<PAGE> 1
As filed with the Securities and Exchange Commission on January 20, 2000
Registration No. 333-
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TRANSMATION, INC.
(Exact name of registrant as specified in its charter)
OHIO 16-0874418
(State or other jurisdiction of (I.R.S Employer
incorporation or organization) Identification No.)
10 VANTAGE POINT DRIVE
ROCHESTER, NEW YORK 14624
(Address of Principal Executive Offices) (Zip Code)
NON-STATUTORY STOCK OPTION AGREEMENT DATED AS OF APRIL 21, 1998
BETWEEN TRANSMATION, INC. AND BARRY F. WHARITY
NON-STATUTORY STOCK OPTION AGREEMENT DATED AS OF OCTOBER 28, 1998
BETWEEN TRANSMATION, INC. AND JOHN A. MISIASZEK
(Full titles of plans)
ROBERT G. KLIMASEWSKI
PRESIDENT AND CHIEF EXECUTIVE OFFICER
TRANSMATION, INC.
10 VANTAGE POINT DRIVE
ROCHESTER, NEW YORK 14624
(Name and address of agent for service)
716-352-7777
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Plan Title of Amount to Proposed maximum Proposed maximum Amount of
securities be offering price aggregate registration
to be registered per share(1) offering price(1) fee
registered
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<S> <C> <C> <C> <C> <C>
Non-Statutory Stock Option Common Stock, 25,000 $3.25 $81,250 $21.45
Agreement dated as of April par value $.50
21, 1998 between Transmation, per share
Inc. and Barry F. Wharity
- --------------------------------------------------------------------------------------------------------------------
Non-Statutory Stock Option Common Stock, 25,000 $3.25 $81,250 $21.45
Agreement dated as of October par value $.50
28, 1998 between Transmation, per share
Inc. and John A. Misiaszek
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Total 50,000 $3.25 $162,500 $42.90
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</TABLE>
(1) Estimated in accordance with Rule 457(c), as of January 19, 2000, solely
for the purpose of calculating the registration fee.
PURSUANT TO RULE 416, THERE ARE ALSO BEING REGISTERED SUCH ADDITIONAL SHARES OF
COMMON STOCK AS MAY BECOME ISSUABLE PURSUANT TO ANTI-DILUTION PROVISIONS OF EACH
OF THE PLANS.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Registrant previously filed with the
Securities and Exchange Commission are incorporated herein by reference:
(a) the Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 1999;
(b) the Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999;
(c) the Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999;
(d) the Registrant's Current Report on Form 8-K dated December 7, 1999; and
(e) the description of the Registrant's Common Stock, par value $.50 per
share, contained in the Registrant's Registration Statement on Form S-3
(Registration No. 333-42345), filed with the Securities and Exchange
Commission on December 16, 1997.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), 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 a part hereof from the date of filing of such 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 VI of the Registrant's Code of Regulations, as amended,
provides that the Registrant shall indemnify its directors and officers to the
fullest extent authorized by the Ohio General Corporation Law (the "OGCL").
With respect to indemnification of directors and officers, Section
1701.13 of the OGCL provides that a corporation may indemnify or agree to
indemnify any person who was or is a party, or is threatened to be made a party,
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, other than an action by or in
the right of the corporation, by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, trustee, officer, employee,
member, manager or agent of another corporation, limited liability company,
partnership, joint venture, trust or other enterprise, against expenses,
including
<PAGE> 3
attorneys' fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, if he had no reasonable cause to believe his
conduct was unlawful. Under this provision of the OGCL, the termination of any
action, suit or proceeding by judgment, order, settlement, or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
Furthermore, the OGCL provides that a corporation may indemnify or
agree to indemnify any person who was or is a party, or is threatened to be made
a party, to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, trustee, officer, employee, member, manager or agent of another
corporation, limited liability company, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit, if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of: (i) any claim, issue or matter as
to which such person is adjudged to be liable for negligence or misconduct in
the performance of his duty to the corporation unless, and only to the extent
that, the court of common pleas or the court in which such action or suit was
brought determines, upon application, that, despite the adjudication of
liability, but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as the court of
common pleas or such other court shall deem proper; or (ii) any action or suit
in which the only liability asserted against a director is pursuant to OGCL
Section 1701.95 (relating to unlawful loans, dividends, and distributions of
assets).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibits filed as part of this Registration Statement are listed on the
Index to Exhibits located at page 6 hereof.
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ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes (subject to the
proviso contained in Item 512(a) of Regulation S-K):
(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, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities 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;
(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, each filing of the
Registrant'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 herein, 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 may be permitted to directors, officers, controlling persons of
the Registrant pursuant to the provisions described under Item 6 above, 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 Securities 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 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 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 Rochester, State of New York, on this 20th day of
January, 2000.
TRANSMATION, INC.
By: /s/ John A. Misiaszek
-------------------------------------
John A. Misiaszek
Vice President - Finance
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated and on the 20th day of January, 2000.
SIGNATURE TITLE
Director, President, Chief Executive
* Officer (Principal Executive Officer)
- ----------------------------------
Robert G. Klimasewski
Vice President - Finance
/s/ John A. Misiaszek (Principal Financial Officer and
- ---------------------------------- Principal Accounting Officer)
John A. Misiaszek
- ---------------------------------- Director
G. Thomas Bowers
* Director
- ----------------------------------
Angelo J. Chiarella
* Director
- ----------------------------------
E. Lee Garelick
* Director
- ----------------------------------
Nancy D. Hessler
* Director
- ----------------------------------
Eric W. McInroy
* Director
- ----------------------------------
Cornelius J. Murphy
* Director
- ----------------------------------
Harvey J. Palmer
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<PAGE> 6
*
- ----------------------------------
Arthur M. Richardson Director
*By: /s/ John A. Misiaszek
- ----------------------------------
John A. Misiaszek
Attorney-in-Fact
-5-
<PAGE> 7
INDEX TO EXHIBITS
(4) Instruments defining the rights of security holders, including
indentures
(a) Articles of Incorporation of the Registrant, as amended
(Exhibit 4(a) and Exhibit 3(i))(1)
(b) Code of Regulations of the Registrant, as amended (Exhibit 3)(2)
(c) Credit and Loan Agreement dated August 7, 1998 between
Transmation, Inc. and KeyBank National Association (Exhibit
4(a))(3)
*(5.1) Opinion of Harter, Secrest & Emery LLP
(15) Letter re unaudited interim financial information
Not Applicable.
*(23.1) Consent of PricewaterhouseCoopers LLP
*(23.2) Consent of Harter, Secrest & Emery LLP (contained in Exhibit 5.1)
*(24.1) Power of Attorney
(99) Additional Exhibits
(a) Non-Statutory Stock Option Agreement dated as of April 21, 1998
between Transmation, Inc. and Barry F. Wharity (Exhibit 10(d))(4).
(b) Non-Statutory Stock Option Agreement dated as of October 28, 1998
between Transmation, Inc. and John A. Misiaszek. (Exhibit 10(b)).(5)
- ----------------------------
* Exhibit filed with this Registration Statement.
(1) Exhibit previously filed as part of and is incorporated herein by reference
to the Registrant's Registration Statement on Form S-8 (Registration No.
33-61665) filed on August 8, 1995, and the Registrant's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1999. The exhibit numbers
contained in parenthesis refer to the exhibit number in such Registration
Statement on Form S-8 and such Quarterly Report on Form 10-Q.
(2) Exhibit previously filed as part of and is incorporated herein by reference
to the Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 1988. The exhibit number contained in parenthesis refers to the
exhibit number in such Annual Report on Form 10-K.
(3) Exhibit previously filed as part of and is incorporated herein by reference
to the Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998. The exhibit number contained in parenthesis refers to
the exhibit number in such Quarterly Report on Form 10-Q.
(4) Exhibit previously filed as part of and is incorporated herein by reference
to the Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 1998. The exhibit number contained in parenthesis refers to the
exhibit number in such Annual Report on Form 10-K.
(5) Exhibit previously filed as part of and is incorporated herein by reference
to the Registrant's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1998. The exhibit number contained in parenthesis refers to
the exhibit number in such Quarterly Report on Form 10-Q.
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<PAGE> 1
EXHIBIT 5.1
(HARTER, SECREST & EMERY LLP LETTERHEAD)
January 20, 2000
Transmation, Inc.
10 Vantage Point Drive
Rochester, NY 14624
Re: Transmation, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested our opinion in connection with your Registration
Statement on Form S-8, filed this date under the Securities Act of 1933, as
amended, with the Securities and Exchange Commission (the "Registration
Statement"), in respect of an aggregate of 50,000 authorized and unissued shares
of the Common Stock, par value $.50 per share (the "Common Stock"), of
Transmation, Inc. (the "Corporation"), which may be issued as follows:
a. upon exercise, after the date hereof, of options heretofore granted
under that certain Non-Statutory Stock Option Agreement dated as of April 21,
1998, between the Corporation and Barry F. Wharity; or
b. upon exercise, after the date hereof, of options heretofore granted
under that certain Non-Statutory Stock Option Agreement dated as of October 28,
1998, between the Corporation and John A. Misiaszek
(such documents are herein collectively referred to as the "Plans").
We have examined the following corporate records and proceedings of the
Corporation in connection with the preparation of this opinion: its Articles of
Incorporation, as amended to date; its Code of Regulations as currently in force
and effect; its Minute Books, containing minutes and records of other
proceedings of its shareholders, its Board of Directors and the Compensation and
Benefits Committee and Stock Option Committee of the Board of Directors, from
the date of incorporation to the date hereof; the Plans; the Registration
Statement; applicable provisions of the laws of the State of Ohio; and such
other documents and matters as we deemed necessary.
In rendering this opinion, we have made such examination of laws as we
have deemed relevant for the purposes hereof. As to various questions of fact
material to this opinion, we have relied upon representations and/or
certificates of officers of the Corporation, certificates and documents issued
by public officials and authorities, and information received from searchers of
public records.
<PAGE> 2
Based upon and in reliance on the foregoing, we are of the opinion that:
1. The Corporation has been duly incorporated and is validly
existing under the laws of the State of Ohio.
2. The Corporation has the authority to issue an aggregate of
50,000 shares of Common Stock pursuant to the terms of the Plans.
3. The shares of Common Stock to be issued and sold by the
Corporation will, when sold and paid for in accordance with the provisions of
the respective Plans, be validly authorized and legally issued and outstanding,
fully paid and non-assessable.
We hereby consent to be named in the Registration Statement as attorneys
passing upon legal matters in connection with the issuance and sale of the
50,000 shares of Common Stock covered thereby, and we hereby consent to the
filing of this opinion as Exhibit 5.1 to the Registration Statement.
Very truly yours,
/s/ Harter, Secrest & Emery LLP
<PAGE> 1
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 May 14, 1999 relating to the
financial statements, which appears in the 1999 Annual Report to
Stockholders of Transmation, Inc., which is incorporated by reference in
Transmation Inc.'s Annual Report on Form 10-K for the year ended March 31,
1999. We also consent to the incorporation by reference of our report dated May
14, 1999 relating to the financial statement schedule, which appears in such
annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Rochester New York
January 20, 2000
<PAGE> 1
EXHIBIT 24.1
TRANSMATION, INC.
OFFICERS' AND DIRECTORS' POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That each of the undersigned, being an
Officer or a Director of TRANSMATION, INC., an Ohio corporation, which
corporation anticipates filing with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-8 for the registration of certain shares of its Common Stock
issuable upon the exercise of options heretofore granted by the Company pursuant
to certain Non-Statutory Stock Option Agreements between the Company and each of
Barry F. Wharity, John A. Misiaszek and James A. Searles, DOES HEREBY constitute
and appoint ERIC W. MCINROY, ROBERT G. KLIMASEWSKI and JOHN A. MISIASZEK and
each of them, the attorneys of the undersigned with full power of substitution
for and in the name, place and stead of the undersigned:
To sign and file on behalf of the undersigned such Registration Statement
and any and all amendments, including post-effective amendments, to such
Registration Statement and exhibits thereto and any and all applications or
other documents to be filed with the Securities and Exchange Commission
pertaining to the securities covered by said Registration Statement, with full
power and authority to do and perform any and all acts and things whatsoever
under and in accordance with the Securities Act of 1933, as amended, and the
rules and regulations issued thereunder by said Commission, hereby ratifying and
approving the acts of such attorney or attorneys, or any such substitute or
substitutes.
This Instrument may be executed in several counterparts, each of which
shall be an original but all of which together shall constitute one and the same
Instrument.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his or her
hand and seal as of the respective dates set forth below.
June 16, 1999 /s/ Eric W. McInroy
-----------------------------------------
Eric W. McInroy,
President, Chief Executive Officer
and Director
June 16, 1999 /s/ Robert G. Klimasewski
-----------------------------------------
Robert G. Klimasewski,
Chairman of the Board
and Director
<PAGE> 2
June 16, 1999 /s/ John A. Misiaszek
-----------------------------------------
John A. Misiaszek,
Vice President-Finance
June 16, 1999 /s/ Angelo J. Chiarella
-----------------------------------------
Angelo J. Chiarella, Director
June 16, 1999 /s/ E. Lee Garelick
-----------------------------------------
E. Lee Garelick, Director
June 16, 1999 /s/ Nancy D. Hessler
-----------------------------------------
Nancy D. Hessler, Director
June 16, 1999 /s/ Cornelius J. Murphy
-----------------------------------------
Cornelius J. Murphy, Director
June 16, 1999 /s/ John W. Oberlies
-----------------------------------------
John W. Oberlies, Director
June 16, 1999 /s/ Harvey J. Palmer
-----------------------------------------
Harvey J. Palmer, Director
June 16, 1999 /s/ Arthur M. Richardson
-----------------------------------------
Arthur M. Richardson, Director
-2-
<PAGE> 3
State of New York)
County of Monroe) ss.
On this 16th day of June, 1999, before me personally came ERIC W. MCINROY,
to me known and known to me to be the individual described in, and who executed
the foregoing instrument, and he acknowledged to me that he executed the same.
/s/ Susan Mascette Brandt
-----------------------------------------
Notary Public
State of New York)
County of Monroe) ss.
On this 16th day of June, 1999, before me personally came ROBERT G.
KLIMASEWSKI, to me known and known to me to be the individual described in, and
who executed the foregoing instrument, and he acknowledged to me that he
executed the same.
/s/ Susan Mascette Brandt
-----------------------------------------
Notary Public
State of New York)
County of Monroe) ss:
On this 16th day of June, 1999, before me personally came JOHN A.
MISIASZEK, to me known and known to me to be the individual described in, and
who executed the foregoing instrument, and he acknowledged to me that he
executed the same.
/s/ Susan Mascette Brandt
-----------------------------------------
Notary Public
State of New York)
County of Monroe) ss:
On this 16th day of June, 1999, before me personally came ANGELO J.
CHIARELLA, to me known and known to me to be the individual described in, and
who executed the foregoing instrument, and he acknowledged to me that he
executed the same.
/s/ Susan Mascette Brandt
-----------------------------------------
Notary Public
-3-
<PAGE> 4
State of New York)
County of Monroe) ss.
On this 16th day of June, 1999, before me personally came E. LEE GARELICK,
to me known and known to me to be the individual described in, and who executed
the foregoing instrument, and he acknowledged to me that he executed the same.
/s/ Susan Mascette Brandt
-----------------------------------------
Notary Public
State of New York)
County of Monroe) ss:
On this 16th day of June, 1999, before me personally came NANCY D. HESSLER,
to me known and known to me to be the individual described in, and who executed
the foregoing instrument, and she acknowledged to me that she executed the same.
/s/ Susan Mascette Brandt
-----------------------------------------
Notary Public
State of New York)
County of Monroe) ss:
On this 16th day of June, 1999, before me personally came CORNELIUS J.
MURPHY, to me known and known to me to be the individual described in, and who
executed the foregoing instrument, and he acknowledged to me that he executed
the same.
/s/ Susan Mascette Brandt
-----------------------------------------
Notary Public
State of New York)
County of Monroe) ss:
On this 16th day of June, 1999, before me personally came JOHN W. OBERLIES,
to me known and known to me to be the individual described in, and who executed
the foregoing instrument, and he acknowledged to me that he executed the same.
/s/ Susan Mascette Brandt
-----------------------------------------
Notary Public
-4-
<PAGE> 5
State of New York)
County of Monroe) ss:
On this 16th day of June, 1999, before me personally came HARVEY J. PALMER,
to me known and known to me to be the individual described in, and who executed
the foregoing instrument, and he acknowledged to me that he executed the same.
/s/ Susan Mascette Brandt
-----------------------------------------
Notary Public
State of New York)
County of Monroe) ss:
On this 16th day of June, 1999, before me personally came ARTHUR M.
RICHARDSON, to me known and known to me to be the individual described in, and
who executed the foregoing instrument, and he acknowledged to me that he
executed the same.
/s/ Susan Mascette Brandt
-----------------------------------------
Notary Public
-5-
