As filed with the Securities and Exchange Commission on
November 13, 1997
Registration No. ________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8 REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
---------
DATRON SYSTEMS INCORPORATED
(Exact name of registrant as specified in its charter)
----------
Delaware 95-2582922
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
----------
304 Enterprise Street, Escondido, California 92029
(Address of principal executive offices)
---------
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
---------
David A. Derby
Datron Systems Incorporated
304 Enterprise Street
Escondido, California 92029
(Name and address of agent for service)
(760) 747-3734
(Telephone number, including area code, of agent for service
Copy to: Timothy G. Hoxie, Esq.
Heller, Ehrman, White & McAuliffe
333 Bush Street
San Francisco, California 94104-2878
(415) 772-6000
----------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==============================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share <F1> price fee
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
($.01 par value) 200,000 $10.25 $2,050,000 $621.21
==============================================================================
<FN>
<F1> Estimated (solely for the purpose of calculating the registration fee)
on the basis of the average high and low prices reported of the registrant's
Common Stock on the Nasdaq National Market on November 10, 1997 as reported
in the Wall Street Journal on November 11, 1997.
</FN>
</TABLE>
<PAGE>2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed or to be filed with the
Commission by the Registrant are incorporated by reference in
this registration statement:
(a) The Registrant's latest annual report (Form 10-K) filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or the latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Securities Act"),
that contains audited financial statements for the Registrant's latest
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 Exchange Act since the end of
the fiscal year covered by the annual report or prospectus
referred to in (a) above;
(c) The description of the Common Stock of the
Registrant contained in the registration statement filed under
the Exchange Act registering such Common Stock under Section
12 of the Exchange Act.
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 hereby
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 part
thereof from the date of filing of such documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Victor A. Hebert is a shareholder of a professional
corporation that is a partner of Heller, Ehrman, White &
McAuliffe and holds 2,000 shares of Common Stock and options
to purchase 5,000 shares of Common Stock of the Registrant.
Item 6. Indemnification of Directors and Officers
The Registrant has the power to indemnify its officers
and directors against liability for certain acts pursuant to
Section 42 of the Registrant's By-laws:
<PAGE> 3
"(a) Right of Indemnity. The corporation shall indemnify
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding whether civil, criminal, administrative or
investigative, whether or not the action is by or in the right
of the corporation, by reason of the fact that the person is
or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by
the person in connection with such action, suit or proceeding
to the maximum extent permitted by Section 145 of the Delaware
General Corporation Law, as amended from time to time. For
purposes of these subparagraphs, "the corporation", "other
enterprise", "fines", and "serving at the request of the
corporation" shall have the meaning specified in Section 145.
(b) Approval of Indemnity. Upon written request to
the Board of Directors by any person seeking indemnification
under Section 145(a) or (b), the Board of Directors shall
approve indemnification upon a determination that
indemnification of the person is proper in the circumstances
because the person has met the applicable standard of conduct
set forth in Section 145(a) or (b). Such determination shall
be made (1) by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to such
action, suit or proceeding, of (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a
written opinion, or (3) if there are no disinterested
directors, by the stockholders.
(c) Advancement of Expenses. Expenses incurred by any
person entitled to indemnification under this Bylaw in
defending a civil or criminal action, suit or proceeding shall
be paid by the corporation in advance of the final disposition
of such action, suit or proceeding, provided that, if Section
145 so requires, the payment of such expenses incurred by an
officer or director in his or her capacity as such (and not in
any other capacity in which a director or officer, including
without limitation service with respect to an employee benefit
plan) in advance of an action, suit or proceeding shall only
be made upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall
ultimately be determined that such director or officer is not
entitled to be indemnified by the corporation as authorized in
Section 145.
(d) Non-exclusivity of Rights. The right to
indemnification and payment of expenses incurred in defending
a proceeding in advance of its final disposition conferred in
this Bylaw shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, Bylaw,
agreement, vote of stockholders or disinterested directors or
otherwise. Such rights shall continue as to a person who has
ceased to be an officer, director, employee or agent and shall
inure to the benefit of the heirs, executors and
administrators of such a person.
(e) Contract Right. The right to indemnification
confirmed by this Bylaw shall be a contract right.
(f) Proceedings by Indemnitee. A person otherwise
entitled to indemnification in connection with any action,
suit or proceeding (or part thereof) initiated by such person
shall only be indemnified for, or have his or her expenses
advanced in connection therewith, if such proceedings (or part
thereof) are authorized by the Board of Directors."
<PAGE>4
In addition, the Registrant has entered into
Indemnification Agreements with each of its directors and
officers as authorized by the Registrant's stockholders at the
annual meeting held August 11, 1992. Such agreements are
intended to require the Registrant to indemnify such directors
and officers to the fullest extent permitted by Delaware law.
The Registrant has directors and officers liability
insurance which would indemnify the directors and officers of
the Registrant against damages arising out of certain kinds of
claims which might be made against them based on actions taken
or omissions made in their capacity as directors or officers
of the Registrant.
Item 8. Exhibits
4.1 Employee Stock Purchase Plan
(incorporated by this reference to the Exhibit bearing
the same number filed with the Registrant's Annual Report
on Form 10-K for the fiscal year ended March 31, 1997)
5 Opinion of Heller, Ehrman, White & McAuliffe
23.1 Consent of Heller, Ehrman, White & McAuliffe
(filed as part of Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (see page 8)
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
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
and of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
<PAGE>5
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum
aggregate offering price set forth 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 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
posteffective 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 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. The undersigned Registrant hereby undertakes to
deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest
annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver,
or cause to be delivered to each person to whom the prospectus
is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to
provide such interim financial information.
D. 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 provisions described in Item 6, 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 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
<PAGE>6
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.
<PAGE>7
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 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 Escondido, State of
California, on this 13th day of November, 1997.
DATRON SYSTEMS INCORPORATED
By: /s/ David A. Derby
---------------------
President and
Chief Executive Officer
<PAGE>8
POWER OF ATTORNEY TO SIGN AMENDMENTS
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below appoints David A. Derby and William L.
Stephan, and each of them, with full power of substitution and
full power to act without the other such person's true and
lawful attorney-in-fact and agent for such person in such
person's name, place and stead, in any and all capacities, to
sign any or all amendments (including post-effective
amendments) to this registration statement on Form S-8 and to
file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents,
and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be
done in and about the premises in order to effectuate the same
as fully, to all intents and purposes, as they or such person
might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, as amended, this registration statement on Form S-8 has
been signed by the following persons in the capacities and on the
dates indicated.
/s/ David A. Derby President, Chief November 4, 1997
- ------------------ Executive Officer and
David A. Derby Director (Principal
Executive Officer)
/s/ Richard W. Pershing Chairman of the Board November 4, 1997
- ----------------------- of Directors
Richard W. Pershing
/s/ William L. Stephan Vice President, Chief November 4, 1997
- ---------------------- Financial Officer and
William L. Stephan Treasurer (Principal
Accounting Officer)
/s/ Kent P. Ainsworth Director November 5, 1997
- ---------------------
Kent P. Ainsworth
/s/ Michael F. Bigham Director November 4, 1997
- ---------------------
Michael F. Bigham
/s/ Adrian C. Cassidy Director November 4, 1997
- ---------------------
Adrian C. Cassidy
/s/ Peter F. Scott Director November 4, 1997
- ---------------------
Peter F. Scott
/s/ Robert D. Sherer Director November 4, 1997
- ---------------------
Robert D. Sherer
<PAGE>9
Index to Exhibits
Exhibit No. Description of Exhibit
- ----------- ----------------------------------------------------
4.1 Employee Stock Purchase Plan (incorporated by this
reference to the Exhibit bearing the same number filed
with the Registrant's Annual Report on Form 10-K for
the fiscal year ended March 31, 1997).
5 Opinion of Heller, Ehrman, White & McAuliffe
23.1 Consent of Heller, Ehrman, White & McAuliffe
(filed as part of Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (see page 8)
Exhibit 5
[LETTERHEAD OF HELLER, EHRMAN, WHITE & MCAULIFFE APPEARS HERE]
November 12, 1997
11410-0000
Datron Systems Incorporated
304 Enterprise Street
Escondido, California 92029
Registration Statement on Form S-8
Employee Stock Purchase Plan
-----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Datron Systems Incorporated, a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") that the Company proposes to file
with the Securities and Exchange Commission on or about November 13, 1997 for
the purpose of registering under the Securities Act of 1933, as amended,
200,000 shares (the "Shares") of the Company's Common Stock, par value $0.01
per share, issuable under the Company's Employee Stock Purchase Plan
(the "Plan").
In connection with this opinion, we have assumed the authenticity of all
records, documents and instruments submitted to us as originals, the genuiness
of all signatures, the legal capacity of natural persons and the authenticity
and the conformity to the originals of all records, documents and instruments
submitted to us as copies.
We have based our opinion upon our review of the following records,
documents and instruments:
(a) The Certificate of Incorporation of the Company certified by
the Secretary of State of the State of Delaware as of
November 12, 1997 and certified to us by an officer of the
Company as being complete and in full force and effect as of the
date of this opinion;
(b) The Bylaws of the Company certified to us by an officer of
the Company as being complete and in full force and effect as of
the date of this opinion;
<PAGE>2
(c) A Certificate of Good Standing respecting the Company from the
Delaware Secretary of State dated November 12, 1997;
(d) A Certificate of the Company's transfer agent as to the
number of issued and outstanding shares of the Company's Common Stock
dated as of November 12, 1997;
(e) The Registration Statement;
(f) The Plan; and
(g) A certificate of the Chief Financial Officer and Vice President of
the Company as to certain factual matters relevant for the purposes
of this opinion.
This opinion is limited to the Delaware General Corporation Law. We
disclaim any opinion as to any statute, rule, regulation, ordinance, order or
other promulgation of any other jurisdiction or any regional or local
governmental body.
Based upon the foregoing and our examination of such questions of law as
we have deemed necessary or appropriate for the purpose of this opinion, and
assuming that (i) the Registration Statement becomes and remains effective
during the period when the shares are offered and sold, (ii) the full
consideration stated in the Plan is paid for each Share, (iii) the per
share Purchase Price determined pursuant to the Plan is at least equal to the
par value of each Share, and (iv) all applicable securities laws are complied
with, it is our opinion that, when issued and sold by the Company, and after
payment therefor in the manner provided in the Plan, the Shares will be
validly issued, fully paid and nonassessable.
This opinion is rendered to you in connection with the issuance of the
Shares and is solely for your benefit. This opinion may not be relied upon by
you for any other purpose, or relied upon by any other person, firm,
corporation or other entity for any purpose, without our prior written
consent. We disclaim any obligation to advise you of any change of law
that occurs, or any facts of which we become aware, after the date of this
opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Heller, Ehrman, White & McAuliffe
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Datron Systems Incorporated on Form S-8 of our reports
dated May 9, 1997 appearing in and incorporated by reference in
the Annual Report on Form 10-K of Datron Systems Incorporated for
the year ended March 31, 1997.
/s/ Deloitte & Touche LLP
San Diego, California
November 13, 1997
