As filed with the Securities and Exchange Commission on September 3, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ITRON, INC.
(Exact name of Registrant as specified in its charter)
Washington 91-1011792
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2818 N. Sullivan Road
Spokane, Washington 99216-1897
(Address of principal executive offices, including zip code)
NONQUALIFIED STOCK OPTION LETTER AGREEMENT
(Full title of the plan)
DAVID G. REMINGTON
Vice President and Chief Financial Officer
Itron, Inc.
2818 N. Sullivan Road
Spokane, Washington 99216-1897
(509) 924-9900
(Name, address and telephone number, including area code, of agent for service)
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Copy to:
LINDA A. SCHOEMAKER
Perkins Coie LLP
1201 Third Avenue, 40th Floor
Seattle, Washington 98101-3099
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CALCULATION OF REGISTRATION FEE
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Title of Securities Number to be Proposed Maximum Proposed Maximum Amount of
to Be Registered Registered(1) Offering Price Aggregate Registration
Per Share Offering Price Fee
- ------------------- ------------ ----------------- ---------------- ------------
Common Stock, no
par value, under the 158,975 $7.3125(2) $1,162,504.60(2) $323.18
Nonqualified Stock
Option Letter
Agreement
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(1) Together with an indeterminate number of additional shares that may be
necessary to adjust the number of shares reserved for issuance pursuant
to such employee benefit plan as the result of any future stock split,
stock dividend or similar adjustment of the Registrant's outstanding
Common Stock.
(2) Shares are issuable upon exercise of an outstanding option with a fixed
exercise price. Pursuant to Rule 457(h) under the Securities Act of
1933, as amended, the proposed maximum aggregate offering price and the
registration fee have been computed upon the basis at which the option
may be exercised.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1998, filed on March 30, 1999, which contains audited
financial statements for the most recent fiscal year for which such statements
have been filed;
(b) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the Annual Report
on Form 10-K referred to in (a) above; and
(c) The description of the Registrant's Common Stock contained
in the Registration Statement on Form 8-A filed on September 18, 1993, under
Section 12(g) of the Exchange Act, including any amendments or reports filed for
the purpose of updating such description.
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date hereof, and prior to the filing
of a post-effective amendment which indicates that the securities offered hereby
have been sold or which deregisters the securities covered hereby then remaining
unsold, shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act authorize a court to award, or a corporation's board of
directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"). Section 10 of the Registrant's Restated Bylaws provides for
indemnification of the Registrant's directors, officers, employees and agents to
the maximum extent permitted by Washington law. Certain of the directors of the
Registrant, who are affiliated with principal shareholders of the Registrant,
also may be indemnified by such shareholders against liability they may incur in
their capacity as a director of the Registrant, including pursuant to a
liability insurance policy for such purpose.
Section 23B.08.320 of the Washington Business Corporation Act
authorizes a corporation to limit a director's liability to the corporation or
its shareholders for monetary damages for acts or omissions as a director,
except in certain circumstances involving intentional misconduct, self-dealing
or illegal corporate loans or distributions, or any transactions from which the
director personally receives a benefit in money, property or services to which
the director is not entitled. Article 9 of the Registrant's Restated Articles of
Incorporation contains provisions implementing, to the fullest extent permitted
by Washington law, such limitations on a director's liability to the Registrant
and its shareholders.
The Registrant has entered into an Indemnification Agreement with each
of its executive officers and directors in which the Registrant agrees to hold
harmless and indemnify the officer or director to the fullest extent permitted
by Washington law. In addition, the Registrant agrees to indemnify the officer
or director against any and all losses, claims, damages, liabilities or expenses
incurred in connection with any actual, pending or threatened action, suit,
claim or proceeding, whether civil, criminal, administrative or investigative
and whether formal or informal, in which the officer or director is, was or
becomes involved by reason of the fact that the officer or director is or was a
director, officer, employee or agent of the Registrant, or that being or having
been such a director, officer, employee or agent, such director is or was
serving at the request of the Registrant as a director, officer, employee,
trustee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit
plan, whether the basis of such proceeding is alleged action (or inaction) by
the officer or director in an official capacity as a director, officer,
employee, trustee or agent or in any other capacity while serving as a director,
officer, employee, trustee or agent. The officer or director is not indemnified
for any action, suit, claim or proceeding instituted by or at the direction of
the officer or director unless such action, suit, claim or proceeding is or was
authorized by the Registrant's Board of Directors or unless the action is to
enforce the provisions of the Indemnification Agreement.
No indemnity pursuant to the Indemnification Agreements may be provided
by the Registrant on account of any suit in which a final, unappealable judgment
is rendered against an officer or director for an accounting of profits made
from the purchase or sale by the officer or director of securities of the
Registrant in violation of the provisions of Section 16(b) of the Exchange Act,
and amendments thereto, or for damages that have been paid directly to the
executive officer or director by an insurance carrier under a policy of
directors' and officers' liability insurance maintained by the Registrant.
Officers and directors of the Registrant are covered by insurance (with
certain exceptions and certain limitations) that indemnifies them against losses
and liabilities arising from certain alleged "wrongful acts," including alleged
errors or misstatements, or certain other alleged wrongful acts or omissions
constituting neglect or breach of duty.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
Exhibit
Number Description
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5.1 Opinion of Perkins Coie LLP regarding legality of the
Common Stock being registered
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Perkins Coie LLP (included in opinion filed as
Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 Nonqualified Stock Option Letter Agreement
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 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; and
(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;
provided, however, that paragraphs (1)(i) and (1)(ii) above 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 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 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to 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 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 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all 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 Spokane, State of Washington, on the 3rd day of
September, 1999.
ITRON, INC.
/s/ DAVID G. REMINGTON
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By: David G. Remington
Vice President and Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below authorizes David G. Remington
and Johnny M. Humphreys, or either of them, as attorneys-in-fact with full power
of substitution, to execute in the name and on the behalf of each person,
individually and in each capacity stated below, and to file, any and all
amendments to this Registration Statement, including any and all post-effective
amendments.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated below on the 3rd day of September, 1999.
Signature Title
/s/ MICHAEL J. CHESSER President and Chief Executive Officer
- ----------------------------- (Principal Executive Officer)
Michael J. Chesser
/s/ DAVID G. REMINGTON Vice President and Chief Financial Officer
- ----------------------------- (Principal Financial and Accounting Officer)
David G. Remington
/s/ MICHAEL B. BRACY Director
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Michael B. Bracy
/s/ TED C. DEMERRITT Director
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Ted C. DeMerritt
/s/ JON E. ELIASSEN Director
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Jon E. Eliassen
/s/ JOHNNY M. HUMPHREYS Director
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Johnny M. Humphreys
/s/ MARY ANN PETERS Director
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Mary Ann Peters
/s/ PAUL A. REDMOND Director
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Paul A. Redmond
/s/ GRAHAM M. WILSON Director
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Graham M. Wilson
/s/ STUART EDWARD WHITE Director
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Stuart Edward White
INDEX TO EXHIBITS
Exhibit
Number Description
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5.1 Opinion of Perkins Coie LLP regarding legality of the
Common Stock being registered
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Perkins Coie LLP (included in opinion filed
as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 Nonqualified Stock Option Letter Agreement
EXHIBIT 5.1
PERKINS COIE LLP
A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
1201 THIRD AVENUE, 40TH FLOOR, SEATTLE, WASHINGTON 98101-3099
TELEPHONE: 206 583-8888 FACSIMILE: 206 583-8500
September 3, 1999
Itron, Inc.
2818 N. Sullivan Road
Spokane, Washington 99216-1897
Re: Registration Statement on Form S-8 of Shares of Common Stock,
No Par Value, of Itron, Inc.
Ladies and Gentlemen:
We have acted as counsel to Itron, Inc. (the "Company") in connection
with the preparation of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act"), which the
Company is filing with the Securities and Exchange Commission with respect to up
to 158,975 shares of Common Stock, no par value, which may be issued under a
nonqualified stock option letter agreement (the "Agreement").
We have examined the Registration Statement and such documents and
records of the Company and other documents as we have deemed relevant and
necessary for the purpose of this opinion. In giving this opinion, we are
assuming the authenticity of all instruments presented to us as originals, the
conformity with originals of all instruments presented to us as copies and the
genuineness of all signatures.
Based on and subject to the foregoing, we are of the opinion that any
shares that may be issued pursuant to the Agreement have been duly authorized
and that, upon the due execution by the Company and the registration by its
registrar of such shares, issuance thereof by the Company in accordance with the
terms of the Agreement and the receipt of consideration therefor in accordance
with the terms of the Agreement, such shares will be validly issued, fully paid
and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ PERKINS COIE LLP
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this registration statement of
Itron, Inc. on Form S-8 of our report dated February 17, 1999 appearing in the
Annual Report on Form 10-K of Itron, Inc. for the year ended December 31, 1998.
/s/ DELOITTE & TOUCHE LLP
Seattle, Washington
September 3, 1999
EXHIBIT 99.1
ITRON, INC.
NONQUALIFIED STOCK OPTION LETTER AGREEMENT
TO: Michael Chesser
We are pleased to inform you that you have been selected by Itron, Inc.
(the "Company") to receive a nonqualified stock option for the purchase of
158,975 shares of the Company's Common Stock at an exercise price of $7.3125 per
share.
The terms of the option are as set forth in this Agreement. In
addition, although the option is not granted under the Company's 1989 Restated
Stock Option Plan (the "Plan"), to the extent not inconsistent with the terms
set forth below, the terms and conditions of the Plan will be applicable to the
option. Such terms and conditions are hereby incorporated into this Agreement,
and a copy of the Plan is attached to this Agreement. The most important terms
of the option are summarized as follows:
Term: The term of the option is ten years from date of grant, unless
sooner terminated.
Exercise: During your lifetime only you can exercise the option. The
Plan also provides for exercise of the option by the personal representative of
your estate, by the beneficiary you have designated on forms prescribed by and
filed with the Company, or by the beneficiary of your estate following your
death. You may use the Notice of Exercise of Nonqualified Stock Option in the
form attached to this Agreement when you exercise the option.
Payment for Shares: Unless the Plan Administrator at any time
determines otherwise, the option may be exercised by the delivery of any
combination of:
(a) Cash, personal check, bank certified or cashier's check;
(b) Tendering (either actually or by attestation) shares of the capital
stock of the Company held by you for a period of at least six months having a
fair market value at the time of exercise, as determined in good faith by the
Plan Administrator, equal to the exercise price (You should consult your tax
advisor before exercising this option with stock you received upon the exercise
of an incentive stock option.); and/or
(c) A properly executed exercise notice together with irrevocable
instructions to a broker to promptly deliver to the Company the amount of sale
or loan proceeds to pay the exercise price.
Termination: The option will terminate immediately upon termination for
cause, as defined in the Plan, or three months after cessation of employment
with the Company or a related corporation, unless cessation is due to total
disability, in which case the option will terminate upon the earlier of 12
months after cessation of employment and the option's expiration date (June 7,
2009). If you die while the option is exercisable, the option may be exercised
until the earlier of one year after the date of death and the option's
expiration date.
Withholding Taxes: As a condition to the exercise of the option, you
must make such arrangements as the Company may require for the satisfaction of
any federal, state or local withholding tax obligations that may arise in
connection with such exercise. The Company has the right to retain without
notice sufficient shares of stock to satisfy the withholding obligation. Unless
the Plan Administrator determines otherwise, you may satisfy the withholding
obligation by electing to have the Company withhold from the shares to be issued
upon exercise that number of shares having a fair market value equal to the
amount required to be withheld (up to the minimum required federal tax
withholding rate).
Transfer of Option: The option is not transferable except by will or
by the applicable laws of descent and distribution.
Vesting: The option will vest and become exercisable according to the
following schedule:
Date on and After Which Portion of Total Option
Option Is Exercisable Which Is Exercisable
- ------------------------------------ ------------------------------------
June 7, 2000 33%
June 7, 2001 66%
June 7, 2002 100%
Change of Control: In the event of a Change of Control (as defined in
your Change of Control Agreement dated June 7, 1999), the option vesting will
accelerate and the option will be exercisable as follows:
Duration of Employment Portion of Total Option Which Is Exercisable
- ---------------------------- -----------------------------------------------
Less than 6 months 33%
At least 6 months 66%
At least 12 months 100%
Section 16 of the Securities Exchange Act: If an individual subject to
Section 16 of the Securities Exchange Act sells shares of Common Stock obtained
upon the exercise of a stock option within six months after the date the option
was granted, such sale may result in short-swing profit recovery under Section
16(b) of the Securities Exchange Act.
Date of Grant: The date of grant of the option is June 7, 1999.
THE COMPANY INTENDS TO FILE AND MAINTAIN A REGISTRATION STATEMENT WITH
RESPECT TO THE SHARES THAT WILL BE ISSUED UPON THE EXERCISE OF THIS OPTION BUT
HAS NO OBLIGATION TO DO SO. IN THE EVENT THAT SUCH REGISTRATION IS NOT EFFECTIVE
AT THE TIME YOU WISH TO EXERCISE, YOU WILL NOT BE ABLE TO EXERCISE THE OPTION
UNLESS EXEMPTIONS FROM REGISTRATION UNDER FEDERAL AND STATE SECURITIES LAWS ARE
AVAILABLE; SUCH EXEMPTIONS FROM REGISTRATION ARE VERY LIMITED AND MIGHT BE
UNAVAILABLE.
Please execute the Acceptance and Acknowledgment set forth below on the
enclosed copy of this Agreement and return it to the undersigned.
Very truly yours,
ITRON, INC.
By /s/ JOHNNY M. HUMPHREYS
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Johnny M. Humphreys
Its: Chairman of the Board