3
As filed with the Securities and Exchange Commission on October 18, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DIAGNOSTIC/RETRIEVAL SYSTEMS, INC.
(exact name of registrant as specified in its charter)
Delaware 13-2632319
(State of incorporation) (IRS Employer Identification No.)
5 Sylvan Way
Parsippany, New Jersey 07054
(Address of principal executive offices) (Zip Code)
Diagnostic/Retrieval Systems, Inc. 1996 Omnibus Plan
(Full title of the plan)
Mark S. Newman
Chairman of the Board
President and CEO
5 Sylvan Way
Parsippany, NJ 07054
(201)898-1500
(Name, address and telephone number, including area code of agent for service)
Copies to:
Mark N. Kaplan, Esq.
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
(212) 735-3000
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share (1)(2)Price (2) Fee (3)
Common Stock,
par value
$.01 per share 500,000 (4) $9.875 $4,937,500 $1,496.21
(1) Estimated pursuant to paragraphs (c) and (h) of Rule 457 under the
Securities Act of 1933, as amended (the "Securities Act"), on the basis of
the average of the high and low sale prices for a share of Common Stock on
the American Stock Exchange on October 11, 1996.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The registration fee has been calculated pursuant to Section 6(b) of the
Securities Act as follows: one-thirty-third of one percent of $4,937,500, the
Proposed Maximum Offering Price per Share.
(4) Plus such additional number of shares of Common Stock as may be
issuable pursuant to the antidilution provision of the 1996 Omnibus Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents By Reference
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the registrant, Diagnostic/Retrieval Systems, Inc., a
Delaware corporation (the "Company"), pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are incorporated by reference in this
registration statement.
(1) the Company's Annual Report on Form 10-K for the fiscal year ended
March 31, 1996 (Commission File No. 1-8533);
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1996 (Commission File No. 1-8533); and
(3) The description of the common stock, par value $.01 per share, of the
Company (the "Common Stock") set forth as Item 1 under caption "Description of
Registrant's Securities to be Registered" in the Company's Registration
Statement on Form 8-A, filed pursuant to Section 12(b) of the Exchange Act on
March 21, 1996, as amended by Amendment No. 1 thereto, dated March 27, 1996,
filed on March 28, 1996 and declared effective by the Commission on April 1,
1996, including any amendment or report filed for the purpose of updated such
information.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15 (d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified to superseded, to constitute a part
of this registration statement.
Item 4. Description of Securities
Not Applicable
Item 5. Interests of Named Experts and Counsel
Certain legal matters with respect to the offering of the shares of Common
Stock registered hereby have been passed upon for the Company by Skadden, Arps,
Slate, Meagher & Flom, 919 Third Avenue, New York, New York 10022. Mark N.
Kaplan, a member of Skadden, Arps, Slate, Meagher & Flom, is a director and
stockholder of the Company.
The consolidated financial statements and consolidated financial statement
schedule of the Company as of March 31, 1996 and 1995, and for each of the years
in the three-year period ended March 31, 1996, have been incorporated by
reference in the Registration Statement in reliance upon the reports of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of Delaware (the "GCL") permits
indemnification of directors, officers and employees of a corporation against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement of litigation under certain conditions and subject to certain
limitations. Article Nine of the Amended and Restated Certificate of
Incorporation of the Company empowers the Company to indemnify its directors,
officers, employees and agents to the extent and under the circumstances
permitted by the GCL. The Company's 1996 Omnibus Plan specifically provides
that to the fullest extent permitted by law, all members of the committee
administering the 1996 Omnibus Plan will be indemnified against any liabilities,
damages, costs and expenses (including attorney's fees and amounts paid in
settlement of a claim approved by the Company), occasioned by such member's
occupying or having occupied a position on such committee or otherwise in
connection with the administration of the 1996 Omnibus Plan. In addition, the
Company maintains liability insurance coverage applicable in certain situations
where the Company cannot pursuant to the GCL directly indemnify such directors
and officers.
Item 7. Exemption From Registration Claimed
Not Applicable
Item 8. Exhibits
Exhibit No. Description of Exhibit
4.1 Amended and Restated Certificate of Incorporation of the Company,
as filed in Delaware on April 1, 1996 is hereby incorporated by
reference (Registration Statement No. 33-64641, Post-Effective
Amendment No. 1, Exhibit 3.4).
4.2 Form of Advance Notice By-Laws of the Company is hereby
incorporated by reference (Quarterly Report on Form 10-Q,
quarter ended December 31, 1995, File No. 1-8533, Exhibit 3).
4.3 Amended and Restated By-Laws of the Company, as of April 1, 1996
is hereby incorporated by reference (Registration Statement No.
33-64641, Post-Effective Amendment No. 1, Exhibit 3.8).
4.4 Indenture, dated as of September 22, 1995, between the Company
and The Trust Company of New Jersey, as Trustee, in respect of
the Company's 9% Senior Subordinated Convertible Debentures Due
2003 is hereby incorporated by reference (Registration Statement
No. 33-64641, Amendment No. 1, Exhibit 4.1).
4.5 Registration Rights Agreement, dated as of September 22, 1995
between the Company and Forum Capital Markets L.P. is hereby
incorporated by reference (Registration Statement No. 33-
64641, Amendment No. 1, Exhibit 4.3).
4.6 Indenture, dated as of August 1, 1983, between the Company and
Bankers Trust Company, as Trustee, is hereby incorporated by
reference (Quarterly Report on Form 10-Q, quarter ended
September 30, 1983, Exhibit 4.2 (Commission File No. 1-8533)).
4.7 Indenture of Trust, dated December 1, 1991, among Suffolk County
Industrial Development Agency, Manufacturers and Traders Trust
Company, as Trustee and certain bondholders is hereby incorp-
orated by reference (Form 10-K, fiscal year ended March 31, 1992,
File No 1-8533, Exhibit 4.2).
4.8 Registration Rights Agreement, dated as of March 27, 1996, by and
between the Company and Palisade Capital Management L.L.C.,
acting as investment adviser to the accounts named therein is
hereby incorporated by reference (Registration Statement No. 33-
64641, Post-Effective Amendment No. 1, Exhibit 4.7).
4.9 First Supplemental Indenture, dated as of April 1, 1996, to
Indenture, dated as of September 22, 1995, between the
Company and The Trust Company of New Jersey, as Trustee is
hereby incorporated by reference (Registration Statement No. 33-
64641, Post-Effective Amendment No. 1, Exhibit 4.8).
4.10 First Supplemental Indenture, dated as of April 1, 1996, to
Indenture, dated as of August 1, 1983, between the Company
and Bankers Trust Company, as Trustee is hereby incorporated
by reference (Registration Statement No. 33-04929, Exhibit 4.9).
4.11 Form of certificate for the Company's Common Stock, par value
$.01 per share (filed herewith).
5.1 Opinion of Skadden, Arps, Slate, Meagher, & Flom.
23.1 Consent of Skadden, Arps, Slate, Meagher & Flom (filed herewith
and included in Exhibit 5.1 hereto).
23.2 Consent of KPMG Peat Marwick LLP, independent auditors.
24 Powers of Attorney (included on page 7 of this registration
statement).
99.1 1996 Omnibus Plan.
99.2 Form of stock option agreement relating to options granted under
the 1996 Omnibus Plan.
Item 9. Required Undertakings.
The undersigned registrant hereby undertakes:
(a)(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, represents 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 of 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
registration statement is on Form S-3 or Form S-8 and 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 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 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 that 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
person 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 the 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 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 Township of Parsippany-Troy Hills, State of New Jersey, on
this 18th day of October, 1996.
DIAGNOSTIC/RETRIEVAL SYSTEMS, INC.
(Registrant)
By: /s/ Mark S. Newman
Mark S. Newman
Chief Executive Officer
KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mark S. Newman and Nancy R. Pitek,
jointly and severally, their attorneys-in-fact, each with the power of
substitution, for them in any and all capacities, to sign any amendments to this
registration statement (including post-effective amendments), and to file the
same, with Securities and Exchange Commission, hereby ratifying and confirming
all that each of said attorneys-in-fact, or his substitute or substitutes, may
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 date indicated.
Name Title Date
/s/ Mark S. Newman Chairman of the Board, October 18, 1996
Mark S. Newman Chief Executive Officer,
and Director
/s/ Nancy R. Pitek Vice President, Finance October 18, 1996
Nancy R. Pitek Treasurer and Secretary
(Principal Financial Officer
and Principal Accounting Officer)
/s/ Stuart F. Platt Director October 18, 1996
Stuart F. Platt
/s/ Theodore Cohn Director October 18, 1996
Theodore Cohn
/s/ Donald C. Fraser Director October 18, 1996
Donald C. Fraser
/s/ Mark N. Kaplan Director October 18, 1996
Mark N. Kaplan
/s/ Leonard Newman Director October 18, 1996
Leonard Newman
/s/ Jack Rachleff Director October 18, 1996
Jack Rachleff
EXHIBIT INDEX
Exhibit No. Description of Exhibit
4.1 Amended and Restated Certificate of Incorporation of the Company,
as filed in Delaware on April 1, 1996 is hereby incorporated by
reference (Registration Statement No. 33-64641, Post-Effective
Amendment No. 1, Exhibit 3.4).
4.2 Form of Advance Notice By-Laws of the Company is hereby
incorporated by reference (Quarterly Report on Form 10-Q,
quarter ended December 31, 1995, File No. 1-8533, Exhibit 3).
4.3 Amended and Restated By-Laws of the Company, as of April 1, 1996
is hereby incorporated by reference (Registration Statement No.
33-64641, Post-Effective Amendment No. 1, Exhibit 3.8).
4.4 Indenture, dated as of September 22, 1995, between the Company
and The Trust Company of New Jersey, as Trustee, in respect of
the Company's 9% Senior Subordinated Convertible Debentures Due
2003 is hereby incorporated by reference (Registration Statement
No. 33-64641, Amendment No. 1, Exhibit 4.1).
4.5 Registration Rights Agreement, dated as of September 22, 1995
between the Company and Forum Capital Markets L.P. is hereby
incorporated by reference (Registration Statement No. 33-
64641, Amendment No. 1, Exhibit 4.3).
4.6 Indenture, dated as of August 1, 1983, between the Company and
Bankers Trust Company, as Trustee, is hereby incorporated by
reference (Quarterly Report on Form 10-Q, quarter ended
September 30, 1983, Exhibit 4.2 (Commission File No. 1-8533)).
4.7 Indenture of Trust, dated December 1, 1991, among Suffolk County
Industrial Development Agency, Manufacturers and Traders Trust
Company, as Trustee and certain bondholders is hereby incorporated
by reference (Form 10-K, fiscal year ended March 31, 1992, File No
1-8533, Exhibit 4.2).
4.8 Registration Rights Agreement, dated as of March 27, 1996, by and
between the Company and Palisade Capital Management L.L.C.,
acting as investment adviser to the accounts named therein is
hereby incorporated by reference (Registration Statement No. 33-
64641, Post-Effective Amendment No. 1, Exhibit 4.7)
4.9 First Supplemental Indenture, dated as of April 1, 1996, to
Indenture, dated as of September 22, 1995, between the
Company and The Trust Company of New Jersey, as Trustee is
hereby incorporated by reference (Registration Statement No. 33-
64641, Post-Effective Amendment No. 1, Exhibit 4.8).
4.10 First Supplemental Indenture, dated as of April 1, 1996, to
Indenture, dated as of August 1, 1983, between the Company
and Bankers Trust Company, as Trustee is hereby incorporated
by reference (Registration Statement No. 33-04929, Exhibit 4.9).
4.11 Form of certificate for the Company's Common Stock, par value
$.01 per share (filed herewith).
5.1 Opinion of Skadden, Arps, Slate, Meagher, & Flom.
23.1 Consent of Skadden, Arps, Slate, Meagher & Flom (filed herewith
and included in Exhibit 5.1 hereto).
23.2 Consent of KPMG Peat Marwick LLP, independent auditors.
24 Powers of Attorney (included on page 7 of this registration
statement).
99.1 1996 Omnibus Plan.
99.2 Form of stock option agreement relating to options granted under
the 1996 Omnibus Plan.
October 10, 1996
Diagnostic/Retrieval Systems, Inc.
5 Sylvan Way
Parsippany, New Jersey 07054
Gentlemen:
We have acted as special counsel to Diagnos tic/Retrieval Systems,
Inc., a Delaware corporation (the "Company"), in connection with the preparation
of a registration statement on Form S-8, which is being filed by the Company
with the Securities and Exchange Commis sion (the "Commission") on the date
hereof (the "Registra tion Statement"), relating to 500,000 shares (the
"Shares") of common stock, par value $.01 per share, of the Company (the "Common
Stock"), issuable pursuant to the Diagnostic/Retrieval Systems, Inc. 1996
Omnibus Plan (the "Option Plan").
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the
"Act").
In connection with this opinion, we have exam ined and are familiar
with originals or copies, certified or otherwise identified to our satisfaction,
of (i) the Registration Statement; (ii) the Option Plan; (iii) the Company's
Amended and Restated Certificate of Incorpora tion as in effect on the date
hereof; (iv) the Company's By-laws as in effect on the date hereof; (v)
resolutions of the Board of Directors of the Company relating to, among other
things, the Shares, the Option Plan and the Registration Statement; (vi)
resolutions of the stockhold ers of the Company relating to the Option Plan;
(vii) a specimen certificate evidencing the Common Stock; and (viii) such other
documents as we have deemed necessary or appropriate as a basis for the opinions
set forth below. In our examination, we have assumed, and have not
independently verified, the legal capacity of all natural persons, the
genuineness of all signatures, the authen ticity of all documents submitted to
us as originals, the conformity to original documents of all documents submit
ted to us as certified, conformed or photostatic copies and the authenticity of
the originals of such latter docu ments. In making our examination of documents
executed by parties other than the Company, we have assumed that such parties
had the power, corporate or other, to enter
into and perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution and
delivery by such parties of such documents and the validity, binding effect and
enforceability thereof. As to any facts mate rial to the opinions expressed
herein which were not inde pendently established or verified, we have relied
upon statements and representations of officers and other representatives of the
Company and others.
Mark N. Kaplan, a partner of this firm, is a director of the Company
and owner of 1,000 shares of the Common Stock of the Company.
Members of our firm are admitted to the Bar in the State of Delaware,
and we express no opinion as to the laws of any other jurisdiction.
Based upon and subject to the foregoing, we are of the opinion that
the issuance of the Shares has been duly authorized by requisite corporate
action by the Company and, assuming the conformity of the certificates
representing the Shares to the form of specimen thereof examined by us and the
due execution and delivery of such certificates, the Shares, when issued,
delivered and paid for in accordance with the terms and conditions of the Option
Plan, 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 thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Diagnostic/Retrieval Systems, Inc.:
We consent to the use of our reports dated May 17, 1996 on the
consolidated financial statements and related schedule of
Diagnostic/Retrieval Systems, Inc. and subsidiaries as of March
31, 1996 and 1995, and for each of the years in the three-year
period ended March 31, 1996, which reports appear or are
incorporated by reference in the March 31, 1996 Annual Report on
Form 10-K of Diagnostic/Retrieval Systems, Inc., incorporated
herein by reference and to the reference to our firm under the
heading "Interests of Named Experts and Counsel" in the
registration statement.
KPMG Peat Marwick LLP
Short Hills, New Jersey
October 18, 1996
Diagnostic/Retrieval Systems, Inc.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS
THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS.
SUCH REQUEST MAY BE MADE TO THE CORPORATION OR THE TRANSFER AGENT.
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right of survivorship and not as tenants in common
UNIF GIFT MIN ACT Custodian
(Cust) (Minor)
under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
For value received, hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated
THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON
THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER. NOTICE:
Signature(s) Guaranteed:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE
17Ad-15.
Diagnostic/Retrieval Systems, Inc.
DRS
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON STOCK
SEE REVERSE FOR
CERTAIN DEFINITIONS
CUSIP 252456 40 5
This Certifies that
is the owner of
Fully Paid and Non-Assessable Shares of the COMMON Stock of the par value of
one cent ($.01) each of
Diagnostic/Retrieval Systems, Inc.
transferable on the books of the Corporation by the holder hereof, in person
or by duly authorized attorney, upon surrender of this Certificate properly
endorsed. This Certificate is not valid unless countersigned by the Transfer
Agent.
IN WITNESS WHEREOF the Corporation has caused this Certificate to be signed by
the facsimile signatures of its duly authorized officers and a facsimile of its
corporate seal to be hereunto affixed.
Dated:
COUNTERSIGNED AND REGISTERED:
THE TRUST COMPANY OF NEW JERSEY,
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED OFFICER
CHAIRMAN OF THE BOARD, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
CONTROLLER, TREASURER AND SECRETARY
