As filed with the Securities and Exchange Commission on November 18, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DETECTION SYSTEMS, INC.
(exact name of registrant as specified in its charter)
NEW YORK 16-0958589
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
130 PERINTON PARKWAY, FAIRPORT, NEW YORK 14450
(Address of Principal Executive Offices)
DETECTION SYSTEMS, INC.
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the Plan)
---------------------------------------------------------
Karl H. Kostusiak, President
Detection Systems, Inc.
130 Perinton Parkway
Fairport, New York 14450
716-223-4060
---------------------------------------------------------
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copy to:
Justin P. Doyle, Esq.
Nixon Peabody LLP
Clinton Square, P.O. Box 1051
Rochester, New York 14604
716-263-1000
CALCULATION OF REGISTRATION FEE
Proposed Proposed Amount of
Securities to Amount to be Maximum Offering Maximum Aggregate Registration
be registered registered price per share* offering price* fee
Common Stock
$.05 par value
and associated
options 50,000 $9.688 $484,375 $134.66
- ---------------
*Inserted solely for the purpose of calculating the registration fee pursuant to
Rule 457(h) under the Securities Act of 1933, as amended, and based upon the
average of the high and low trade prices for the registrant's Common Stock on
The Nasdaq Stock Market on November 16, 1999.
<PAGE>
Part II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents which have been filed by Detection Systems, Inc.
(the "Company") with the Securities and Exchange Commission (the "SEC") are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
March 31, 1999, filed pursuant to Section 13 of the Securities Exchange Act of
1934 filed with the SEC on June 29 1999;
(b) The Company's Proxy Statement relating to its 1999 Annual Meeting of
Stockholders filed with the SEC on July 8, 1999;
(c) The description of the Company's Common Stock contained in Exhibit 4
to the Company's 1993 Annual Report on Form 10-K (File No. 0-8125), including
any amendments or reports filed for the purpose of updating such description.
All documents subsequently filed by the Company 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
hereby have been sold or which deregisters all securities remaining unsold shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of the 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.
The New York Business Corporation Law (the "BCL") provides that if a
derivative action is brought against a director or officer of a corporation, the
corporation may indemnify him or her against amounts paid in settlement and
reasonable expenses, including attorneys' fees incurred by him or her, in
connection with the defense or settlement of such action, if such director or
officer acted in good faith for a purpose which he or she reasonably believed to
be in the best interests of the corporation, except that no indemnification
shall be made without court approval in respect of a threatened action, or a
pending action settled or otherwise disposed of, or in respect of any matter as
to which such director or officer has been found liable to the corporation. In a
nonderivative action or threatened action, the BCL provides that a corporation
may indemnify a director or officer against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees incurred by him or
her in defending such action, if such director or officer acted in good faith
for a purpose which he or she reasonably believed to be in the best interests of
the corporation.
Under the BCL, a director or officer who is successful, either in a
derivative or nonderivative action, is entitled to indemnification as outlined
above. Under any other circumstances, such director or officer may be
indemnified only if certain conditions specified in the BCL are met. The
indemnification provisions of the BCL are not exclusive of any other rights to
which a director or officer seeking indemnification may be entitled pursuant to
the provisions of the certificate of incorporation or the bylaws of a
corporation or, when authorized by such certificate of incorporation or bylaws,
pursuant to a shareholders' resolution, a directors' resolution or an agreement
providing for such indemnification.
The above is a general summary of certain provisions of the BCL and is
subject, in all cases, to the specific and detailed provisions of Sections
721-725 of the BCL.
Article V, Section 2 of the Company's By-Laws contains provisions
requiring indemnification by the Company of its directors and officers against
certain liabilities and expenses which they may incur as directors and officers
of the Company or of certain other entities in accordance with Sections 722-723
of the BCL.
Section 726 of the BCL also contains provisions authorizing a corporation
to obtain insurance on behalf of any director and officer against liabilities,
whether or not the corporation would have the power to indemnify against such
liabilities. The Company maintains insurance coverage under which the directors
and officers of the Company are insured, subject to the limits of the policy,
against certain losses, as defined in the policy, arising from claims made
against such directors and officers by reason of any wrongful acts as defined in
the policy, in their respective capacities as directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
EXHIBIT
NUMBER DESCRIPTION LOCATION
-------- ------------- ----------
4(a) Certificate of Incorporation Incorporated by reference
of Detection Systems, Inc., to Exhibit 3(a) of the
as amended Registrant's Quarterly Report
on form 10-Q for the quarter
ended 9/30/99.
4(b) By-laws of Detection Systems, Inc., Incorporated by reference
as amended to Exhibit 3(b) of the
Registrant's 1997 Annual
Report on Form 10-K
4(c) Detection Systems, Inc. Filed herewith
1997 Stock Option Plan, as amended
5 Opinion of Nixon Peabody LLP Filed herewith
23(a) Consent of PricewaterhouseCoopers LLP Filed herewith
23(b) Consent of Nixon Peabody LLP Included in Exhibit 5
24 Power of Attorney Included on signature page
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 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;
(2) That, for the purpose 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 in the initial
bona fide offering thereof; and
(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 the purposes
of determining 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 herein, and the offering of such securities
at that time shall be deemed to be in 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 or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed 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 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.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Company certifies that is 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 Town of Perinton, State of New York, on November 18,
1999.
DETECTION SYSTEMS, INC.
/s/ Karl H. Kostusiak
Karl H. Kostusiak
Chairman, Chief Executive Officer & President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Karl H. Kostusiak and
Frank J. Ryan, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution, to sign any and all amendments
(including post-effective amendments) to this Registration Statement 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 or necessary fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them or their or
his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
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.
/s/ Karl H. Kostusiak Chairman, CEO, President and Director 11/18/99
Karl H. Kostusiak (Principal Executive Officer)
/s/ Frank J. Ryan Vice President and Secretary/Treasurer 11/18/99
Frank J. Ryan (Principal Financial Officer)
/s/ Christopher P. Gerace Vice President and Chief Accounting Officer 11/18/99
Christopher P. Gerace (Principal Accounting Officer)
/s/ Donald R. Adair Director 11/16/99
Donald R. Adair
/s/ Mortimer B. Fuller, III Director 11/16/99
Mortimer B. Fuller, III
/s/ David B. Lederer Director 11/17/99
David B. Lederer
/s/ Edward C. McIrvine Director 11/16/99
Edward C. McIrvine
Exhibit 4(c)
DETECTION SYSTEMS, INC.
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
Adopted by the Board of Directors
September 4, 1998
This is a stock plan pursuant to which options to purchase the Common
Stock of Detection Systems, Inc., a New York corporation (the "Corporation"),
may be granted to non-employee directors of the Corporation as partial
compensation for their service as directors. This plan shall be known as the
Non-Employee Director Stock Option Plan (the "Plan"). The purpose of the Plan is
to obtain and retain the services of qualified persons who are not full-time
employees of the Corporation to serve as directors.
SECTION 1. ADMINISTRATION. The Plan shall be administered by the
Corporation's Board of Directors (the "Board"). The Board shall, subject to the
provisions of the Plan and Section 9 in particular, grant options under the Plan
and shall have the power to construe the Plan, to determine all questions
thereunder, and to adopt and amend such rules and regulations for the
administration of the Plan as it may deem desirable.
SECTION 2. SHARES AVAILABLE. The Board shall reserve for the purposes
of this Plan, out of the authorized but unissued shares of Common Stock of the
Corporation, or out of shares of Common Stock held in its Treasury, or partly
out of each, as shall be determined by the Board, a total of 50,000 shares of
the Common Stock (or the number and kind of shares of stock or other securities
which, in accordance with Section 7 of this Plan, shall be substituted for those
shares or to which those shares shall be adjusted). In the event that an option
granted under the Plan to any non-employee director expires or is terminated
unexercised as to any shares covered thereby, the shares not purchased under it
shall thereafter again be available for the purposes of this Plan.
SECTION 3. ELIGIBILITY. Each member of the Corporation's Board of
Directors who is not a full-time employee of the Corporation ("non-employee
director") shall be eligible to receive stock options under this Plan.
SECTION 4. GRANTS AND TERMS OF OPTIONS; OPTION AGREEMENTS. The Board of
Directors may grant options from time to time under this Plan, provided that any
options granted prior to ratification of this Plan by the Corporation's
shareholders as provided in Section 8 below shall be subject to receipt of that
ratification. The number of shares purchasable under each option and all other
terms and conditions of the option shall be as determined by the Board of
Directors, provided that, unless this Plan is validly amended as provided in
Section 9 below, in the case of any inconsistency between this Plan and the
terms and conditions of any option, the provisions of this Plan shall prevail.
As soon as practicable after the grant of an option under the Plan, the
Corporation and the non-employee director shall enter into a Stock Option
Agreement evidencing the option so granted and its terms and conditions. That
agreement shall be in such form, consistent with the Plan, as the Board shall
deem appropriate.
SECTION 5. EXERCISE AND TERM OF OPTIONS.
(a) Options granted under the Plan shall be exercisable as
provided in the terms of the option grant and the related Stock Option
Agreement.
(b) The option exercise price of the shares of Common Stock
subject to options shall be 100% of the market value of the shares on the day
the option is granted. The option price will be subject to adjustment in
accordance with the provisions of Section 7 of this Plan. For purposes of this
Plan, the market value of a share of Common Stock on any day shall be the
closing price of such a share on that day on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or, if there is no such
price on that day, the closing price of such a share on NASDAQ on the last
preceding day on which there was such a price, except that, if the Board
determines that NASDAQ is not the principal trading market system for the
Corporation's Common Stock, then the market value shall be the reported closing
price of the Common Stock on such other market system or exchange as the Board
determines is then the principal trading market for shares of the Corporation's
Common Stock.
(c) Options granted under the Plan shall have a term of up to
ten years from the date of the granting thereof, PROVIDED, HOWEVER, THAT EACH
OPTION SHALL AUTOMATICALLY TERMINATE AT THE CLOSE OF BUSINESS ON THE 210TH day
after the day on which the non-employee director ceases to be a director of the
Corporation and if that day is not a regular business day at the Corporation's
principal office, then at the close of business of the next such regular
business day.
(d) Options granted under this Plan shall not be transferable
by the non-employee director otherwise than by will, or if he or she dies
intestate, by the laws of descent and distribution of the state of domicile at
the time of death, and options shall be exercisable during the director's
lifetime only by the director.
SECTION 6. MANNER OF EXERCISE OF OPTION. Options granted hereunder
shall be exercised by the directors or the director's executor or administrator
("optionee") delivering to the Corporation, from time to time within the time
limits specified in Section 6 hereof, a written notice specifying the number of
shares the optionee then desires to purchase together with (i) cash, check or
wire transfer payable in United States currency to the order of the Corporation
for an amount equal to the option price for the shares being purchased, or (ii)
shares of the Corporation's Common Stock owned by the optionee duly endorsed to
the order of the Corporation, the value of which will be deemed equal to the
closing market price of such shares on the date of exercise, or (iii) any
combination of the foregoing, and such other instruments or agreements duly
signed by the optionee as in the opinion of counsel for the Corporation may be
necessary or advisable in order that the issuance of such number of shares
comply with applicable rules and regulations under the Securities Act of 1933,
any appropriate state securities laws or any applicable requirement of any
national stock exchange or quotation or market system on which the shares of
Common Stock may then be traded. As soon as practicable after any such exercise
of the option in whole or in part by the optionee, the Corporation will deliver
to the optionee at the principal offices of the Corporation, a certificate for
the number of shares with respect to which the option shall have been so
exercised, issued in the optionee's name. The stock certificate shall carry such
appropriate legend, and such written instructions shall be given to the
Corporation's transfer agent, as may be deemed necessary or advisable by counsel
to the Corporation in order to comply with the requirements of the Securities
Act of 1933 or any state securities laws.
SECTION 7. ADJUSTMENT OF NUMBER OF SHARES. If a dividend or stock split
shall hereinafter be declared upon the Common Stock of the Corporation payable
in shares of Common Stock of the Corporation, then the number of shares of
Common Stock then subject to any outstanding option under the Plan, the number
of shares reserved for issuance under those outstanding options, and the number
of shares reserved for issuance pursuant to the Plan but not yet covered by an
option shall be adjusted by adding to each such share the number of shares which
would be distributable thereon if the share had been outstanding on the date
fixed for determining the Shareholders entitled to receive the stock dividend or
stock split. If the outstanding shares of the Common Stock of the Corporation
shall be changed into or exchanged for a different number or kind of shares of
stock or other securities of the Corporation whether through reorganization,
recapitalization or reclassification, then there shall be substituted for each
share of Common Stock subject to any outstanding option under the Plan and for
each share of Common Stock reserved for issuance pursuant to the Plan but not
yet covered by an option, the number and kind of shares of stock or other
securities into which each outstanding share of Common Stock shall be so changed
or for which each such share shall be exchanged.
If, prior to the delivery by the Corporation of all the shares in
respect of which an option has been granted hereunder, a merger, consolidation,
or dissolution in which the Corporation is not the surviving corporation shall
occur or a transfer of substantially all the assets of the Corporation shall
occur:
(a) If provision has been made in writing in connection with
the transaction for the assumption and continuance of any such option granted,
or the substitution for such option of a new option covering the shares of the
successor corporation, with appropriate adjustment as to number and kind of
shares and prices, the option granted, or the new option substituted therefor,
as the case may be, shall continue in the manner and under the terms provided.
(b) If provision has not been made in the transaction for the
continuance and assumption of an option granted hereunder or for the
substitution of an option covering the shares of the successor corporation, then
the holder of an option granted hereunder shall be entitled, prior to the
effective date of any the transaction, to purchase the full number of shares
under the option, failing which purchase, any unexercised portion shall be
deemed canceled as of the effective transaction date.
If there is any change, other than as specified above in this
Section 7, in the number or kind of outstanding shares of Common Stock of the
Corporation or of any stock or other securities into which the Common Stock has
been changed or for which it has been exchanged, then appropriate adjustment
shall be made in the number and kind of shares subject to and reserved for
issuance pursuant to this Plan and as to which outstanding options or portions
then unexercised shall be exercisable, to the end that the proportionate
interest of the holder of an option and a prospective holder, with respect to
options theretofore granted and to be granted, shall be maintained as before the
occurrence of the change or exchange. In the case of any such substitution or
adjustment as provided for in this Section, the option price for each share
covered thereby prior to such substitution or adjustment will be the option
price for all shares of stock or other securities which shall have been
substituted for the share or to which the share has been adjusted pursuant to
this Section. No adjustment or substitution provided for in this Section 7 shall
require the Corporation to sell a fractional share, and the total substitution
or adjustment with respect to each option shall be limited accordingly.
SECTION 8. EFFECTIVE DATE AND DURATION OF STOCK PLAN. The effective
date of the Plan shall be September 4, 1998, the date of its adoption by the
Board. The duration of the Plan shall be ten years from the effective date. The
Plan and all options granted hereunder prior to the Corporation's 1999 annual
meeting of shareholders shall be subject to ratification by shareholders at that
or any prior meeting.
SECTION 9. AMENDMENT OF THE PLAN. The Board shall have the right to
amend, suspend, or terminate this Plan at any time, except that shareholder
approval shall be required for any amendment which:
(a) increases the maximum number of shares subject to the Plan
(subject to Section 7 above);
(b) changes the provisions of the Plan regarding the determination
of the option exercise price (subject to Section 7 above);
(c) changes the maximum period during which any options may be
granted or remain outstanding; or
(d) changes the requirements as to the class of persons eligible
to receive options.
Termination or suspension of the Plan or any amendment of it shall not, without
the consent of a holder of an outstanding option issued under the Plan, affect
the holder's rights under that option.
Exhibit 5
Nixon Peabody LLP
Attorneys and Counselors at Law
Clinton Square, Post Office Box 1051
Rochester, New York 14603-1051
Phone: (716) 263-1000, Fax: (716) 263-1600
November 18, 1999
Detection Systems, Inc.
130 Perinton Parkway
Fairport, New York 14450
Gentlemen:
We have acted as counsel to Detection Systems, Inc. (the "Company") in
connection with the Registration Statement on form S-8 filed by the Company with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act"), relating to the issuance of up to 50,000 shares of Common
Stock of the Company, par value $.05 per share, pursuant to the Company's
Non-Employee Director Stock Option Plan (the "Plan").
We have examined the originals or copies, certified or otherwise
identified to our satisfaction, of all such records of the Company and all such
agreements, certificates of public officials, certificates of officers or other
representatives of the Company, and such other documents, certificates and other
corporate records as we have deemed necessary or appropriate as a basis for the
opinions set forth herein, including (i) the Certificate of Incorporation of the
Company, as amended to the date hereof, (ii) the By-laws of the Company, as
amended to the date hereof, (iii) copies of certain resolutions duly adopted by
the Board of Directors and shareholders of the Company and (iv) the Plan.
Based upon and subject to the foregoing, and after (a) the above-referenced
Registration Statement becomes effective with the Securities and Exchange
Commission under the Act and assuming that such effectiveness remains in effect
throughout the period during which shares of Common Stock are offered and sold
pursuant to the Plan, (b) the shares of Common Stock to be offered and sold
pursuant to the Plan have, if required, been duly qualified or registered, as
the case may be, for sale under applicable state securities laws and all
applicable securities laws are complied with, (c) all necessary action by the
Board of Directors or Compensation Committee of the Board of Directors of the
Company shall have been taken to duly authorize the offer, issuance and sale of
Common Stock to be offered and sold pursuant to the Plan, and (d) the shares of
Common Stock to be offered and sold pursuant to the Plan have been delivered
pursuant to and in accordance with the terms of the Plan and related agreements
and instruments, we are of the opinion that the 50,000 shares of Common Stock to
be offered and sold pursuant to the Plan will have been duly authorized, validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission
thereunder.
This opinion is intended solely for your benefit in connection with the
transactions described above and, except as provided in the immediately
preceding paragraph, may not be otherwise communicated to, reproduced, filed
publicly or relied upon by, any other person or entity for any other purpose
without our express prior written consent. This opinion is limited to the
matters stated herein, and no opinion or belief is implied or may be inferred
beyond the matters expressly stated herein. The opinions expressed herein are
rendered as of the date hereof, and we disclaim any undertaking to advise you of
changes in law or fact which may affect the continued correctness of any of our
opinions as of a later date.
Very truly yours,
/s/ Nixon Peabody LLP
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 24, 1999, relating to the
consolidated financial statements of Detection Systems, Inc., which appears as
Exhibit 13 of the Detection Systems, Inc. Form 10-K for the year ended March 31,
1999.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Rochester, New York
November 18, 1999
