-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IseFrcPhfAqElqTTyRpgZ+jKlf4VWD7EGpcLlYq69kTVlqXA2OvJZHT2vJfPc19P lTbceLnde0Tmx9Oxd+rO+Q== 0001012870-99-000998.txt : 19990405 0001012870-99-000998.hdr.sgml : 19990405 ACCESSION NUMBER: 0001012870-99-000998 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990401 EFFECTIVENESS DATE: 19990401 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VARIAN INC CENTRAL INDEX KEY: 0001079028 STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY ANALYTICAL INSTRUMENTS [3826] IRS NUMBER: 770501995 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-75527 FILM NUMBER: 99586340 BUSINESS ADDRESS: STREET 1: 3050 HANSEN WAY CITY: PALO ALTO STATE: CA ZIP: 94304-1000 BUSINESS PHONE: 6504245352 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on April 1, 1999 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- VARIAN, INC. (Exact Name of Registrant as Specified in Its Charter) ---------------- Delaware 77-0501995 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 3050 Hansen Way Palo Alto, CA 94304 (Address of Principal Executive Offices) ---------------- Varian, Inc. Omnibus Stock Plan (Full Title of the Plan) ---------------- Arthur W. Homan Secretary Varian, Inc. 3050 Hansen Way Palo Alto, CA 94304 (Name and Address of Agent For Service) (650) 493-4000 (Telephone Number, Including Area Code, of Agent For Service) Copies to: Leslie P. Jay, Esq. Geoffrey P. Leonard, Esq. Orrick, Herrington & Sutcliffe LLP Old Federal Reserve Bank Building 400 Sansome Street San Francisco, California 94111-3143 (415) 392-1122 CALCULATION OF REGISTRATION FEE
========================================================================================================================== Amount Proposed Proposed Amount of To Be Maximum Offering Maximum Aggregate Registration Title of Securities to be Registered Registered Price Per Share (1) Offering Price (1) Fee - -------------------------------------------------------------------------------------------------------------------------- Common Stock, (2) par value $.01 per share....... 10,000,000 shares $8.875 $88,750,000 $24,672.50 ==========================================================================================================================
(1) Pursuant to Rule 457(h)(1), the proposed maximum offering price per share and the proposed maximum aggregate offering price have been calculated on the basis of $8.875 per share, the average of the high and low price of the Common Stock on the Nasdaq National Market on March 29, 1999. (2) Includes Preferred Stock Purchase Rights which, prior to the occurrence of certain events, will not be exercisable or evidenced separately from the Common Stock. ================================================================================ PART I Item 1. Plan Information * Item 2. Registrant Information and Employee Plan Annual Information * * Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933 (the "Securities Act") and the Note to Part I of Form S-8. PART II Item 3. Incorporation of Certain Documents by Reference The Registration Statement on Form 10, as amended, previously filed by Varian, Inc. ("Registrant") with the Securities and Exchange Commission ("Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") is incorporated by reference to this Registration Statement (including the description of the Registrant's common stock and amendments and reports filed to update that description). All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, 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 Inapplicable. Item 5. Interests of Named Experts and Counsel Inapplicable. Item 6. Indemnification of Directors and Officers Section 145 of the General Corporation Law of the State of Delaware (the "Delaware Law") authorizes a Delaware corporation to indemnify officers, directors, employees and agents of the corporation, in connection with actual or threatened actions, suits or proceedings provided that such officer, director, employee or agent acted in good faith and in a manner such officer reasonably believed to be in or not opposed to the corporation's best interests, and, for criminal proceedings, had no reasonable cause to believe his or her conduct was unlawful. This authority is sufficiently broad to permit indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act. The Registrant's Restated Certificate of Incorporation and By-laws provide for indemnification of officers and directors to the fullest extent permitted by Delaware Law. In addition, the Registrant has, and intends in the future to enter into, agreements to provide indemnification for directors and officers in addition to that contained in the Restated Certificate of Incorporation and By- laws. Item 7. Exemption From Registration Claimed Inapplicable. 2 Item 8. Exhibits Exhibit Number Name ------ ---- 5.1 Opinion of Orrick, Herrington & Sutcliffe LLP. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in Exhibit 5.1 to this Registration Statement. 24.1 Powers of Attorney. 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: (i) to include any prospectus required by Section 10(a)(3) of the Securities 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 Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set for the in the "Calculation of Registration Fee" table in the effective Registration Statement; (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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the 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 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 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 3 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 Securities Act and will be governed by the final adjudication of such issue. 4 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 Palo Alto, State of California on the 1st of April, 1999. VARIAN, INC. (Registrant) /s/ Arthur W. Homan By: _____________________________ Arthur W. Homan Secretary 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.
Signature Title Date --------- ----- ---- * Allen J. Lauer Director, President and April 1, 1999 Chief Executive Officer /s/ Franco N. Palomba Treasurer April 1, 1999 - ----------------------------------- (Principal Financial Officer and Franco N. Palomba Principal Accounting Officer) * John G. McDonald Director April 1, 1999 * Wayne R. Moon Director April 1, 1999 * D. E. Mundell Director April 1, 1999 * Elizabeth E. Tallett Director April 1, 1999 * By /s/ Arthur W. Homan -------------------- Arthur W. Homan Attorney-in-fact
5 EXHIBIT INDEX
Exhibit Page Number Name Number ------ ---- ------ 5.1 Opinion of Orrick, Herrington & Sutcliffe LLP. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in Exhibit 5.1 to this Registration Statement. 24.1 Powers of Attorney.
6 EX-5.1 2 OPINION OF ORRICK, HERRINGTON & SUTCLIFFE LLP EXHIBIT 5.1 April 1, 1999 Varian, Inc. 3050 Hansen Way Palo Alto, California 94304 Re: Registration Statement on Form S-8 Varian, Inc. ------------------------------------------------ Omnibus Stock Plan ------------------ Ladies and Gentlemen: At your request, we are rendering this opinion in connection with the proposed issuance pursuant to the Varian, Inc. Omnibus Stock Plan (the "Plan"), of up to 4,200,000 shares of common stock, $.01 par value ("Common Stock"), of Varian, Inc., a Delaware corporation (the "Company") and such additional shares as may be subject to substitute stock options as provided in the Plan, not to exceed 5,800,000 Shares of Common Stock (the "Shares"). We have examined instruments, documents, and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the following: (a) the authenticity of original documents and the genuineness of all signatures; (b) the conformity to the originals of all documents submitted to us as copies; and (c) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed. Based on such examination, we are of the opinion that the Shares to be issued by the Company pursuant to the Plan are validly authorized shares of Common Stock, and, when issued in accordance with the provisions of the Plan, will be legally issued, fully paid, and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the above referenced Registration Statement on Form S-8 and to the use of our name wherever it appears in said Registration Statement. In giving such consent, we do not consider that we are "experts" within the meaning of such term as used in the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission issued thereunder with respect to any part of the Registration Statement, including this opinion, as an exhibit or otherwise. Very truly yours, /s/ Orrick, Herrington & Sutcliffe LLP EX-23.1 3 CONSENT OF PRICEWATERHOUSECOOPERS LLP. EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the Varian, Inc. Omnibus Stock Plan of our reports dated October 31, 1998, on our audits of the combined financial statements and financial statement schedule of the Instruments Business of Varian Associates, Inc. /s/ PRICEWATERHOUSECOOPERS LLP - ------------------------------ PricewaterhouseCoopers LLP San Jose, California March 31, 1999 EX-24.1 4 POWERS OF ATTORNEY EXHIBIT 24.1 CONSENT AND POWER OF ATTORNEY KNOW BY ALL PERSONS BY THESE PRESENTS: Each of the undersigned directors of Varian, Inc., a Delaware corporation (the "Company"), hereby constitutes and appoints Allen J. Lauer and Arthur W. Homan and each of them, his or her true and lawful attorneys-in-fact, with full power of substitution, for him or her and in his or her name, place and stead, in his or her capacity as a director, to execute a Registration Statement or Registration Statements on Form S-8 under the Securities Act of 1933, as amended, relating to 4,200,000 shares of Common Stock and up to 5,800,000 additional shares of Common Stock that are subject to substitute stock options (collectively, the "Shares") that are issuable under the Varian, Inc. Omnibus Stock Plan (the "Plan") and any and all amendments (including post-effective amendments) to such Registration Statements, and to file such Registration Statements and any and all amendments thereto, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact full power and authority to do and perform each and every act and thing necessary or desirable to be done in and about the premises, as fully to all intents and purposes, as he or she might or could do in person, and ratify and confirm all that such attorneys-in-fact or their substitutes may lawfully do or cause to be done by virtue hereof, and hereby consents to such registration of the Shares and the issuance thereof pursuant to the terms of the Plan. IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of March, 1999. /s/ Allen J. Lauer /s/ John G. McDonald - ------------------------------ ----------------------------------- Allen J. Lauer John G. McDonald /s/ Wayne R. Moon /s/ D.E. Mundell - ------------------------------ ----------------------------------- Wayne R. Moon D.E. Mundell /s/ Elizabeth E. Tallett - ------------------------------ Elizabeth E. Tallett -----END PRIVACY-ENHANCED MESSAGE-----