forms8-021805
As filed with the Securities and Exchange Commission on February 18, 2005
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MESA LABORATORIES, INC.
(Exact name of Registrant as specified in its charter)
Colorado 84-0872291
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
12100 West Sixth Avenue
Lakewood, Colorado 80228
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(Address of principal executive offices) (zip code)
Mesa Laboratories, Inc.
The Amended 1999 Stock Compensation Plan
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(Full title of the plan)
Andrew N. Bernstein, Esq.
Andrew N. Bernstein, P.C.
5445 DTC Parkway, Suite 520
Greenwood Village, Colorado 80111
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(Name and address of agent for service)
(303) 770-7131
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(Telephone number, including area code, of agent for service)
Approximate date of commencement of proposed sale pursuant to the plan:
From time to time after the Registration Statement becomes effective.
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Exhibit Index Begins at Page 15
CALCULATION OF REGISTRATION FEE
Title of.Amount to be Proposed Proposed Amount of
securities to be registered (1) maximum maximum registration
registered offering aggregate fee
price per offering
share price
Common Stock,
no par value 200,000 shares(2) (3) $2,510,113(3) $295.45
(1) Pursuant to Rule 416, this Registration Statement covers any additional
shares of Common Stock ("shares") which become issuable under the Plan set
forth herein by reason of any stock dividend, stock split, recapitalization
or any other similar transaction without receipt of consideration which
results in an increase in the number of shares outstanding.
(2) This Registration Statement covers the registration of 200,000 additional
shares issuable under the Plan. A registration statement on Form S-8, File
Number 333-48556, covering the issuance and sale of 300,000 shares from
time to time upon exercise of stock options pursuant to the Plan, was filed
with the Commission under the Securities Act of 1933, as amended, and
became effective on October 25, 2000.
(3) Pursuant to Rules 457(h) and 457(c), the offering price per share, the
aggregate offering price and the amount of the filing fee were computed
upon the bases of:
o the price at which 11,250 outstanding options may be exercised
(resulting in an aggregate offering price of $141,300); and
o the closing price of the Common Stock within five business days prior to
the date of filing of the Registration Statement, with respect to the
authorized but unissued remaining options (188,750 shares at $12.55 per
share, aggregating $2,368,813).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the requirements of the Note to Part I of Form S-8 and Rule
428(b)(1) of the Rules under the Securities Act of 1933, as amended, the
information required by Part I of Form S-8 is incorporated by reference in the
Reoffer Prospectus which follows. The Reoffer Prospectus, together with the
documents incorporated by reference pursuant to Item 3 of Part II of this
Registration Statement, constitutes the Section 10(a) Prospectus.
REOFFER PROSPECTUS
The material which follows, up to but not including the pages beginning
Part II of this Registration Statement, constitutes a prospectus prepared in
accordance with the applicable requirements of Part I of Form S-3 and General
Instruction C to Form S-8, to be used in connection with resales of securities
acquired under the Registrant's Amended 1999 Stock Compensation Plan by
affiliates of the Registrant, as defined in Rule 405 under the Securities Act of
1933, as amended.
REOFFER PROSPECTUS
500,000 SHARES
COMMON STOCK
MESA LABORATORIES, INC.
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THE AMENDED 1999 STOCK COMPENSATION PLAN
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We are registering on behalf of our employees, officers, directors and
advisors up to 500,000 shares of our common stock purchasable by them pursuant
to common stock options under our Amended 1999 Stock Compensation Plan. As of
this date, 311,250 options have been issued under the Plan, of which 200,867
options are currently outstanding and 110,383 options have been exercised, and
188,750 options remain available for grant.
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This prospectus will be used by persons who are our "affiliates" to resell
shares purchased by them under the Plan. We will receive no part of the proceeds
of any such sales, although we will receive the exercise price for the stock
options.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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No person is authorized to give any information or to make any
representation regarding the securities we are offering and investors should not
rely on any such information. The information provided in the prospectus is as
of this date only.
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The date of this prospectus is February 18, 2005.
AVAILABLE INFORMATION
We are a fully reporting company subject to the informational requirements
of the Securities Exchange Act of 1934, as amended, and we file reports and
other information with the Securities and Exchange Commission. Reports and other
information which we file can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549; 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511;
and 7 World Trade Center, New York, New York 10048. Copies of such material can
be obtained from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates.
Our common stock is traded on the Nasdaq National Market under the symbol
"MLAB."
We furnish annual reports to our shareholders which include audited
financial statements. We may furnish such other reports as may be authorized,
from time to time, by our board of directors.
INCORPORATION BY REFERENCE
Certain documents have been incorporated by reference into this prospectus,
either in whole or in part. We will provide without charge to each person to
whom a prospectus is delivered, upon written or oral request, (i) a copy of the
information that has been incorporated by reference (not including exhibits to
the information unless such exhibits are specifically incorporated by reference
into the information), and (ii) a copy of all documents and information required
to be delivered to our employees pursuant to Rule 428(b). Requests for such
information shall be addressed to us at Mesa Laboratories, Inc., 12100 West
Sixth Avenue, Lakewood, Colorado 80228, telephone: (303) 987-8000.
TABLE OF CONTENTS
Introduction
Selling Stockholders
Method of Sale
SEC Position Regarding Indemnification
Description of the Plan
Applicable Securities Law Restrictions
Tax Consequences
Legal Matters
Experts
INTRODUCTION
We design, develop, acquire, manufacture and market instruments and systems
utilized in connection with industrial applications and hemodialysis therapy. In
August 1984, we acquired Western Laboratories Corp., a manufacturer and marketer
of a line of instruments for use in calibrating hemodialysis proportioning
equipment. In June 1989, we acquired the DATATRACE(R)product line of Ball
Corporation. In February 1993, we acquired the assets of NUSONICS, Inc., a
manufacturer of ultrasonic flow meters and analyzers. In December 1999, we
acquired Automata Instrumentation, Inc., a manufacturer and marketer of a line
of instruments for use in calibrating and verifying performance of hemodialysis
and proportioning equipment.
We presently market the DATATRACE(R)and ELOGG(R)recording systems which are
used in various industrial applications; NUSONICS(R) Concentration Analyzers,
Pipeline Interface Detectors and Flow Meter products which are used in various
industrial applications; and two product lines used in kidney dialysis
[Dialysate Meters and the ECHO Reprocessing Products]. We are also performing
research and development to expand the application of our technology.
Our executive offices are located at 12100 West Sixth Avenue, Lakewood,
Colorado 80228, telephone (303) 987-8000.
SELLING STOCKHOLDERS
This prospectus covers possible sales by our executive officers, directors,
advisors and employees of shares they acquire through exercise of options
granted under our Amended 1999 Stock Compensation Plan. The names of our
affiliates who may be Selling Stockholders from time to time are listed below,
along with the number of shares of common stock to be offered for sale. The
names of other affiliates who may offer shares for resale in the future, along
with the number of shares which may be sold by each affiliate from time to time,
will be updated in supplements to this prospectus, which will be filed with the
Commission in accordance with Rule 424(b) under the Securities Act. All Selling
Stockholders are executive officers and/or directors. The address of each
Selling Stockholder is the same as our address. All shares listed below for sale
represent shares issuable upon exercise of options granted under the Plan.
Maximum Number of Shares Which May
Name of Selling Stockholder Be Sold Upon Exercise of Options
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Luke R. Schmieder 14,000
Steven W. Peterson 8,000
Paul D. Duke 18,000
H. Stuart Campbell 3,000
Michael T. Brooks 4,000
John L. Sullivan 20,000
METHOD OF SALE
Sales of the shares offered by this prospectus will be made on The Nasdaq
National Market, where our common stock is listed for trading, in other markets
where our common stock may be traded, or in negotiated transactions. Sales will
generally involve payment of customary brokers' commissions by the Selling
Stockholders. There is no present plan of distribution.
SEC POSITION REGARDING INDEMNIFICATION
Our Articles of Incorporation provide for indemnification of officers and
directors, among other things, in instances in which they acted in good faith
and in a manner they reasonably believed to be in, or not opposed to, our best
interests and in which, with respect to criminal proceedings, they had no
reasonable cause to believe their conduct was unlawful.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers or persons controlling us under the
provisions described above, we have been informed that, in the opinion of the
Commission, indemnification is against public policy as expressed in that Act
and is therefore unenforceable.
DESCRIPTION OF THE AMENDED PLAN
Our board of directors and our shareholders have adopted and approved the
amended Plan. Options granted pursuant to the Plan constitute either incentive
stock options within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended, or options which constitute nonqualified options at the time
of issuance of such options. The Plan provides that incentive stock options
and/or nonqualified stock options may be granted to our officers, directors,
employees and advisors selected by our Compensation Committee. A total of
500,000 shares of common stock are authorized and reserved for issuance under
the Plan, subject to adjustment to reflect changes in our capitalization in the
case of a stock split, stock dividend or similar event.
The Plan is administered by our Compensation Committee which has the sole
authority to interpret the Plan and to make all determinations necessary or
advisable for administering the Plan, including but not limited to:
o who shall be granted options under the Plan;
o the term of each option;
o the number of shares covered by such option;
o whether the option shall constitute an incentive option or a
nonqualified option;
o the exercise price for the purchase of the shares covered by the
option, provided that the exercise price for any option
must be at least equal to the fair market value of the shares
as of the date of grant of such option;
o the period during which the option may be exercised;
o whether the right to purchase the number of shares covered by
the option shall be fully vested on issuance of the option so
that such shares may be purchased in full at one time or whether
the right to purchase such shares shall become vested over
a period of time so that such shares may only be purchased in
installments; and
o the time or times at which the options shall be granted.
Except in the case of disability or death, no option shall be exercisable
after an optionee who is an employee ceases to be employed by the Company;
provided, however, the Compensation Committee has the right to extend the
exercise period following the date of termination of such optionee's employment.
If an optionee's employment is terminated by reason of death or disability, the
Compensation Committee may extend the option term following the date of
termination of the optionee's employment. Upon the exercise of the option, the
exercise price must be paid in full either in cash, shares of our common stock
or a combination.
If any option to purchase reserved shares shall not be exercised for any
reason or if such option to purchase shall terminate as provided by the Plan,
such shares which have not been so purchased shall again become available for
the purposes of the Plan unless the Plan shall have been terminated.
The provisions of the Federal Employee Retirement Income Security Act of
1974 do not apply to the Plan. Shares issuable upon exercise of options will not
be purchased in open market transactions but will be issued by us from
authorized shares. Shares issuable under the Plan may be sold in the open
market, without restrictions, as free trading securities. There are no assets
administered under the Plan and, accordingly, no investment information is
furnished.
No options may be assigned, transferred, hypothecated or pledged by the
option holder except by will, the laws of intestate succession or as permitted
by the Commission. No person may create a lien on any securities under the Plan,
except by operation of law. However, there are no restrictions on the resale of
the shares underlying the options.
The Plan will remain in effect until August 5, 2009. Additional information
concerning the Plan may be obtained from us at our address and telephone number.
APPLICABLE SECURITIES LAW RESTRICTIONS
If the optionee is deemed to be an "affiliate" (as that term is defined
under the Securities Act), the resale of the shares purchased upon exercise of
options covered hereby may be subject to certain restrictions and requirements,
including compliance with the provisions of Rule 144 promulgated under the
Securities Act.
In addition to the requirements imposed by the Securities Act, the
antifraud provisions of the Exchange Act and the rules thereunder (including
Rule 10b-5) are applicable to any sale of shares acquired pursuant to the Plan.
Up to 500,000 shares may be issued under the Plan. We have authorized
8,000,000 shares of common stock, of which 3,072,815 shares were outstanding as
of March 31, 2004. Shares of common stock outstanding are, and those to be
issued upon exercise of options will be, fully paid and nonassessable, and each
share of common stock is entitled to one vote at all shareholders' meetings. All
shares are equal to each other with respect to lien rights, liquidation rights
and dividend rights. There are no preemptive rights to purchase additional
shares by virtue of the fact that a person is one of our shareholders.
Shareholders do not have the right to cumulate their votes for the election of
directors.
Our officers and directors and owners of at least ten percent of our stock
must comply with certain reporting requirements and resale restrictions pursuant
to Sections 16(a) and 16(b) of the Exchange Act and the rules thereunder upon
the receipt or disposition of any options.
TAX CONSEQUENCES
We have been advised that the federal income tax consequences of the Plan
to us and the optionees, and possible exercise of options granted under the
Plan, will depend upon future circumstances and possible changes in the tax
laws. The following summary discussion addresses certain federal income tax
consequences of the Plan. This discussion does not address all of the tax
consequences that may be applicable to any particular optionee or to us. In
addition, this discussion does not address foreign, state, or local taxes, nor
does it address federal taxes other than federal income tax. This discussion is
based upon applicable statutes, regulations, case law, administrative
interpretations and judicial decisions in effect as of the date of this
prospectus.
The income tax treatment of nonstatutory options is governed byss.83 of the
Code. This section basically provides that if an option has a readily
ascertainable fair market value when granted, then the optionee must recognize
ordinary income at the time of grant but not at the time of exercise or
disposal; if an option does not have a readily ascertainable fair market value
when granted, the optionee must recognize ordinary income at the time of its
exercise or disposal of the option but not at the time of its grant. We will
receive a corresponding compensation deduction for the amount included by the
optionee as income in the same year that the optionee includes such amount as
income. Consequently, whether a nonstatutory option has a readily ascertainable
fair market value at grant will determine whether the grant or the exercise of
the nonstatutory option is the taxable event for the optionee who rendered the
services for which the option was granted.
No tax consequences result from the granting of an incentive stock option
or from the exercise of an incentive stock option by the employee. In addition,
the employer generally will not be allowed a business expense deduction with
respect to an incentive stock option unless the employee disposes of the stock
prior to the required holding period. The employee will be taxed at capital gain
rates when he sells stock acquired under an incentive stock option plan,
provided he has not disposed of the stock for at least two years from the date
the option was granted to him and he has held the stock itself at least one year
after the stock was transferred to him. If the foregoing holding period rules
are not satisfied, the gain that would have been realized at the time the option
was exercised is included as ordinary income in the year of the disqualifying
sale. For this purpose, the gain is equal to the lesser of (i) the fair market
value of the stock on the date of exercise over the option price of the stock,
or (ii) the amount realized on disposition over the adjusted basis of the stock.
The employer is allowed to deduct a corresponding amount as a business deduction
at the same time the employee is required to recognize the ordinary income
arising from the early disposition.
Notwithstanding the preceding, when calculating income for alternative
minimum tax purposes, the favorable tax treatment of ss.421(a) is disregarded
and the bargain purchase element (that is, the spread between the option price
and the fair market value of the option stock at exercise) of the incentive
stock option will be considered as part of the taxpayer's alternative minimum
taxable income.
LEGAL MATTERS
The validity of the shares offered hereby have been passed on for us by
Andrew N. Bernstein, P.C., 5445 DTC Parkway, Suite 520, Greenwood Village,
Colorado 80111.
EXPERTS
Our balance sheets for the years ended March 31, 2004 and 2003 and our
statements of income, stockholders' equity and cash flows for the years then
ended, incorporated by reference to our Annual Report on Form 10-KSB for the
fiscal year ended March 31, 2004, have been audited by Ehrhardt Keefe Steiner &
Hottman PC, Denver, Colorado, as set forth in their report included therein and
incorporated by reference. Our financial statements referred to above are
incorporated by reference in reliance upon such report and upon the authority of
such firm as an expert in auditing and accounting.
Our future financial statements and reports thereon of Ehrhardt Keefe
Steiner & Hottman PC also will be incorporated by reference in this prospectus
in reliance upon the authority of that firm as experts in giving those reports
to the extent said firm has audited those financial statements and consented to
the use of their reports thereon.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant hereby incorporates by reference in this Registration
Statement the following documents previously filed with the Commission:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended March 31, 2004 (including its audited financial statements for
the years ended March 31, 2004 and 2003, together with the report of
independent public accountants) filed pursuant to the Exchange Act;
(b) The Registrant's Quarterly Reports on Form 10-QSB for the fiscal
quarters ended June 30, 2004; September 30, 2004; and December 31,
2004;
(c) The Registrant's definitive Proxy Statement for the Annual Meeting of
Shareholders of the Company held October 18, 2004;
(d) The description of the common stock that is contained in the
Registrant's Registration Statement on Form 8-A under the Exchange Act
(File No. 0-11740);
(e) The Registrant's Current Reports on Form 8-K dated August 10, 2004;
November 2, 2004; and February 2, 2005; and
(f) All subsequent reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act.
All reports and definitive proxy or information statements filed by the
Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of 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 hereby have
been sold or which deregisters all securities then remaining unsold at the time
of such amendment will be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement 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 Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
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 Registration
Statement.
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 109 of the Colorado Business Corporation Act ("CBCA") provides
broad authority for indemnification of directors and officers. The Articles of
Incorporation and Bylaws of Mesa Laboratories, Inc. (the "Registrant") provide
for indemnification of its officers and directors to the fullest extent
permitted by the CBCA. As permitted by Section 7-108-402 of the CBCA, the
Registrant's Articles of Incorporation provide that a director shall not be
liable for monetary damages for breach of his fiduciary duty as a director
except in certain limited circumstances.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following documents are filed as exhibits to this Registration Statement.
Exhibit
Number Description of Exhibit
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4.1 -- The Amended 1999 Stock Compensation Plan of Mesa
Laboratories, Inc.
5.1 -- Opinion of Andrew N. Bernstein, P.C.
23.1 -- Consent of Ehrhardt Keefe Steiner & Hottman PC,
independent public accountants
23.2 -- Consent of Andrew N. Bernstein, P.C. (included
in its opinion filed as Exhibit 5.1)
Item 9. Undertakings
(a) Rule 415 Offerings.
The undersigned registrant hereby undertakes that it will:
(1) File, during any period in which it offers or sells
securities, a post-effective amendment to this Registration
Statement to:
(i) Include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement; and
(iii)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;
(2) For the purpose of determining any liability under the
Securities Act of 1933, treat each such post-effective
amendment as a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time to be the initial bona fide offering
thereof; and
(3) 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) Filings Incorporating Subsequent Exchange Act documents by
reference.
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) Request for acceleration of effective date or filing of
registration statement on Form S-8.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (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 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.
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 or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in Lakewood, Colorado on February 17, 2005.
MESA LABORATORIES, INC.
By: /s/ LUKE R. SCHMIEDER
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Luke R. Schmieder
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ LUKE R. SCHMIEDER President, Chief Executive Officer, 2/17/05
------------------------- Treasurer and Director (Principal
Luke R. Schmieder Executive Officer)
/s/ STEVEN W. PETERSON Vice President, Finance, Chief 2/17/05
----------------------- Financial and Chief Accounting
Steven W. Peterson Officer and Secretary (Principal
Financial and Accounting Officer
/s/ PAUL D. DUKE Director 2/17/05
--------------------------------
Paul D. Duke
/s/ H. STUART CAMPBELL Director 2/17/05
-----------------------
H. Stuart Campbell
/s/ MICHAEL T. BROOKS Director 2/17/05
------------------------
Michael T. Brooks
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
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4.1 The Amended 1999 Stock Compensation Plan of
Mesa Laboratories, Inc.
5.1 Opinion of Andrew N. Bernstein, P.C.
23.1 Consent of Ehrhardt Keefe Steiner & Hottman PC, independent
public accountants
23.2 Consent of Andrew N. Bernstein, P.C. (included in its
opinion filed as Exhibit 5.1) x