As filed with the Securities and Exchange Commission on December 29, 1998
Registration No. 333-________
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.
Compensation Plan for Non-Employee Directors
(Full title of plan)
Robert C. Strandberg
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
2400 Chase Square
Rochester, NY 14604
Page 1 of 11 Pages
Exhibit Index at Page 10
<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, 50,000 shares $9.41 $470,500 $142.58
$.01 par value
(1) The number of Common Shares to be registered may be adjusted in
accordance with the provisions of the Compensation Plan for Non-Employee
Directors (the "Plan") in the event that, during the period the 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
Registrant. 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
Plan.
(2) Estimated solely for the purpose of calculating the registration
fee pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933 and
based upon the average of the high and low sales prices of the Registrant's
Common Shares as reported on the Nasdaq National Market on December 24, 1998.
<PAGE>
PART II
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by PSC Inc. (the "Registrant") are
incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997.
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended April 3, 1998, July 3, 1998, and October 2, 1998.
(c) The Registrant's Current Report on Form 8-K dated January
15, 1998.
(d) The description of the Registrant's Common Shares
contained in the Registrant's Registration Statement on Form 8-A filed by the
Registrant with the Securities and Exchange Commission on August 31, 1981.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 (such documents, and the
documents enumerated above, being hereafter referred to as "Incorporated
Documents").
Any statement contained in an Incorporated Document 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
Incorporated Document modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Inapplicable. 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 the Common Shares issuable under the
Plan will be passed upon by Messrs. Boylan, Brown, Code, Fowler, Vigdor &
Wilson, LLP, 2400 Chase Square, Rochester, NY 14604. Justin L. Vigdor, a partner
of this firm, is a director of the Registrant, and Martin S. Weingarten, counsel
to this firm, is Secretary of the Registrant. Mr. Vigdor owns and has options to
purchase Common Shares of the Registrant and is also eligible to participate in
the Plan.
<PAGE>
Item 6. Indemnification of Directors and Officers
The Registrant's Certificate of Incorporation (the "Certificate")
provides that no director of the Registrant shall be liable to the Registrant 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 Registrant and
its shareholders (through shareholders' derivative suits on behalf of the
Registrant) 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 Registrant 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 Registrant has adopted provisions in its
By-Laws which require the Registrant to indemnify its directors and officers to
the fullest extent permitted by New York law, as from time to time in effect.
The Registrant has also entered into indemnity agreements with each of its
executive officers and directors providing for such indemnification. In
addition, the Registrant 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
Registrant's By-Laws 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 Registrant 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
Registrant, (ii) if a director or officer of the Registrant, is serving or
served, in any capacity, at the request of the Registrant, any other corporation
or entity, or (iii) if not a director or officer of the Registrant, is serving
or served, at the request of the Registrant, 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 Registrant if the person provides the Registrant with an
undertaking to repay the Registrant 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
Registrant 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 Registrant, 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 Registrant 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
<PAGE>
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 (the "Securities Act");
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information
with respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement; provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
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, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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 by the Registrant for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the provisions
described in Item 6, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
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 Town of Webster, State of New York on December 28, 1998.
PSC Inc.
By: /s/ Robert C. Strandberg
Robert C. Strandberg
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints each of Robert C. Strandberg and William J.
Woodard, acting alone or together, as such person's true and lawful
attorney-in-fact and agent with full powers of substitution and revocation, for
such person and in such person's name, place, and stead, in any and all
capacities, 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 attorney-in-fact and agent, acting alone, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as such person might
or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, acting alone, 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 below by the following persons in the
capacities indicated on December 28, 1998.
Signature Title
Director, President and
Robert C. Strandberg Chief Executive Officer
Vice President, Chief Financial
William J. Woodard Officer and Treasurer
<PAGE>
Vice President, Finance
Michael J. Stachura (Principal Accounting Officer)
Director, Chairman of the Board
Robert S. Ehrlich
Director
Jay M. Eastman
Director
James W. Henry
Director
Donald K. Hess
Director
Thomas J. Morgan
Director
James C. O'Shea
Director
Jack E. Rosenfeld
Director
Justin L. Vigdor
Director
Romano Volta
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description Location
4.1 PSC Inc. Compensation Plan Incorporated by
for Non-Employee Directors reference to
Exhibit 10.3 of the
Registrant's Quarterly
Report on Form 10-Q
for the quarter ended
July 3, 1998
5.1 Opinion and consent of Boylan, *
Brown, Code, Fowler, Vigdor &
Wilson, LLP, counsel for the
Registrant as to the legality of
the Common Shares being registered
23.1 Consent of Arthur Andersen LLP, *
Independent Public Accountants
23.2 Consent of Boylan, Brown, Code, Included in Exhibit
Fowler, Vigdor & Wilson, LLP 5.1 to this Registra-
tion Statement
* Included as part of the electronic submission of this Registration
Statement.
December 29, 1998
PSC Inc.
675 Basket Road
Webster, NY 14580
Re: Registration Statement on Form S-8
for the PSC Inc. Compensation Plan for Non-Employee Directors
Ladies and Gentlemen:
We have acted as counsel to PSC Inc., a New York corporation (the
"Registrant"), in connection with the registration under the Securities Act of
1933, as amended, of 50,000 shares (the "Shares") of the Registrant's common
stock, $.01 par value per share, issuable under the PSC Inc. Compensation Plan
for Non-Employee Directors (the "Plan"). The Shares are being registered
pursuant to a Registration Statement on Form S-8 to be filed with the Securities
and Exchange Commission on or about December 29, 1998 (the "Registration
Statement").
We have examined the Certificate of Incorporation and By-Laws of the
Registrant and all amendments thereto and have examined and relied on the
originals, or copies certified to our satisfaction, of such records of meetings,
or resolutions adopted at meetings, of the directors of the Registrant and such
other documents and instruments as in our judgment are necessary or appropriate
to enable us to render the opinions expressed below.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified or photostatic copies and the authenticity of the originals
of such latter documents.
Based upon the foregoing, we are of the opinion that the Registrant has
duly authorized for issuance the Shares, and the Shares, if and when issued in
accordance with the terms of the Plan, will be legally issued, fully-paid and
nonassessable, assuming that the consideration actually received by the Company
for the Shares exceeds the par value thereof.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
BOYLAN, BROWN, CODE,
FOWLER, VIGDOR & WILSON, LLP
By: /s/ Boylan, Brown, Code, Fowler, Vigdor & Wilson LLP
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, 1998
included in PSC Inc.'s Form 10-K for the year ended December 31, 1997 and to all
references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Rochester, New York,
December 29, 1998
