1
As filed with Securities and Exchange Commission on September 20, 1996
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEMATRON CORPORATION
(Exact name of registrant as specified in its charter)
MICHIGAN 38-2483796
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5840 INTERFACE DRIVE
ANN ARBOR, MICHIGAN 48103
(Address of principal executive offices)
NEMATRON CORPORATION 401(K) PLAN AND TRUST
(Full title of the plan)
David P. Gienapp
Vice President, Chief Financial Officer,
Treasurer and Secretary
Nematron Corporation
5840 Interface Drive
Ann Arbor, Michigan 48103
(313) 994-0591
(Name, address and telephone number,
including area code, of agent for service)
Copies to:
Aleksandra A. Miziolek, Esq.
Dykema Gossett PLLC
400 Renaissance Center
Detroit, Michigan 48243-1668
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
Title of Proposed Maximum Proposed Maximum Amount of
Securities to Amount to be Offering Aggregate Registration
be Registered Registered* Price Per Share** Offering Price** Fee
- -------------------------------------------------------------------------------
Common Stock 200,000 shares $8.625 $1,725,000 $595.00
- -------------------------------------------------------------------------------
* Pursuant to Rule 416 under the Securities Act of 1933, this registration
statement also covers an indeterminate amount of interests to be offered
or sold pursuant to the employee benefit plan described herein.
** Estimated solely for the purpose of calculating the registration fee,
based on the average of the high and low sale prices of the Common
Stock on the Nasdaq National Market on September 18, 1996, in accordance
with Rule 457(h).
================================================================================
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Nematron Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(a) The description of Common Stock contained in the
Registration Statement on Form 10, No. 0-21142, filed
under the Exchange Act.
(b) Annual Report on Form 10-KSB for the year ended
September 30, 1995, as amended by Form 10-KSB/A filed
February 2, 1996 and Form 10-KSB/A2 filed May 20, 1996.
(c) Quarterly Reports on Form 10-QSB for the quarters ended
December 31, 1995, March 31, 1996 and June 30,
1996.
All documents filed by the Company and the Company's 401(K) Plan
and Trust (the "Plan") with the Commission pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to
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 each such document.
Item 4. DESCRIPTION OF SECURITIES
The Common Stock to be offered is registered under Section 12 of
the Securities Exchange Act.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 561 through 571 of the Michigan Business Corporation
Act (the "MBCA") govern the indemnification of officers, directors and other
persons. In this regard, the MBCA provides for indemnification of directors
and officers acting in good faith and in a manner they reasonably believe to be
in, or not opposed to, the best interest of the corporation or its shareholders
(and, with respect to a criminal proceeding, if they have no reasonable cause
to believe their conduct to be unlawful). Such indemnification may be made
against (a) expenses (including attorneys' fees), judgments, penalties, fines
and amounts paid in settlement, which were
II-1
3
actually and reasonably incurred in connection with any threatened, pending or
completed action, suit or proceeding (other than an action by, or in the right
of, the corporation) arising out of a position with the corporation (or with
some other entity at the corporation's request), and (b) expenses (including
attorneys' fees) and amounts paid in settlement actually and reasonably
incurred in connection with a threatened, pending or completed action or suit
by, or in the right of, the corporation, unless the director or officer is
found liable to the corporation and an appropriate court does not determine
that he or she is nevertheless fairly and reasonably entitled to
indemnification. The MBCA requires indemnification for expenses to the extent
that a director or officer is successful in defending against any such action,
suit or proceeding, and otherwise requires in general that the indemnification
provided for in (a) and (b) above be made only on a determination by a majority
vote of a quorum of the board of directors comprised of members who were not
parties to or threatened to be made parties to such action. In certain
circumstances, the MBCA further permits advances to cover such expenses before
a final determination that indemnification is permissible, upon receipt of (i)
a written affirmation by the director or officer of his good faith belief that
he has met the applicable standard of conduct set forth in the MBCA, and (ii) a
written undertaking by or on behalf of the director or officer to repay such
amounts unless it shall ultimately be determined that he is entitled to
indemnification and a determination that the facts then known to those making
the advance would not preclude indemnification. The Company's Articles of
Incorporation provide the same indemnification rights as the MBCA.
Subject to the exceptions recited in the following sentence, the
Company's Articles of Incorporation provide that no director shall be
personally liable to the Company or its shareholders for damages for breach of
his or her duty as a director. Such exculpatory language does not, however,
eliminate or limit the liability of a director for (a) breach of the duty of
loyalty, (b) acts or omissions that are not in good faith or involve
intentional misconduct or a knowing violation of law, (c) certain other
violations of the Michigan Business Corporation Act, or (d) responsibility of
any transaction from which the director has derived an improper personal
benefit.
The MBCA permits the Company to purchase insurance on behalf of
its directors and officers against liabilities arising out of their positions
with the Company, whether or not such liabilities would be within the
indemnification provisions of the MCBA. Under an insurance policy maintained
by the Company, the directors and officers of the Company are insured, within
the limits and subject to the limitations of the policy, against certain
expenses in connection with the defense of certain claims, actions, suits or
proceedings, and certain liabilities which might be imposed as a result of such
claims, actions, suits or proceedings, which may be brought against them by
reason of being or having served as directors and officers of the Company or
certain other entities.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to officers and directors pursuant to the
foregoing provisions, the Company has been informed that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
II-2
4
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
The following exhibits are filed with this Registration
Statement:
5 Determination letter of Internal Revenue Service with
respect to the acceptability of the form of the Plan
under the Internal Revenue Code.
23.1 Consent of KPMG Peat Marwick LLP, independent
accountants.
23.2 Consent of Deloitte and Touche LLP, independent
accountants.
24 Power of Attorney (contained on signature page).
99.1 Amended Adoption Agreement to 401(k) Plan and Trust,
effective as of October 1, 1996.
Item 9. UNDERTAKINGS
(1) The undersigned registrant hereby undertakes (a) 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, (b) 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, and
(c) 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.
(2) 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 each filing of the 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.
II-3
5
(3) 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.
II-4
6
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 Ann Arbor, State of Michigan on September 19,
1996.
NEMATRON CORPORATION
By: /s/ David P. Gienapp
-----------------------------
David P. Gienapp
Vice President,
Chief Financial Officer,
Treasurer and Secretary
Each person whose signature appears below constitutes and
appoints Frank G. Logan, III and David P. Gienapp, his attorneys-in-fact, each
with power of substitution for him in any and all capacities, to sign any
amendments to this Registration Statement (including post-effective amendments)
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 such attorney-in-fact or his or her substitute 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 below by the following persons in the
indicated capacities as of September 19, 1996.
Signature Title
--------- -----
/s/ Frank G. Logan, III Chairman, President,
- --------------------------- Chief Executive Officer and a
Frank G. Logan, III Director
(Principal Executive Officer)
/s/ David P. Gienapp Vice President,
- --------------------------- Chief Financial Officer,
David P. Gienapp Treasurer, Secretary and
a Director
(Principal Financial and Accounting Officer)
/s/ Gregory J. Chandler Vice President and
- -------------------------- a Director
Gregory J. Chandler
II-5
7
/s/ Hugo E. Braun Director
- ---------------------------
Hugo E. Braun
/s/ Garnel F. Graber Director
- ---------------------------
Garnel F. Graber
/s/ Michael L. Hershey Director
- ---------------------------
Michael L. Hershey
/s/ Harry A. Sundblad Director
- ---------------------------
Harry A. Sundblad
Pursuant to the requirements of the Securities Act of 1933, the
Plan Administrator has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Ann
Arbor, State of Michigan, on September 19, 1996.
NEMATRON CORPORATION 401(K) PLAN AND
TRUST
By: David P. Gienapp
Its: Plan Administrator
/s/ David P. Gienapp
----------------------------------------
II-6
8
INDEX TO EXHIBITS
Number Description
- ------ ----------------------------------------------------------------------
5 Determination letter of Internal Revenue Service with respect to the
acceptability of the form of the Plan under the Internal
Revenue Code.
23.1 Consent of KPMG Peat Marwick LLP, independent accountants.
23.2 Consent of Deloitte and Touche LLP, independent accountants.
24 Power of Attorney (contained on signature page).
99.1 Amended Adoption Agreement to 401(k) Plan and Trust, effective as of
October 1, 1996.