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As filed with the Securities and Exchange Commission on January 13, 1997
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
CMC INDUSTRIES, INC.
(Exact name of issuer as specified in its charter)
<TABLE>
<S> <C>
Delaware 62-1434910
(State of incorporation) (IRS Employer Identification No.)
</TABLE>
4950 Patrick Henry Drive
Santa Clara, California 95054
(Address of principal executive offices)
1990 EQUITY INCENTIVE PLAN, AS AMENDED
1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Matthew G. Landa
President and Chief Executive Officer
CMC Industries, Inc.
4950 Patrick Henry Drive
Santa Clara, California 95054
(Name and address of agent for service)
(408) 982-9999
(Telephone number, including area code, of agent for service)
Copy to:
Martin W. Korman, Esq.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
CALCULATION OF REGISTRATION FEE
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<CAPTION>
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share Offering Price Fee
---------------- ---------- --------- -------------- ---
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share, to be issued
under the 1996 Employee Stock 488,197 $8.075(1) $3,942,190.78(1) $1,194.60
Purchase Plan
Common Stock, par value 1,842,565(+) $9.50(2) $17,504,367.50(2) $5,304.35
$0.01 per share, to be issued
under the 1990 Equity Incentive Plan
</TABLE>
(1) Estimated in accordance with Rules 457(c) and 457(h) solely
for the purpose of calculating the registration fee on the
basis of $8.075, or 85% of the average of the high and low
sales prices of the Company's Common Stock on the Nasdaq
National Market on January 9, 1997.
(2) Estimated in accordance with Rules 457(c) and 457(h) solely
for the purpose of calculating the registration fee on the
basis of $9.50 per share, the average of the high and low
sales prices of the Company's Common Stock on the Nasdaq
National Market on January 9, 1997.
+ Calculated under the assumption that the maximum number of
shares issuable each year under the plan's "evergreen"
provision (five percent of the Company's Common Stock
outstanding on the last day of the immediately preceding year)
was so issued, and that the Company issues no other additional
Common Stock.
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CMC INDUSTRIES, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (CMC Industries, Inc. is sometimes referred
to herein as the "Company"):
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended July 31, 1996, filed pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the "1934 Act");
(b) The Company's Quarterly Report on Form 10-Q for the fiscal
period ended October 31, 1996, filed pursuant to Section 13 of the 1934
Act;
(c) The Company's Proxy Statement dated November 15, 1996
relating to the Company's 1996 Annual Meeting of Shareholders; and
(d) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A filed November 20,
1993 pursuant to Section 12(b) of the 1934 Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the 1934 Act on or after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's Board of Directors to grant, indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933.
The Company's Bylaws provide for the indemnification of its directors, officers,
employees and other agents to the maximum extent permitted by Delaware General
Corporation Law, and the Company has entered into agreements with its officers,
directors and certain key employees implementing such indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS
Exhibit
Number Description
------ -----------
4.1(1) 1990 Equity Incentive Plan, as amended.
4.2(1) 1996 Employee Stock Purchase Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-4).
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(1) Incorporated by reference to by the Company's Proxy Statement dated November
15, 1996 relating to the Company's 1996 Annual Meeting of Shareholders.
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 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.
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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.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Securities Act") may be permitted to directors,
officers and controlling persons of the Company pursuant to the Delaware General
Corporation Law, the Certificate of Incorporation of the Company, the Bylaws of
the Company, indemnification agreements entered into between the Company and its
officers and directors or otherwise, the Company has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company in successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered hereunder, the Company
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 of whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, CMC Industries, Inc., a corporation organized and existing under the
laws of the State of Delaware, 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 Santa Clara, State of
California, on this 13th day of January, 1997.
CMC INDUSTRIES, INC.
By: /s/ Matthew G. Landa
-----------------------------------
Matthew G. Landa
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Matthew G. Landa and Andrew J. Moley,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may 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.
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<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Matthew G. Landa President, Chief Executive Officer January 13, 1997
- ----------------------------------- and Director (Principal Executive
Matthew G. Landa Officer)
/s/ Andrew J. Moley Executive Vice President, Chief January 13, 1997
- ----------------------------------- Financial Officer and Director
Andrew J. Moley (Principal Financial and Accounting
Officer)
- ----------------------------------- Chairman of the Board
David S. Lee
/s/ Ira Coron
- ----------------------------------- Director January 13, 1997
Ira Coron
- ----------------------------------- Director
Frederick W. Gibbs
/s/ Charles Holloway
- ----------------------------------- Director January 13, 1997
Charles Holloway
</TABLE>
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INDEX TO EXHIBITS
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<CAPTION>
Sequentially
Exhibit Numbered
Number Description Page
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<S> <C>
4.1(1) 1990 Equity Incentive Plan, as amended................................................
4.2(1) 1996 Employee Stock Purchase Plan.....................................................
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation...........................................................................
23.1 Consent of Independent Accountants ...................................................
23.2 Consent of Counsel (contained in Exhibit 5.1).........................................
24.1 Power of Attorney (see Page II-4 of Registration Statement)...........................
</TABLE>
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(1) Incorporated by reference to by the Company's Proxy Statement dated November
15, 1996 relating to the Company's 1996 Annual Meeting of Shareholders.
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Exhibit 5.1
January 13, 1997
CMC Industries, Inc.
4950 Patrick Henry Drive
Santa Clara, CA 95054
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about January 13, 1997
(the "Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 488,197 additional shares of your Common
Stock, par value $0.01 per share, reserved for issuance pursuant to the 1996
Employee Stock Purchase Plan (the "Purchase Plan") and 1,842,565 additional
shares of your Common Stock, par value $0.01 per share, reserved for issuance
pursuant to the 1990 Equity Incentive Plan, as amended (the "Incentive Plan").
As your counsel in connection with the transaction, we have examined the
proceedings taken and are familiar with the proceedings proposed to be taken by
you in connection with the sale and issuance of the shares pursuant to the
Purchase Plan and the Incentive Plan.
It is our opinion, when issued and sold in the manner referred to in
the Plan, the shares will be legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and any amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated August 26,1996, except as
to Note 8, which is as of September 26, 1996, which appears on page 35 of the
1996 Annual Report to Shareholders of CMC Industries, Inc., which is
incorporated by reference in CMC Industries, Inc.'s Annual Report on Form 10-K
for the year ended July 31, 1996.
PRICE WATERHOUSE LLP
Memphis, Tennessee
January 10, 1997
