
successfully integrate future acquired operations. The failure to do so could
adversely affect the Company's financial position or results of operations.
Patents and Proprietary Rights. The Company's current products and
those under development utilize the Company's proprietary and licensed
technologies. Although the Company relies on a combination of patent, copyright,
trademark and trade secret laws, employee and third-party nondisclosure
agreements and other methods to protect its products and technologies, there can
be no assurance as to the degree of protection that will be provided by these
means. The inability of the Company to maintain the proprietary nature of its
significant products and core technologies could have a material adverse effect
on the Company's results of operations.
Competition. The Company believes that competition in the power
generation and industrial equipment diagnostic testing markets is driven by
product performance, reliability, accuracy, ease of use and, particularly with
respect to process industries, cost effectiveness. Certain of the Company's
existing and potential competitors may have substantially greater financial,
research and development, sales and marketing, and production resources than the
Company and, as a result, may be better equipped to develop, test and market
their products. Accordingly, there is no assurance that the Company will be able
to compete effectively with these companies.
Dependence on and Ability to Attract and Retain Key Personnel. The
Company's success is dependent upon certain key management and technical
personnel. In addition, the Company's future success will depend in part on its
ability to continue to attract and retain qualified scientific, technical,
marketing and managerial personnel, who are in high demand. The loss of certain
of the Company's employees or an inability to attract and retain
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<PAGE>
additional qualified employees could adversely affect the Company's
business.
Risk of Product Liability. The Company's products include an inherent
risk of liability because they are used to diagnose critical equipment, the
failure of which could have adverse safety, environmental or economic
consequences. The Company is currently insured against such risks under its
general liability policies. The Company also is covered under the U.S. nuclear
power industry's nuclear liability insurance program against liability for
personal injury and off-site property damage arising from certain nuclear
related incidents. However, a successful product liability claim not covered
under the nuclear power liability insurance program and in excess of the
Company's aggregate insurance coverage could have a material adverse effect on
the Company. There can be no assurance that product liability insurance will
continue to be available to the Company in sufficient amounts or at acceptable
costs.
Risk of Failure of Sources of Supply. The Company presently has
multiple sources of supply for most critical components used in its systems,
although for economic and quality control reasons the Company utilizes single
sources of supply for certain components. In situations where it relies on
single sources of supply, the Company believes that an adequate quantity of
components is available to meet its foreseeable needs, and, to date, the Company
generally has been able to obtain supplies of such components in a timely manner
from these sources. However, failure of sources of supply and the inability of
the Company to develop alternative sources of supply as required in the future
could have a material adverse effect on the Company's operations.
Possible Volatility of Stock Price. The market prices for common stocks
of technology companies, including the Company, have at times been highly
volatile. Future announcements concerning the Company or its competitors,
including the results of technological innovations or new commercial products,
developments concerning proprietary rights, as well as period-to-period
variances in financial results, could cause the market price of the Common Stock
to fluctuate. In addition, the stock market has in the past experienced
significant price and volume fluctuations that have affected the market price
for many growth companies, though unrelated to the operating performance of
these companies.
No Dividends on Common Stock. The Company expects that its future
earnings, if any, will be retained for the operation and expansion of the
Company's business, and that it will not pay cash dividends for the foreseeable
future.
USE OF PROCEEDS
The Company will receive no proceeds from any sales of Shares of Common
Stock by the Selling Shareholder.
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<PAGE>
SELLING SHAREHOLDER
The following table sets forth as of May 16, 1996 information with
respect to the beneficial ownership of the Company's Common Stock by the Selling
Shareholder. Unless otherwise indicated, the shareholder listed below possesses
sole voting and investment power with respect to the shares listed.
Beneficial Ownership
--------------------------------------------
Percentage
of
Shares
Number Outstanding Shares
of Prior Being
Name and Address Shares to Offering Registered
---------------- ------ ----------- ----------
Edison Venture Fund, L.P. 722,972(1) 14.6% 250,000
997 Lenox Drive #3
Lawrenceville, NJ 08648
---------------
(1) Based upon the shares reported in a Schedule 13G dated February 13,
1996 and filed with the Commission, less the 198,875 shares believed by the
Company to have been sold by the Selling Shareholder pursuant to Rule 144 under
the Securities Act of 1933 between May 8 and May 15, 1996, based on Forms 144
filed with the Commission and Brokers' Representation letters signed by
Pennsylvania Merchant Group Ltd and Hambrecht & Quist LLC. Mr. Richard J.
Defieux, a member of the Board of Directors of the Company, is a General Partner
of Edison Partners, L.P., the general partner of Edison Venture Fund, L.P. Mr.
Defieux, together with the other general partners of Edison Partners, L.P.,
shares voting and investment power with respect to the shares owned by Edison
Venture Fund, L.P. Mr. Defieux does not own any outstanding shares of Common
Stock in his individual capacity and disclaims beneficial ownership of the
shares held by Edison Venture Fund, L.P. except as to his proportionate
partnership interest therein. Does not include stock options granted by the
Company to Mr. Defieux, which are currently exercisable or exercisable within 60
days of May 16, 1996 to purchase 7,500 shares of Common Stock.
The Company will receive no proceeds from any sales of the Shares under
this Prospectus by the Selling Shareholder.
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<PAGE>
PLAN OF DISTRIBUTION
The Company has been advised by the Selling Shareholder that it, or its
pledgees, donees, transferees or other successors in interest, may sell all, a
portion or none of the Shares offered by it hereby from time to time. Any such
sales may be in one or more transactions in the over-the-counter market at
prices prevailing at the times of such sales or in private sales of the
securities at prices related to the prevailing market prices or negotiated
prices. The sales may involve (a) a block transaction in which the broker or
dealer so engaged will attempt to sell the Shares as agent but may position and
resell a portion of the block as principal to facilitate the transaction, (b) a
purchase by a broker or dealer as principal and a resale by such broker or
dealer for his account pursuant to this Prospectus, or (c) ordinary brokerage
transactions in which the broker will solicit purchasers. Broker-dealers may
receive compensation in the form of underwriting discounts, concessions or
commissions (which compensation may be in excess of customary commissions). The
Selling Shareholder and any broker-dealers that participate in the distribution
of the Shares may be deemed to be underwriters and any commissions received by
them and any profit on the resale positioned by them may be deemed to be
underwriting discounts and commissions under the Act.
There is no assurance that the Selling Shareholder will sell any or all
of the Shares offered hereby. The Company will receive no proceeds from any
sales of the Shares offered hereby by the Selling Shareholder.
The Registration Statement of which this Prospectus is a part has been
filed with the Commission by the Company upon the request of the Selling
Shareholder in accordance with the terms of the registration rights provisions
of that certain Stock Purchase Agreement dated February 23, 1989 by and among
the Company and certain investors, including the Selling Shareholder. Such
Agreement also imposes certain restrictions on the transfer of the Shares by the
Selling Shareholder other than with respect to sales pursuant to a registered
offering. In addition, the Company has been advised by the Selling Shareholder
that, if it does not sell all of the Shares in this Offering under this
Prospectus, it or its pledgees, donees, transferees or other successors in
interest may sell some or all of the remaining Shares pursuant to Rule 144 under
the Act.
The Selling Shareholder has agreed to pay the filing fees, costs and
expenses associated with such Registration Statement, including compliance
with any state blue sky requirements, commissions and discounts of
underwriters, dealers or agents, if any, and any stock transfer taxes. The
Company has also agreed to indemnify the Selling Shareholder and any
underwriters for certain civil liabilities in connection with such
Registration Statement and the securities offered thereby and hereby,
including liabilities under the Act.
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<PAGE>
LEGAL MATTERS
The validity of the Shares of Common Stock offered hereby is being
passed upon for the Company by Pepper, Hamilton & Scheetz, Berwyn, Pennsylvania.
James D. Rosener, a partner of Pepper, Hamilton & Scheetz, is a member of the
Board of Directors of the Company and holds options to purchase an aggregate of
12,500 shares of Common Stock.
EXPERTS
The Consolidated Financial Statements and Consolidated Financial
Statement Schedule of Liberty as of December 31, 1995 and 1994 and for each of
the three years in the period ended December 31, 1995 incorporated by reference
into this Prospectus and in the Registration Statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in giving said reports.
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<PAGE>
No dealer, salesman or other person has been authorized to give any information
or to make any representations other than those contained in this Prospectus in
connection with the offer made hereby, and, if given or made, such information
or representations must not be relied upon as having been authorized by the
Company. This Prospectus does not constitute an offer to sell, or a solicitation
of an offer to buy, the securities offered hereby to any person in any state or
other jurisdiction in which such offer or solicitation is unlawful. The delivery
of this Prospectus at any time does not imply that information contained herein
is correct as of any time subsequent to its date.
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TABLE OF CONTENTS
Page
----
Available Information................................... 2
Incorporation of Certain
Documents by Reference.............................. 2
The Company............................................. 4
Risk Factors ........................................... 6
Use of Proceeds ........................................ 8
Selling Shareholders.................................... 9
Plan of Distribution.................................... 10
Legal Matters .......................................... 11
Experts ................................................ 11
250,000 Shares
LIBERTY TECHNOLOGIES, INC.
COMMON STOCK
--------------
PROSPECTUS
--------------
May __, 1996
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
SEC registration fee........................... $ 700 *
Accounting fees and expenses................... 1,000 **
Legal fees and expenses........................ 3,000 **
Printing and Miscellaneous..................... 800 **
--------
Total..................................... $ 5,500 **
========
---------------
* Actual
** Estimated
Item 15. Indemnification of Directors and Officers.
Pursuant to Sections 1741-1747 of the Pennsylvania Business Corporation
Law of 1988, as amended ("BCL"), Article IV of the Company's Bylaws provides
that the Company shall, in the case of directors and offices, and may, in the
case employees and agents, indemnify any such person who is or was a party
(other than a party acting on his or her own behalf) or who is threatened to be
made such a party, to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (including
actions brought by or in the right of the Company where certain standards of
conduct have been met), by reason of the fact that such person is or was a
director or officer of the Company, or is or was serving at the request of the
Company on behalf of another enterprise, against expenses (including attorney's
fees), judgments, fines and amount paid in settlement actually and reasonably
incurred by him or her in connection with such action if he or she met certain
requisite standards of conduct. In all such cases, the Company shall indemnify
any such person against all such expenses actually and reasonably incurred by
him or her in connection with any such action to the extent that such person has
been successful on the merits or in defense of any such action. The
indemnification provisions of the Bylaws are non-exclusive.
Pursuant to Section 1713 of the BCL, Section 4.15 of Article IV of the
Company's Bylaws provides that a director shall not be liable to the Company for
monetary damages as such for any action taken or omitted unless the director
breaches or fails to perform a duty of his office and that breach or failure to
perform constitutes self-dealing, willful misconduct or recklessness. This
limitation does not apply to criminal liability or liability for the payment of
taxes. The Company believes that the foregoing
II-1
<PAGE>
provisions will assist it in securing and maintaining the services of qualified
directors who are not employees of the Company.
Item 16. Exhibits.
Exhibit
No. Description
------- -----------
2.1 Agreement and Plan of Merger dated as of March 11, 1994 by and among
the Company, Liberty Acquisition Corp., Industrial NDT Company,
Inc., John D. Ridgeway, Jr. and Sandra R. Miles.(2)
2.2 Registration Rights and Stock Restriction Agreement between the
Company and the shareholders of INDT dated as of March 28, 1994(2)
2.3 Employment Agreements between the Company, Liberty Acquisition
Corp., and each of John D. Ridgeway, Jr. and Sandra R. Miles dated
as of March 28, 1994(2)
2.4 Stock Purchase Agreement dated as of August 9, 1994 by and among
Liberty Technologies, Inc., 3039111 Canada, Ltd., and the
shareholders of Beta Monitors & Controls, Ltd. (which are listed on
Schedule A attached to such Stock Purchase Agreement.)(3)
2.5 Employment Agreement dated August 12, 1994 by and between Beta
Monitors & Controls, Ltd. and Bryan Long, President of Beta Monitors
& Controls, Ltd.(3)
2.6 Escrow Agreement dated August 12, 1994 by and among Liberty
Technologies, Inc., 3039111 Canada, Inc., the shareholders of Beta
Monitors & Controls, Ltd. (listed on Schedule A to the Stock
Purchase Agreement) and Montreal Trust Company of Canada, as escrow
agent.(3)
3.1 Restated Certificate of Incorporation of the Company(1)
3.2 Bylaws of the Company, Effective November 10, 1992(1)
4.1 Specimen Stock Certificate(1)
5 Opinion of Pepper, Hamilton & Scheetz
10.1 1992 Stock Option Plan and related Form of Stock Option Agreement(1)
10.2 1988 Stock Option Plan(1)
10.3 Employee Stock Purchase Plan(1)
10.4 Retirement Savings Plan (1)
10.5 Agreements between the Company and each of R. Nim Evatt and
Anthony L. Moffa(1)
10.6 Lease between the Company and Lee Park Investors, L.P. with
respect to the Company's principal executive offices(1)
10.7 Asset Purchase Agreement between the Company, Boggs
Technical Services, Inc. and Marcus Boggs(1)
10.9 Form of Employee Innovation and Non-Disclosure Agreement(1)
10.10 Joint Development Agreement between the Company and GE
Nuclear Energy(1)
10.11 Agreement between the Company and B&W Nuclear Services(1)
II-2
<PAGE>
10.13 Settlement Termination of Product Licensing Agreement(1)
10.14 Restrictive Covenant Agreement between the Company and Marcus
Boggs(1)
10.15 Agreement between the Company and Richard H. Tuft(1)
10.16 Credit Agreement between the Company and First Fidelity Bank, N.A.,
as amended dated December 30, 1995(6)
10.17 Joint Development Agreement between the Company and EdF(4)
10.18 Agreement between the Company and GE Nuclear Energy with respect to
diagnostic testing of international boiling water nuclear reactors
dated June 14, 1993(4)
10.19 Joint Venture Agreement between the Company and CHARTH, an affiliate
of EdF, dated November 22, 1994(5)
10.20 Amended Joint Venture Agreement between the Company and CHARTH dated
December 22, 1995(6)
10.21 Teaming Agreement between Framatome S.A. and Liberty for Spain dated
March 1, 1995(6)
10.22 Technology Transfer and License Agreement between the Company and
Quantex Corporation dated June 14, 1994(6)
11.1 Earnings per share calculation(6)
21.1 Subsidiaries(6)
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Pepper, Hamilton & Scheetz (Included in Exhibit 5)
24 Power of Attorney (See Signature Page at page II-5)
---------------
(1) Filed as an exhibit to the Company's Form S-1 Registration Statement, No.
33-58600, and incorporated herein by this reference.
(2) Filed as an exhibit to the Company's Report on Form 8-K dated April 8, 1994,
and incorporated herein by this reference.
(3) Filed as exhibit to the Company's Report on Form 8-K dated August 24, 1994,
and incorporated herein by this reference.
(4) Filed as an exhibit to the Company's Report on Form 10-K for the year ended
December 31, 1993, and incorporated herein by this reference.
(5) Filed as an exhibit to the Company's Report on Form 10-K for the year ended
December 31, 1994, and incorporated herein by this reference.
(6) Filed as an exhibit to the Company's Report on Form 10-K for the year ended
December 31, 1995, and incorporated herein by this reference.
II-3
<PAGE>
Item 17. Undertakings.
The Company 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 Act; (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 clauses (i)
and (ii) above do not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic reports filed
by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this Registration Statement;
(2) that, for the purpose of determining any liability under
the Act, 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; and
(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 Company hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this 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
Act 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 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
II-4
<PAGE>
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.
II-5
<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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Philadelphia, Pennsylvania, on May 17, 1996.
LIBERTY TECHNOLOGIES, INC.
By: /s/ R. Nim Evatt
-----------------------------
R. Nim Evatt, President
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints R. Nim Evatt and Daniel G. Clare, and
each or any of them, his true and lawful attorney-in-fact and agent, 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 this Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, 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, his or her substitutes or substitute, 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.
Date: May 17, 1996 /s/ R. Nim Evatt
------------------------
R. Nim Evatt, President,
Chief Executive Officer and
Chairman of the Board
II-6
<PAGE>
Date: May 17, 1996 /s/ Daniel G. Clare
---------------------
Daniel G. Clare, Vice President-
Finance, Chief Financial Officer
and Treasurer
Date: May 17, 1996 /s/ Richard J. Defieux
------------------------
Richard J. Defieux, Director
Date: May 17, 1996 /s/ John A. Hinds
-------------------
John A. Hinds, Director
Date: May 17, 1996 /s/ Robert L. Leon
-------------------
Robert L. Leon, Director
Date: May 17, 1996 /s/ James D. Rosener
----------------------
James D. Rosener, Director
II-7
<PAGE>
EXHIBIT INDEX
Exhibit Sequentially
No. Description Numbered Page
------- ----------- -------------
2.1 Agreement and Plan of Merger dated as of
March 11, 1994 by and among the Company,
Liberty Acquisition Corp., Industrial NDT
Company, Inc., John D. Ridgeway, Jr. and
Sandra R. Miles.(2).......................................
2.2 Registration Rights and Stock Restriction
Agreement between the Company and the
shareholders of INDT dated as of March 28,
1994(2)...................................................
2.3 Employment Agreements between the Company,
Liberty Acquisition Corp., and each of
John D. Ridgeway, Jr. and Sandra R. Miles
dated as of March 28, 1994(2).............................
2.4 Stock Purchase Agreement dated as of
August 9, 1994 by and among Liberty
Technologies, Inc., 3039111 Canada,
Ltd., and the shareholders of Beta
Monitors & Controls, Ltd. (which are
listed on Schedule A attached to such
Stock Purchase Agreement.)(3).............................
2.5 Employment Agreement dated August 12, 1994 by and
between Beta Monitors & Controls, Ltd. and
Bryan Long, President of Beta Monitors &
Controls, Ltd.(3).........................................
2.6 Escrow Agreement dated August 12, 1994 by and
among Liberty Technologies, Inc., 3039111
Canada, Inc., the shareholders of Beta
Monitors & Controls, Ltd. (listed on
Schedule A to the Stock Purchase Agreement)
and Montreal Trust Company of Canada, as
escrow agent.(3)..........................................
3.1 Restated Certificate of Incorporation of
the Company(1)............................................
3.2 Bylaws of the Company, Effective
November 10, 1992(1)......................................
4.1 Specimen Stock Certificate(1).............................
5 Opinion of Pepper, Hamilton & Scheetz.....................
10.1 1992 Stock Option Plan and related Form of
Stock Option Agreement(1).................................
10.2 1988 Stock Option Plan(1).................................
10.3 Employee Stock Purchase Plan(1)...........................
10.4 Retirement Savings Plan (1)...............................
10.5 Agreements between the Company and each
of R. Nim Evatt and Anthony L. Moffa(1)...................
10.6 Lease between the Company and Lee Park
Investors, L.P. with respect to the
Company's principal executive offices(1)..................
10.7 Asset Purchase Agreement between the
Company, Boggs Technical Services,
<PAGE>
Inc. and Marcus Boggs(1)..................................
10.9 Form of Employee Innovation and
Non-Disclosure Agreement(1)...............................
10.10 Joint Development Agreement between the
Company and GE Nuclear Energy(1)..........................
10.11 Agreement between the Company
and B&W Nuclear Services(1)...............................
10.13 Settlement Termination of
Product Licensing Agreement(1)............................
10.14 Restrictive Covenant Agreement
between the Company and Marcus Boggs(1)...................
10.15 Agreement between the Company
and Richard H. Tuft(1)....................................
10.16 Credit Agreement between the Company
and First Fidelity Bank, N.A.,
as amended dated December 30, 1995(6).....................
10.17 Joint Development Agreement between
the Company and EdF(4)....................................
10.18 Agreement between the Company and
GE Nuclear Energy with respect to diagnostic testing of
international boiling water nuclear reactors dated
June 14, 1993(4)..........................................
10.19 Joint Venture Agreement between the
Company and CHARTH, an affiliate of
EdF, dated November 22, 1994(5)...........................
10.20 Amended Joint Venture Agreement between the Company
and CHARTH dated December 22, 1995(6).....................
10.21 Teaming Agreement between Framatome S.A.
and Liberty for Spain dated March 1, 1995(6)
10.22 Technology Transfer and License Agreement
between the Company and Quantex Corporation
dated June 14, 1994(6)....................................
11.1 Earnings per share calculation(6).........................
21.1 Subsidiaries(6)...........................................
23.1 Consent of Arthur Andersen LLP............................
23.2 Consent of Pepper, Hamilton &
Scheetz (Included in Exhibit 5)...........................
24 Power of Attorney (See Signature
Page at page II-5)........................................
---------
(1) Filed as an exhibit to the Company's Form S-1 Registration
Statement, No. 33-58600, and incorporated herein by this
reference.
(2) Filed as an exhibit to the Company's Report on Form 8-K dated April 8,
1994, and incorporated herein by this reference.
(3) Filed as exhibit to the Company's Report on Form 8-K dated August 24,
1994, and incorporated herein by this reference.
<PAGE>
(4) Filed as an exhibit to the Company's Report on Form 10-K for the year
ended December 31, 1993, and incorporated herein by this reference.
(5) Filed as an exhibit to the Company's Report on Form 10-K for the year
ended December 31, 1994, and incorporated herein by this reference.
(6) Filed as an exhibit to the Company's Report on Form 10-K for the year
ended December 31, 1995, and incorporated herein by this reference.
<PAGE>
Exhibit 5
May 17, 1996
Liberty Technologies, Inc.
Lee Park, Suite 6000
555 North Lane
Conshohocken, PA 19428
Gentlemen:
We have acted as special counsel to Liberty Technologies,
Inc., a Pennsylvania corporation (the "Company"), in connection with the
preparation and filing with the Securities and Exchange Commission (the
"Commission") of a registration statement (the "Registration Statement") of the
Company on Form S-3 under the Securities Act of 1933, as amended (the "Act").
The Registration Statement relates to the proposed offer and sale by a certain
selling shareholder of the Company (the "Selling Shareholder") of up to 250,000
outstanding shares (the "Shares") of the Company's Common Stock, par value $.01
per share (the "Common Stock").
In this connection, we have examined the Registration
Statement, including the exhibits thereto, the originals or copies, certified or
otherwise identified to our satisfaction, of the Articles of Incorporation and
the By-Laws of the Company amended to date, resolutions of the Company's Board
of Directors and such other documents and corporate records relating to the
Company and the original issuance and sale of the Shares to the Selling
Shareholder as we have deemed appropriate. The opinion expressed herein is based
exclusively on the applicable provisions of the Pennsylvania Business
Corporation Law as in effect on the date hereof.
On the basis of the foregoing, we are of the opinion that the
Shares are duly authorized, validly issued, fully paid and nonassessable.
We hereby consent to the reference to our firm under the
caption "Legal Matters" in the Registration Statement and to the filing of this
opinion as an exhibit to the Registration Statement. Such consent does not
constitute a consent under Section 7 of the Act, since we have not certified any
part of
<PAGE>
Liberty Technologies, Inc.
Page 2
May 17, 1996
such Registration Statement and do not otherwise come within the categories of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission promulgated thereunder.
Very truly yours,
PEPPER, HAMILTON & SCHEETZ
By: /s/ James D. Rosener
----------------------
A Partner
<PAGE>
Exhibit 23.1
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Liberty Technologies, Inc.:
As independent public accountants, we hereby consent to the incorporation by
reference in this S-3 Registration Statement of our report dated February 6,
1996 included in Liberty Technologies, Inc.'s Form 10-K for the year ended
December 31, 1995 and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Philadelphia, PA
May 17, 1996
<PAGE>
