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Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
INSTRUMENT SYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 11-1893410
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 Jericho Quadrangle, Jericho, New York 11753
(Address of principal executive offices) (Zip Code)
INSTRUMENT SYSTEMS CORPORATION OUTSIDE DIRECTOR STOCK AWARD PLAN
(Full Title of the Plan)
ROBERT BALEMIAN, PRESIDENT
INSTRUMENT SYSTEMS CORPORATION
100 Jericho Quadrangle
Jericho, New York 11753
(Name and address of agent for service)
(516) 938-5544
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount Offering Aggregate Amount of
Title of Securities To Be Price Per Offering Registration
To be Registered Registered Share (1) Price (1) Fee
- ------------------- ---------- --------- --------- ------------
Common Stock, par
value $.25 per
share 300,000 shs.(2) $9.25 $2,775,000 $957
(1) Estimated solely for the purpose of calculating the
registration fee, based upon the average of the high and low
closing sales prices of the Company's Common Stock on the New York
Stock Exchange on February 16, 1994.
(2) The Registration Statement also covers an indeterminate number
of additional shares of Common Stock which may become issuable
pursuant to anti-dilution and adjustment provisions of the Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this
Registration Statement the documents listed in (a) through (c)
below:
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934, or either (I) the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act of 1933 that
contains audited financial statements for the
Registrant's latest fiscal year for which such statements
have been filed or (II) the Registrant's effective
registration statement on Form 10 filed under the
Securities Exchange Act of 1934 containing audited
financial statements for the Registrant's latest fiscal
year;
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since the
end of the fiscal year covered by the Registrant's
document referred to in (a) above;
(c) The description of the class of securities to be offered
which is contained in a registration statement filed
under Section 12 of the Securities Exchange Act of 1934,
including any amendment or report filed for the purpose
of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which
deregisters all such 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.
Under provisions of the Certificate of Incorporation and
By-Laws of Registrant, each person who is or was a director or
officer of Registrant shall be indemnified by Registrant as of
right to the full extent permitted or authorized by the General
Corporation Law of Delaware.
Under such law, to the extent that such person is successful
on the merits of defense of a suit or proceeding brought against
him by reason of the fact that he is a director or officer of
Registrant, he shall be indemnified against expenses (including
attorneys' fees) reasonably incurred in connection with such
action.
If unsuccessful in defense of a third-party civil suit or a
criminal suit is settled, such a person shall be indemnified under
such law against both (1) expenses (including attorneys' fees) and
(2) judgments, fines and amounts paid in settlement if he acted in
good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of Registrant, and with respect to
any criminal action, had no reasonable cause to believe his conduct
was unlawful.
If unsuccessful in defense of a suit brought by or in the
right of Registrant, or if such suit is settled, such a person
shall be indemnified under such law only against expenses
(including attorneys' fees) incurred in the defense or settlement
of such 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 Registrant except that if such a person is adjudicated to be
liable in such suit for negligence or misconduct in the performance
of his duty to Registrant, he cannot be made whole even for
expenses unless the court determines that he is fairly and
reasonably entitled to be indemnified for such expenses.
The Company entered into Indemnification Agreements with each
of its officers and directors. The Agreements provide for reimbursement
for all direct and indirect costs of any type or nature whatsoever
(including attorneys' fees and related disbursements) actually and
reasonably incurred in connection with either the investigation,
defense or appeal of a Proceeding, as defined, including amounts
paid in settlement by or on behalf of an Indemnitee.
The officers and directors of the Company are covered by
officers' and directors' liability insurance. The policy coverage
is $20,000,000, which includes reimbursement for costs and fees.
There is a maximum aggregate deductible for each loss under the
policy of $100,000.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4 Instrument Systems Corporation Outside Director Stock
Award Plan
5 Opinion and consent of Blau, Kramer, Wactlar & Lieberman,
P.C.
23.1 Consent of Blau, Kramer, Wactlar, & Lieberman, P.C. -
included in their opinion filed as Exhibit 5.
23.2 Consent of Arthur Andersen & Co.
24 Power 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 of 1933;
(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;
(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
Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purposes 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.
(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 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 the time shall be deemed to be the
initial bona fide offering thereof.
(c) 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 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 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 Jericho,
New York on the 8th day of February, 1994.
INSTRUMENT SYSTEMS CORPORATION
By: Harvey R. Blau
---------------------
Harvey R. Blau
Chairman of the Board
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of
1933, as amended, this Registration Statement has been signed on
February 8, 1994 by the following persons in the capacities
indicated. Each person whose signature appears below constitutes
and appoints Harvey R. Blau and Robert Balemian, and each of them
acting individually, with full power of substitution, our true and
lawful attorneys-in-fact and agents to do any and all acts and
things in our name and on our behalf in our capacities indicated
below which they or either of them may deem necessary or advisable
to enable Instrument Systems Corporation to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in
connection with this Registration Statement including specifically,
but not limited to, power and authority to sign for us or any of us
in our names in the capacities stated below, any and all amendments
(including post-effective amendments) thereto, granting unto said
attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be
done in such connection, as fully to all intents and purposes as we
might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or his substitute or substitutes,
may lawfully do or cause to be done by virtue thereof.
Signature Title
--------- -----
Harvey R. Blau Chairman of the Board
- ----------------------- (Principal Executive
Harvey R. Blau Officer)
Robert Balemian President and Director
- ----------------------- (Principal Operating and
Robert Balemian Financial Officer)
Patrick Alesia Vice President and Treasurer
- ----------------------- (Chief Accounting Officer)
Patrick Alesia
- ----------------------- Director
Bertrand Bell
Robert Bradley Director
- -----------------------
Robert Bradley
Abraham M. Buchman Director
- -----------------------
Abraham M. Buchman
- ----------------------- Director
Clarence A. Hill, Jr.
Ronald J. Kramer Director
- -----------------------
Ronald J. Kramer
- ----------------------- Director
Milton Paulson
James W. Stansberry Director
- -----------------------
James W. Stansberry
Martin S. Sussman Director
- -----------------------
Martin S. Sussman
William H. Waldorf Director
- -----------------------
William H. Waldorf
Lester L. Wolff Director
- -----------------------
Lester L. Wolff
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
INSTRUMENT SYSTEMS CORPORATION
Form S-8 Registration Statement
E X H I B I T I N D E X
Page No. in Sequential
Exhibit Numbering of all Pages,
Number Exhibit Description including Exhibit Pages
- ------- ------------------- -----------------------
4 Outside Director Stock Award
Plan.............................
5 Opinion and Consent of
Counsel..........................
23.1 Consent of Counsel............... See Exhibit 5
23.2 Consent of Arthur Andersen & Co.
24 Power of Attorney................ See signature page
INSTRUMENT SYSTEMS CORPORATION
OUTSIDE DIRECTOR STOCK AWARD PLAN
1. Purpose. Instrument Systems Corporation and its subsidiaries (the
"Company") wish to establish an Outside Director Stock Award Plan (the "Plan").
The purposes of the Plan are to attract and retain well-qualified persons for
service as directors, who are not salaried employees of the Company or any of
its subsidiaries ("Outside Directors"); and to provide such Outside Directors
with the opportunity to increase their proprietary interest in the Company, and
thereby to increase their personal interest in the Company's continued success,
through the payment of a portion of directors' fees in shares of the Company's
Common Stock, $.25 par value ("Common Stock").
2. Administration. The Board of Directors of the Company (the "Board")
will have the responsibility and authority to administer and interpret the
provisions of this Plan. All determinations of the Board with respect to the
Plan shall be final and binding upon all persons.
In administering the Plan, the Board may employ attorneys, consultants,
accountants or other persons, and the Company and the Board shall be entitled to
rely upon the advice, opinions or valuations of any such persons. All usual and
reasonable expenses of the Board shall be paid by the Company. No member of the
Board shall be personally liable for any action, determination or interpretation
taken or made with respect to the Plan or awards made thereunder, and all
members of the Board shall be fully indemnified and protected by the Company in
respect of any such action, determination or interpretation, in the absence of
any fraudulent act or omission.
3. Eligibility. Awards under the Plan shall be available to all Outside
Directors; provided, that no director who is an employee of the Company shall be
eligible for participation in the Plan.
4. Awards. At each meeting of the Board next following the Annual Meeting
of Stockholders of the Company beginning with the meeting to be held on February
8, 1994 (the "Effective Date"), each Outside Director shall be awarded shares of
the Company's Common Stock valued at $10,000 based upon the closing price of the
Company's Common Stock on the New York Stock Exchange or such other exchange
upon which the Company's Common Stock is listed for the twenty (20) consecutive
trading days preceding the Annual Meeting date, subject to and in accordance
with the terms of Section 5. Each such award shall be evidenced by written
agreement, executed by the Outside Director and the Company. Common Stock
awarded to each Outside Director shall vest over a period of three years,
subject to forfeiture under certain conditions.
Each share certificate issued in respect of any grant under this Plan shall
be registered in the name of the Outside Director to whom it is granted
hereunder and shall be deposited by and on behalf of such director, together
with a stock power properly endorsed in blank and any other documentation
requested by the Company, with the Company. The Company shall hold and retain
such share certificates in a custodial capacity until the relevant restrictions
have been satisfied by such Outside Director.
12
5. Terms and Conditions. (a) Up to 300,000 shares of Common Stock may be
issued pursuant to the Plan. Such shares may not be sold, assigned, transferred
or otherwise disposed of in the absence of an effective registration statement
covering such shares, or unless such registration is not required by reason of
an exemption available under the Securities Act of 1933, as amended (the "Act").
Shares awarded under the Plan shall be certificated. Certificates for shares
issued under the Plan shall include the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD OR OTHERWISE PLEDGED, HYPOTHECATED OR TRANSFERRED UNLESS (A)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR (B) AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS
AVAILABLE. IN ADDITION, THE TRANSFERABILITY OF THIS CERTIFICATE AND THE
SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS
CONTAINED IN THE INSTRUMENT SYSTEMS CORPORATION OUTSIDE DIRECTOR STOCK
AWARD PLAN."
(b) No award of Common Stock received under the Plan may be sold, assigned,
transferred or otherwise disposed of until vested. If an Outside Director ceases
to be a director by reason of voluntary termination or failure to be reelected,
all shares not yet vested shall be forfeited. In the case of death, disability
or retirement as a director (retirement shall mean termination as a director
after reaching 65 years of age) all shares shall become fully vested.
(c) An award of Common Stock hereunder, received by an Outside Director,
shall be shown in the Company's proxy statement for the year in which the Common
Stock was granted, and the Outside Director, as of the date of receipt of the
Common Stock, shall be registered as a "Stockholder of Record" and shall
immediately become entitled to all dividends paid on the Company's Common Stock
and to all voting rights accorded the Company's Common Stock and shares shall be
shown on the appropriate form for reporting beneficial ownership of securities
pursuant to Section 16 of the Securities Exchange Act of 1934.
(d) The Board shall appropriately adjust the number of shares for which
awards may be granted pursuant to the Plan in the event of reorganization,
recapitalization, stock split, reverse stock split, stock dividend, exchange or
combination of shares, merger, consolidation, rights offering, or any change in
capitalization.
6. Regulatory Compliance and Listing. The delivery of any shares under
this Plan may be postponed by the Company for such period as may be required to
comply with Federal or State securities laws, including listing requirements,
national securities exchange requirements and any other law or regulation
applicable to the delivery of such shares. The Company shall not be obligated to
deliver any shares under this Plan if such delivery shall constitute a violation
of any provision of any law or any regulation of any governmental authority or
any national securities exchange. In addition, the shares when delivered may be
subject to conditions, including transfer restrictions, if such conditions are
required to comply with applicable securities laws.
7. Dividends. An Outside Director shall have the right (a) to receive all
dividends and other distributions paid with respect to the restricted shares
granted to such director under this Plan and registered in such director's name,
and (b) to vote or execute proxies in respect of the restricted shares granted
to such director under this Plan and registered in such director's name.
8. Taxes. Any taxes that are required to be withheld as a result of any
stock grant to any Outside Director pursuant to this Plan shall be paid to the
Company in cash by such Outside Director unless deducted and withheld to the
extent permitted by applicable law, from any cash fees payable by the Company to
such Outside Director.
13
9. Limitations and Conditions. Prior to each grant of any restricted
shares of Common Stock pursuant to this Plan, an Outside Director may be
required to make reasonable representations satisfactory to the Company to the
effect that such shares are to be held for investment purposes only and not with
a view to or for resale or distribution, except in compliance with the Act and
the rules and regulations thereunder, and each such director may be required to
submit a written undertaking to the Company in form and substance reasonably
satisfactory to it that such Outside Director will not publicly offer to sell or
otherwise distribute such shares other than (a) in the manner and to the extent
permitted by SEC Rule 144, as promulgated under the Act, (b) pursuant to any
other exemption from the registration provisions of the Act, or (c) pursuant to
an effective registration statement filed under the Act.
10. Transferability. The restricted shares of Common Stock granted under
this Plan and held in custody by the Company, and any rights created thereby or
thereunder in any person, shall not be assigned, transferred, encumbered, sold,
pledged or otherwise disposed of or hypothecated by any person, including
without limitation, by operation of law, execution, garnishment, attachment or
bankruptcy, until such time as the relevant restrictions are satisfied and all
provisions of any applicable federal or state securities law, rule or regulation
have been complied with.
11. No Right to Continue as an Outside Director. Nothing contained in this
Plan shall be construed as conferring upon the Outside Director the right to
continue to be associated with the Company as an Outside Director or in any
other capacity.
12. Unfunded Status of this Plan. This Plan shall be an unfunded plan. The
Company shall not be required to establish a special or separate fund or reserve
or to make any other segregation of assets to assure the issuance of any shares
granted under this Plan, except for the 300,000 shares reserved pursuant to
Section 5 herein.
13. Amendment or Discontinuance. The Board of Directors of the Company may
at any time amend, rescind or terminate the Plan, as it shall deem advisable;
provided, however, (i) that no change may be made in awards theretofore granted
under the Plan which would impair participants' rights without their consent,
and (ii) that no amendment to the Plan shall be made without approval of the
Company's stockholders if the effect of such amendment would be to (a) increase
the number of shares reserved for issuance under the Plan; (b) change the
requirements for eligibility under the Plan; or (c) materially modify the method
of determining the number of shares awarded under the Plan.
14. Governing Law. This Plan and all determinations made and actions taken
hereto shall be governed by the laws of the State of New York pertaining to
contracts made and to be performed wholly within such jurisdiction, except as
Federal law may apply.
14
February 17, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Instrument Systems Corporation
Registration Statement on Form S-8
Gentlemen:
Reference is made to the filing by Instrument
Systems Corporation (the "Corporation") of a Registration
Statement on Form S-8 with the Securities and Exchange
Commission pursuant to the provisions of the Securities
Act of 1933, as amended, covering the registration of
300,000 shares of the Corporation's Common Stock, $.25
par value per share, in connection with the Corporation's
Outside Director Stock Award Plan.
As counsel for the Corporation, we have examined its
corporate records, including its Certificate of
Incorporation, as amended, By-Laws, as amended, its
corporate minutes, the form of its Common Stock
certificate, its Outside Director Stock Award Plan, the
form of options granted under such Plan, related
documents under such Plan, and such other documents as we
have deemed necessary or relevant under the
circumstances.
Based upon our examination, we are of the opinion
that:
Exhibit 5
Securities and Exchange Commission
February 17, 1994
Page -2-
1. The Corporation is duly organized and validly
existing under the laws of the State of Delaware.
2. There have been reserved for issuance by the
Board of Directors of the Corporation 300,000 shares of
its Common Stock, $.25 par value per share. The shares
of the Corporation's Common Stock, when issued upon
exercise of options under and pursuant to the terms of
the aforesaid Outside Director Stock Award Plan, will be
validly authorized, legally issued, fully paid and
nonassessable.
We hereby consent to be named in the Registration
Statement as counsel of the Corporation, and we hereby
consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
Blau, Kramer, Wactlar & Lieberman, P.C.
BLAU, KRAMER, WACTLAR
& LIEBERMAN, P.C.
See Exhibit 5.
ARTHUR ANDERSEN & CO.
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to
the incorporation by reference in this registration
statement of our report dated November 9, 1993 included
in Instrument Systems Corporation's Form 10-K for the
year ended September 30, 1993 and to all references to
our Firm included in this registration statement.
Arthur Andersen & Co.
ARTHUR ANDERSEN & CO.
Roseland, New Jersey
February 14, 1994
Exhibit 23.2
See signature page.