As filed with the Securities and Exchange Commission on June 19, 1995
Registration No. 33-________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PSC INC.
(Exact name of Registrant as specified in its charter)
New York 16-0969362
(State or other jurisdiction of (IRS Employer Identification Number)
incorporation or organization)
675 Basket Road, Webster, New York 14580
(716) 265-1600
(Address, including zip code, and telephone number,
including area code, of Registrant's principal
executive office)
PSC Inc.
1995 Employee Stock Purchase Plan
(Full title of plan)
L. Michael Hone
President and Chief Executive Officer
PSC Inc.
675 Basket Road
Webster, NY 14580
Telephone: (716) 265-1600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Martin S. Weingarten, Esq.
Boylan, Brown, Code, Fowler, Vigdor & Wilson, LLP
900 Midtown Tower
Rochester, NY 14604
Page 1 of 21 Pages
Exhibit Index at Page 9
<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities to Amount to be Price Per Offering Registration
be Registered Registered (1) Share (2) Price (2) Fee
- - ------------- ------------- ---------- --------- ----------
Common Shares, 250,000 shares $13.00 $3,250,000 $1,120.69
$.01 par value
(1) The number of Common Shares to be registered may be adjusted in
accordance with the provisions of the 1995 Employee Stock Purchase Plan in the
event that, during the period the 1995 Employee Stock Purchase Plan is in
effect, there is effected any increase or decrease in the number of issued
Common Shares resulting from a subdivision or consolidation of shares or the
payment of a stock dividend or any other increase or decrease in the number of
shares or the payment of a stock dividend or any other increase or decrease in
the number of such shares effected without receipt of consideration by the
Company. Accordingly, this Registration Statement covers, in addition to the
number of Common Shares stated above, an indeterminate number of shares which by
reason of any such events may be issued in accordance with the provisions of the
1995 Employee Stock Purchase Plan.
(2) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457 under the Securities Act of 1933 and based upon the
average of the high and low sales prices as reported on the Nasdaq National
Market for the Common Shares on June 12, 1995.
<PAGE>
PART II
Information Not Required in Prospectus
Item 3. Incorporation of Documents by Reference.
PSC Inc. (the "Company") hereby incorporates by reference in this
Registration Statement the following documents:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1995.
(c) The Company's Current Report on Form 8-K dated December 21, 1994, as
amended on March 2, 1995.
(d) The description of the Company's Common Shares contained in the
Company's Registration Statement on Form 8-A filed by the Company with the
Securities and Exchange Commission on August 31, 1981.
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, as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment to this
Registration Statement 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 in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Legal matters in connection with options under the 1995 Employee Stock
Purchase Plan and the Common Shares offered thereunder will be passed upon by
Messrs. Boylan, Brown, Code, Fowler, Vigdor & Wilson, LLP, 900 Midtown Tower,
Rochester, NY 14604. Justin L. Vigdor, a partner of this firm, is a director of
the Company, and Martin S. Weingarten, counsel to this firm, is Secretary of the
Company. Members of Boylan, Brown, Code, Fowler, Vigdor & Wilson, LLP
beneficially own 14,555 Common Shares of the Company.
<PAGE>
Item 6. Indemnification of Directors and Officers
The Company's Certificate of Incorporation (the "Certificate") provides
that no director of the Company shall be liable to the Company or its
shareholders for monetary damages for any breach of fiduciary duty as a director
except that such liability is not eliminated or limited to breaches of such duty
that result (as established by a judgment or other final adjudication adverse to
the director) from acts or omissions in bad faith or in violation of Section 719
of the New York Business Corporation Law (the "BCL") or involving intentional
misconduct or a knowing violation of law or from which (as so established) such
advantage to which he was not legally entitled. Section 719 of the BCL specifies
certain corporate transactions, such as certain dividend declarations and
dispositions of assets, as unlawful. The effect of this provision of the
Certificate is to eliminate the rights of the Company and its shareholders
(through shareholders' derivative suits on behalf of the Company) to recover
monetary damages against a director for breach of a fiduciary duty of care as a
director. This provision does not limit or eliminate the rights of the Company
or any shareholder to seek non-monetary relief, such as an injunction or
rescission in the event of a breach of a director's duty of care.
Pursuant to the BCL, the Company has adopted provisions in its by-laws
which require the Company to indemnify its directors and officers to the fullest
extent permitted by New York law, as from time to time in effect. The Company
has also entered into indemnity agreements with each of its executive officers
and directors providing for such indemnification. In addition, the Company
maintains an officers' and directors' liability insurance policy insuring the
covered individuals against acts or omissions taken by such persons in their
capacities as officers or directors.
The following summary describes the principal provisions of the Company's
bylaws concerning indemnification of directors. The indemnification provided by
the by-laws is not exclusive of any other rights to which the indemnified party
may be entitled to under law.
The Company is required, to the full extent authorized or permitted by law,
to indemnify against all judgments, fines, penalties, amounts paid in settlement
and reasonable expenses incurred in connection with actual or threatened
litigation or proceeding, any person made or threatened to be made a party to
any action or proceeding by reason of the fact that he, his testator or
intestate (the "Responsible Person") (i) is or was a director or officer of the
Company, (ii) if a director or officer of the Company, is serving or served, in
any capacity, at the request of the Company, any other corporation or entity, or
(iii) if not a director or officer of the Company, is serving or served, at the
request of the Company, as a director or officer of any other corporation or
entity. The acts of the Responsible Person which were material to the cause of
action must not have been committed in bad faith or have been the result of
active and deliberate dishonesty, and the Responsible Person shall not have
gained a financial profit or other advantage to which he was not legally
entitled. If the acts of the Responsible Person fail to meet the above standard
of conduct, no indemnification will be made.
<PAGE>
The expenses incurred by an indemnified person will be advanced or
reimbursed by the Company if the person provides the Company with an undertaking
to repay the Company if he is ultimately found not to be entitled to
indemnification or if the advances exceed the indemnifications to which he is
entitled.
The by-laws establish the procedures pursuant to which the Board of
Directors will determine, if indemnification has not been ordered by a court,
whether the indemnified person has met the standard of conduct necessary for
indemnification and resolve any dispute over the reasonableness of
indemnification expenses. In addition, if the standard of conduct is met, the
Company is authorized to provide such persons rights to indemnification or
advancement of expenses in addition to those provided for in the by-laws
pursuant to a resolution of the shareholders, a resolution of directors or an
agreement providing for such indemnification.
Any repeal or amendment of the by-laws reducing the extent of the
indemnification of any person who could be a Responsible Person shall not,
without his written consent, apply to any event, act or omission occurring or
allegedly occurring prior to (i) the date of repeal or amendment if on such date
he is not serving in any capacity for which he could be a Responsible Person, or
(ii) the 30th day following delivery of a notice of repeal or amendment as to
any capacity to which he is serving on the date of such repeal or amendment
other than as director or officer of the Company, for which he could be a
Responsible Person, or (iii) the later of the 30th day following the delivery to
him of notice of such repeal or amendment or the end of the term of office, if
he is serving as a director or officer of the Company on the date of such repeal
or amendment, with respect to being a Responsible Person in such capacity. No
amendment of the BCL reducing the extent of permissible indemnification of a
Responsible Person shall be effective as to such person with respect to any
event, act or omission occurring prior to the effective date of the amendment.
Item 7. Exemption from Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
(a) Rule 415 Offering
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;
<PAGE>
(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;
(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) Incorporating Subsequent Exchange Act Documents by Reference
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) Indemnification for Liabilities arising under the Securities Act of
1933
Insofar as indemnification for liabilities arises under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the 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.
<PAGE>
SIGNATURES
Pursuant to the requirement 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 had duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Rochester, State of New York on June 15, 1995.
PSC Inc.
By: /s/ L. Michael Hone
L. Michael Hone, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints L. MICHAEL HONE and JUSTIN L. VIGDOR, or either
one of them, as true and lawful attorneys-in-fact, each with full power and
authority to act as such without the other, and with full power of substitution,
for him and in any and all capacities, to sign any amendments to this
Registration Statement, and to file, the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
the undersigned hereby ratifying and confirming all that said attorneys-in-fact,
or either of them or his substitute or substitutes, shall 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 below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ L Michael Hone Director, Chairman of the June 15, 1995
L. Michael Hone Board, President, and
Chief Executive Officer
/s/ William J. Woodard Vice President, Finance June 15, 1995
William J. Woodard and Treasurer
<PAGE>
Controller (Principal
/s/ Scott D. Deverell Accounting Officer) June 15, 1995
Scott D. Deverell
/s/ Milton P. Axelrod Director June 15, 1995
Milton P. Axelrod
/s/ Robert S. Ehrlich Director June 15, 1995
Robert S. Ehrlich
/s/ James W. Henry Director June 15, 1995
James W. Henry
/s/ Donald K. Hess Director June 15, 1995
Donald K. Hess
/s/ James O'Shea Director June 15, 1995
James O'Shea
Director June 15, 1995
Jack E. Rosenfeld
/s/ Abby R. Solomon Director June 15, 1995
Abby R. Solomon
/s/ Justin L. Vigdor Director June 15, 1995
Justin L. Vigdor
<PAGE>
EXHIBIT INDEX
Exhibit Sequentially
Number Description Numbered Page
4.1 PSC Inc. 1995 Employee Stock 11
Purchase Plan
5.1 Opinion and consent of Boylan, Brown, 20
Code, Fowler, Vigdor & Wilson, LLP,
counsel for the Registrant as to the legality
of the Common Shares being registered
24.1 Consent of Arthur Andersen LLP, 21
Independent Public Accountants
24.2 Consent of Boylan, Brown, Code, 20
Fowler, Vigdor & Wilson, LLP is
contained in their opinion filed as
Exhibit 5.1 to this Registration Statement
PSC Inc.
1995 Employee Stock Purchase Plan
Section 1. Purpose.
The PSC Inc. 1995 Employee Stock Purchase Plan (the "Plan") is designed to
provide an opportunity for the employees of PSC Inc. and its subsidiaries
(hereinafter referred to, unless the context otherwise requires, as the
"Company") to purchase Common Shares (the "Stock") of the Company through
voluntary systematic payroll deductions. It is the purpose and policy of the
Plan to provide employees with an opportunity to acquire a proprietary interest
in the economic progress of the Company and a further incentive to promote its
best interests. It is the intention of the Company to have the Plan qualify as
an "employee stock purchase plan" under Section 423 of the Internal Revenue Code
of 1986, as amended (the "Code"). The provisions of the Plan shall, accordingly,
be construed so as to extend and limit participation in a manner consistent with
the requirements of that Section of the Code.
Section 2. Definitions.
(a) "Compensation" means the base salary or wage paid to an Employee,
including commissions and overtime payments. "Compensation" shall not include
bonuses, profit sharing contributions, Company contributions to Social Security,
contributions to the Company's 401-k Profit Sharing Plan or any other retirement
plan or program, or the value of any other fringe benefits provided at the
expense of the Company.
(b) "Employee" means any person, including an officer, who is employed by
(i) the Company or (ii) any subsidiary company, 50% or more of whose voting
shares are owned directly or indirectly by the Company. A director of the
Company who is not also a full time officer is not deemed to be an employee.
(c) "Fair Market Value". For purposes of this Plan, the "fair market value"
of the Stock on a given date shall be the closing price of the Stock on the
Nasdaq National Market on such date, provided at least one sale of said Stock
took place on such exchange on such date, and, if not, then on the basis of the
closing price on the last preceding date on which at least one sale on such
exchange did occur. If the Stock of the Company is not admitted to trading on
any of the aforesaid dates for which closing prices of the Stock are to be
determined, then reference shall be made to the fair market value of the Stock
on that date, as determined on such basis as shall be established or specified
for the purpose by the Committee.
Section 3. Eligibility.
(a) Initial Eligibility. Any Employee who shall have completed 90 days'
employment and who shall be employed by the Company on the date the Employee's
participation in the Plan is to become effective, shall be eligible to
participate in offerings under the Plan which commence on or after such ninety
day period has concluded.
<PAGE>
(b) Restrictions on Participation. Any provision of the Plan to the
contrary notwithstanding, no Employee shall be granted an option to purchase
Stock in the Plan:
(i) if, immediately after the grant, such Employee would own shares, and/or
hold outstanding options to purchase stock, possessing 5% or more of the total
combined voting power or value of all classes of stock of the Company (for
purposes of this paragraph, the rules of Section 424(d) of the Code shall apply
in determining stock ownership of any Employee); or
(ii) if it would permit such Employee's rights to purchase shares under all
employee stock purchase plans of the Company to accrue at a rate which exceeds
$25,000 in fair market value of the Stock (determined at the time such rights
are granted) for each calendar year in which rights to purchase such Stock are
outstanding.
Section 4. Offerings under the Plan.
The Plan will be implemented by ten semi-annual offerings of the Company's
Stock (the "Offerings") beginning on January 1 and July 1 in each of the years
1996, 1997, 1998, 1999 and 2000 and terminating on June 30 and December 31 in
each of such years, respectively. As used in the Plan, "Offering Commencement
Date" means the January 1 or July 1, as the case may be, on which the particular
Offering begins and "Offering Termination Date" means the June 30 or December
31, as the case may be, on which the particular Offering terminates.
Participation in any Offering under the Plan shall neither limit, nor
require, participation in any other Offering except that no Employee may have
more than one authorization for payroll deduction in effect simultaneously.
Except as provided in Section 3 of the Plan, all Employees participating in an
Offering shall have the same rights and privileges to purchase Stock in the
Plan.
Section 5. Participation and Payroll Deductions.
(a) Payment for Stock. Shares of Stock purchased under the Plan will be
paid for by payroll deductions during the period beginning on the Offering
Commencement Date and ending on the Offering Termination Date ("Purchase
Period").
(b) Participation.
(i) An eligible Employee becomes a participant ("Participant") in the Plan
by completing an authorization for a payroll deduction on the form provided by
the Company ("Employee Authorization Card") and filing it with the Human
Resources Department of the Company during the enrollment period ("Enrollment
Period") prior to an Offering. Upon becoming a Participant, said Employee shall
be bound by the terms of this Plan, including any amendments hereto.
(ii) The Enrollment Period for each of the Offerings is the thirty days
prior to each Offering Commencement Date.
<PAGE>
(iii) An Employee Authorization Card shall become effective on the
Commencement Date of the first applicable Offering and shall remain in effect
for all subsequent Offerings so long as the Employee remains eligible under the
Plan and has not withdrawn from the Plan as set forth in Section 10.
(c) Payroll Deductions.
(i) At the time an Employee files an Employee Authorization Card, the
Employee shall elect to have deductions made from his pay on each payday during
the time the Employee is a Participant in an Offering at the rate of 2, 3, 4, 5,
6, 7, 8, 9 or 10% of the Compensation which the Employee is entitled to receive
on such payday ("Payroll Deduction Rate").
(ii) Payroll deductions for a Participant shall begin as of the first pay
period after an Employee Authorization Card has become effective.
(iii) All payroll deductions made for a Participant shall be credited to
the Participant's account under the Plan. Amounts credited to such accounts may
be used by the Company for any corporate purpose. A Participant may not make any
separate cash payment into such account.
(d) Change in Payroll Deduction Rate; Discontinuance of Payroll Deductions.
(i) A Participant's Payroll Deduction Rate, once established, shall remain
in effect for each Offering. A Participant may change the Payroll Deduction
Rate, at any time during the Enrollment Period prior to the beginning of the
next Offering, effective for the next Offering following the receipt of written
notice by the Company on such forms as provided by the Company.
(ii) At any time during an Offering, a Participant may notify the Company
that the Participant wishes to discontinue the Participant's payroll deductions.
This notice shall be in writing and on such forms as provided by the Company and
shall become effective as of a date not more than thirty (30) days following its
receipt by the Company.
(e) No Interest.
No interest shall accrue on any amounts withheld under this Plan.
Section 6. Granting of Option.
(a) Number of Option Shares. On the Commencement Date of each Offering, a
participating Employee shall be deemed to have been granted an option to
purchase a maximum number of shares of the Stock of the Company equal to an
amount determined as follows: an amount equal to (i) that percentage of the
Employee's Compensation which the Employee has elected to have withheld (but not
in any case in excess of 10%) multiplied by (ii) the Employee's Compensation
during the period of the Offering (iii) divided by 85% of the Fair Market Value
of the Stock of the Company on the applicable Offering Commencement Date. The
Fair Market Value of the Company's Stock shall be determined as provided in
Section 2(c) above.
<PAGE>
(b) Option Price. The option price of Stock purchased with payroll
deductions made during such Offering for a Participant therein shall be the
lower of:
(i) 85% of the Fair Market Value of the Stock on the Offering Commencement
Date; or
(ii) 85% of the Fair Market Value of the Stock on the Offering Termination
Date.
Section 7. Exercise of Option.
(a) Automatic Exercise. Unless a Participant gives written notice to the
Company as hereinafter provided, the Participant's option for the purchase of
Stock with payroll deductions made during any Offering will be deemed to have
been exercised automatically on the Offering Termination Date applicable to such
Offering, for the purchase of the number of full shares of Stock which the
accumulated payroll deductions in the Participant's account at that time will
purchase at the applicable option price (but not in excess of the number of
shares for which options have been granted to the Employee pursuant to Section
6(a), and any excess in the Participant's account at that time will be returned
to the Participant.
(b) Withdrawal of Account. By written notice to the Company, at any time
prior to the Offering Termination Date applicable to any Offering, a Participant
may elect to withdraw all the accumulated payroll deductions in the
Participant's account at such time.
(c) Fractional Shares. Fractional shares will not be issued under the
Plan and any accumulated payroll deductions which would have been used to
purchase fractional shares will be returned to any Employee promptly following
the termination of an Offering, without interest.
(d) Transferability of Option. During a Participant's lifetime, options
held by such Participant shall be exercisable only by that Participant.
(e) Delivery of Stock. As promptly as practicable after the Offering
Termination Date of each Offering, the Company will deliver to each Participant,
as appropriate, the Stock purchased upon exercise of the Participant's option.
Section 8. Withdrawal.
(a) In General. As indicated in Section 7(b), a Participant may withdraw
payroll deductions credited to the Participant's account under the Plan at any
time by giving written notice to the Company. All of the Participant's payroll
deductions credited to the Participant's account will be paid to the Participant
promptly after receipt of the notice of withdrawal, and no further payroll
deductions will be made from the Participant's pay during such Offering.
(b) Effect on Subsequent Participation. A Participant's withdrawal from any
Offering will not have any effect upon the Participant's eligibility to
participate in any succeeding Offering or in any similar plan which may
hereafter be adopted by the Company.
<PAGE>
(c) Termination of Employment. Upon termination of the Participant's
employment for any reason, including retirement (but excluding death while in
the employ of the Company), the payroll deductions credited to the Participant's
account will be returned to the Participant or, in the case of the Participant's
death subsequent to the termination of the Participant's employment, to the
person or persons entitled thereunder under Section 11(a).
(d) Termination of Employment Due to Death. Upon termination of the
Participant's employment because of the Participant's death, the Participant's
beneficiary (as defined in Section 11) shall have the right to elect, by written
notice given to the Company prior to the earlier of the Offering Termination
Date or the expiration of a period of sixty (60) days commencing with the date
of the death of the Participant, either:
(i) to withdraw all of the payroll deductions credited to the Participant's
account under the Plan, or
(ii) to exercise the Participant's option for the purchase of Stock on the
Offering Termination Date next following the date of the Participant's death for
the purchase of the number of full shares of Stock which the accumulated payroll
deductions in the Participant's account at the date of the Participant's death
will purchase at the applicable option price, and any excess in such account
will be returned to said beneficiary, without interest.
In the event that no such written notice of election shall be duly received
by the Company, the beneficiary shall automatically be deemed to have elected,
pursuant to paragraph (ii), to exercise the Participant's option.
Section 9. Stock.
(a) Maximum Shares. The maximum number of shares which shall be issued
under the Plan, subject to adjustment upon changes in capitalization of the
Company as provided in Section 11(d) shall be 250,000 shares. If the total
number of shares for which options are exercised on any Offering Termination
Date in accordance with Section 6 exceeds the number of shares then available
under the Plan, the Company shall make a pro rata allocation of the shares
available for delivery and distribution in as nearly a uniform manner as shall
be practicable and as it shall determine to be equitable, and the balance of
payroll deductions credited to the account of each Participant under the Plan
shall be returned to the Participant as promptly as possible.
(b) Participant's Interest in Option Stock. The Participant will have no
interest in Stock covered by the Participant's option until such option has been
exercised.
<PAGE>
(c) Registration of Stock. Stock to be delivered to a Participant under the
Plan will be registered in the name of the Participant, or, if the Participant
so directs by written notice to the Company prior to the Offering Termination
Date applicable thereto, in the names of the Participant and one such other
person as may be designated by the Participant, as joint tenants with rights of
survivorship or as tenants by the entireties, to the extent permitted by
applicable law.
(d) Restrictions on Exercise. The Committee may, in its discretion, require
as conditions to the exercise of any option that the shares of Stock reserved
for issuance upon the exercise of the option shall have been duly listed, upon
official notice of issuance, upon a stock exchange, and that either:
(i) A Registration Statement under the Securities Act of 1933, as amended,
with respect to said shares shall be effective, or
(ii) the Participant shall have represented at the time of purchase, in
form and substance satisfactory to the Company, that it is the Participant's
intention to purchase the shares for investment and not for resale or
distribution.
Section 10. Administration.
(a) Committee. The Compensation Committee (the "Committee") of the Board of
Directors shall administer the Plan, The Committee shall consist of no fewer
than three members of the Board of Directors. No member of the Committee shall
be eligible to purchase Stock under the Plan.
(b) Authority of Committee. Subject to the express provisions of the Plan,
the Committee shall have plenary authority in its discretion to interpret and
construe any and all provisions of the Plan, to adopt rules and regulations for
administering the Plan, and to make all other determinations deemed necessary or
advisable for administering the Plan. The Committee's determination on the
foregoing matters shall be conclusive.
(c) Rules Governing the Administration of the Committee. The Board of
Directors may from time to time appoint members of the Committee in substitution
for or in addition to members previously appointed and may fill vacancies,
however caused, in the Committee. The Committee may select one of its members as
its Chairman and shall hold its meetings at such times and places as it shall
deem advisable and may hold telephonic meetings. A majority of its members shall
constitute a quorum. All determinations of the Committee shall be made by a
majority of its members. The Committee may correct any defect or omission or
reconcile any inconsistency in the Plan, in the manner and to the extent it
shall deem desirable. Any decision or determination reduced to writing and
signed by a majority of the members of the Committee shall be as fully effective
as if it had been made by a majority vote at a meeting duly called and held. The
Committee may appoint a secretary and shall make such rules and regulations for
the conduct of its business as it shall deem advisable.
<PAGE>
(d) Indemnification of Committee. In addition to such other rights of
indemnification as they may have as directors or as members of the Committee,
under the Company's Certificate of Incorporation, By-laws, or pursuant to law or
contract, the members of the Committee shall be indemnified by the Company
against reasonable expenses, including attorneys' fees actually and necessarily
incurred in connection with any action or appeal therein, to which they or any
of them may be party by reason of any action taken or failure to act under or in
connection with the Plan or any stock option granted thereunder, and against all
amounts paid by them in settlement thereof (provided such settlement is approved
by independent legal counsel selected by the Company) or paid by them in
satisfaction of a judgment in any such action, suit or proceeding except in
relation to matters as to which it shall be adjudged in such action, suit,
proceeding that such Committee member is liable for misconduct in the
performance of his duties; provided that within 60 days after institution of any
such action, suit or proceeding a Committee member shall in writing offer the
Company the opportunity, at its own expense, to handle and defend the same.
Section 11. Miscellaneous.
(a) Designation of Beneficiary. A Participant may file a written
designation of a beneficiary who is to receive any shares and cash to the
Participant's credit under the Plan in the event of such Participant's death
prior to delivery to the Participant of such shares and cash. Such designation
of beneficiary may be changed by the Participant at any time by written notice
to the Company. Upon the death of a Participant and upon receipt by the Company
of proof of the identity and existence at the Participant's death of a
beneficiary validly designated by the Participant under the Plan, the Company
shall deliver such shares and cash to such beneficiary. In the event of the
death of a Participant and in the absence of a beneficiary validly designated
under the Plan who is living at the time of such Participant's death, the
company shall deliver such shares and cash to the executor or administrator of
the estate of the Participant, or if no such executor or administrator has been
appointed (to the knowledge of the company) the Company, in its discretion, may
deliver such shares and cash to the spouse or to any one or more dependents or
relatives of the Participant or if no spouse, dependent, or relative is known to
the Company then to such other person as the Company may designate. No
designated beneficiary shall prior to the death of the Participant by whom the
beneficiary has been designated, acquire any interest in the shares or cash
credited to the Participant under the Plan.
(b) Transferability. Neither payroll deductions credited to a Participant's
account nor any rights with regard to the exercise of an option or to receive
stock under the Plan may be assigned, transferred, pledged, or otherwise
disposed of in any way by the Participant other than by will or the laws of
descent and distribution. Any such attempted assignment, transfer, pledge or
other disposition shall be without effect, except that the Company may treat
such act as an election to withdraw funds in accordance with Section 7(b).
(c) Use of Funds. All payroll deductions received or held by the Company
under this Plan may be used by the Company for any corporate purpose and the
Company shall not be obligated to segregate such payroll deductions.
<PAGE>
(d) Adjustment Upon Changes in Capitalization.
(i) If, while any options are outstanding, the outstanding shares of Stock
of the Company have increased, decreased, changed into, or been exchanged for a
different number or kind of shares or securities of the Company through
reorganization, merger, recapitalization, reclassification, stock split, reverse
stock split or similar transaction, appropriate and proportionate adjustments
may be made by the Committee in the number and/or kind of shares which are
subject to purchase under outstanding options and on the option exercise price
or prices applicable to such outstanding options. In addition, in any such
event, the number and/or kind of shares which may be offered in the Offerings
described in Section 4 hereof shall also be proportionately adjusted.
(ii) Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or upon a sale of substantially all of the property or stock of the Company to
another corporation, the holder of each option then outstanding under the Plan
will thereafter be entitled to receive at the next Offering Termination Date
upon the exercise of such option for each share as to which such option shall be
exercised, as nearly as reasonably may be determined, the cash, securities
and/or property which a holder of one share of the Stock was entitled to receive
upon and at the time of such transaction. The Board of Directors shall take such
steps in connection with such transactions as the Board shall deem necessary to
assure that the provisions of this Section 11(d) shall thereafter be applicable,
as nearly as reasonably may be determined, in relation to the said cash,
securities and/or property as to which such holder of such option might
thereafter be entitled to receive.
(e) Amendment and Termination. The Board of Directors shall have complete
power and authority to terminate or amend the Plan; provided, however, that the
Board of Directors shall not, without the approval of the shareholders of the
Company (i) increase the maximum number of shares which may be issued under the
Plan, (ii) amend the requirements as to the class of employees eligible to
purchase Stock under the Plan or permit the members of the Committee to purchase
stock under the Plan. No termination, modification or amendment of the Plan may,
without the consent of an Employee then having an option under the Plan to
purchase Stock, adversely affect the rights of such Employee under such option.
<PAGE>
(f) No Rights as a Shareholder. No right as as a shareholder shall exist
with respect to any shares of Stock covered by stock options until the date of
the issuance of a stock certificate for such shares. No adjustment shall be made
for dividends or other rights for which the record date is prior to the date
such certificate is issued.
(g) No Employment Rights. The Plan does not, directly or indirectly, create
any right for the benefit of any Employee or class of employees to purchase any
shares under the Plan, or create in any Employee or class of employees any right
with respect to continuation of employment by the Company, and it shall not be
deemed to interfere in any way with the Company's right to terminate, or
otherwise modify, an Employee's employment at any time.
(h) Effective Date. The Plan shall become effective as of January 1, 1996,
subject to approval by a majority of the shareholders of the Company within
twelve (12) months after its adoption by the Board of Directors. If the Plan is
not approved, the Plan shall not become effective.
(i) Termination Date. This Plan shall terminate, and no further shares of
Stock shall be sold or issued hereunder, on December 31, 2000, or such earlier
date as may be determined by the Board of Directors or Committee. The
termination of this Plan, however, shall not affect any restrictions previously
imposed on the shares issued pursuant to this Plan or rights of the Company
granted pursuant to this Plan.
(j) Effect of Plan. The provisions of the Plan shall, in accordance with
its terms, be binding upon, and inure to the benefit of, all successors of each
Employee participating in the Plan, including, without limitation, such
Employee's estate and the executors, administrator or trustees thereof, heirs
and legatees, and any receiver, trustee in bankruptcy or representative of
creditors of such Employee.
(k) Governing Law. The law of the State of New York will govern all matters
relating to this Plan except to the extent it is superseded by the laws of the
United States.
Date Plan adopted by Board of Directors: November 8, 1994
Date Plan approved by Shareholders: May 3, 1995
June 19, 1995
PSC Inc.
675 Basket Road
Webster, NY 14580
RE: Registration Statement on Form S-8 (No._____________)
Gentlemen:
You have requested our opinion as counsel for PSC Inc., a New York corporation
(the "Company") in connection with the registration under the Securities Act of
1933, as amended, and the Rules and Regulations promulgated thereunder, of
250,000 common shares of the Company, $.01 par value (the "Common Stock") which
will from time to time be offered for sale pursuant to stock purchase rights
which will be granted to employees of the Company and its subsidiaries in
accordance with the Company's 1995 Employee Stock Purchase Plan (the "Plan").
We have examined the Company's Registration Statement on Form S-8 in the form to
be filed with the Securities and Exchange Commission (the "Registration
Statement"). We further have examined the Restated Certificate of Incorporation,
as amended, of the Company, the by-laws of the Company, as amended, and the
corporate proceedings taken to authorize the Plan, the issuance of stock
purchase rights under the Plan, and the issuance and sale of the Common Stock
upon exercise of such stock purchase rights.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly organized and is a validly existing
corporation under the laws of the State of New York.
2. All necessary action has been taken by the Board of Directors and
shareholders of the Company to authorize the Plan including the issuance of
stock purchase rights under the Plan and the issuance and sale of the Common
Stock upon exercise of such stock purchase rights.
3. When certificates for the Common Stock have been delivered against payment of
the purchase price therefor upon exercise of such stock purchase rights, such
Common Stock will be duly authorized and validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and we further consent to the reference made to us under
the heading "Interests of Named Experts and Counsel" in the Registration
Statement.
Very truly yours,
BOYLAN, BROWN, CODE,
FOWLER, VIGDOR & WILSON, LLP
FIRM/ls
EXHIBIT 24.1
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
January 30, 1995, included in PSC Inc.'s Form 10-K for the year ended December
31, 1994, and our report dated January 27, 1995, included in PSC Inc.'s
Form 8-K/A dated December 21, 1994.
ARTHUR ANDERSEN LLP
Rochester, New York
June 19, 1995
