<PAGE>
As Filed with the Securities and Exchange Commission on January 4, 1999
Registration No.333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
IRVINE SENSORS CORPORATION
(Name of registrant as specified in its charter)
Delaware 33-0280334
(State or other jurisdiction of (IRS Employer
incorporation or jurisdiction) Identification No.)
----------------------
3001 Redhill Avenue, Costa Mesa, California 92626
(Address of registrant's principal executive offices)
----------------------
1999 Stock Option Plan
(Full Title of Plan)
----------------------
James D. Evert, Chief Executive Officer
Irvine Sensors Corporation
3001 Redhill Avenue, Building III
Costa Mesa, California 92626
(Name and address of agent for service of process)
(714) 549-8211
(Telephone number, including area code, of agent for service)
With Copy To:
Debra K. Weiner
Grover T. Wickersham, P.C.
430 Cambridge Avenue, Suite 100
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
offering price aggregate
Title of securities Amount to be per offering Amount of
to be registered registered share(1) price(1) registration fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value (2) 814,462 $1.58724 $1,292,746 $ 341.28
- --------------------------------------------------------------------------------------------------------
Common Stock, $0.01 par value (3) 185,538 $2.08595 $ 387,023 $ 102.17
- --------------------------------------------------------------------------------------------------------
Total 1,000,000 $ 443.45
========================================================================================================
(Footnotes can be found on the following page.)
</TABLE>
- ---------------------
(1) Estimated solely for the purpose of determining the registration fee.
(2) Issuable upon exercise of stock options granted under the Registrant's 1999
Stock Option Plan. In accordance with Rule 457(c) and (h), the proposed
maximum offering price per share and proposed maximum aggregate offering
price have been calculated based on the weighted average exercise price of
outstanding options, which range from $1.3438 to $1.9219. For purposes of
this calculation, $1.58724 has been used for all outstanding options.
(3) Issuable upon exercise of stock options available for grant under the
Registrant's 1999 Stock Option Plan. In accordance with Rule 457(c) and
(h), the proposed maximum offering price per share and proposed maximum
aggregate offering price have been calculated based upon the average of the
high and low sale price of the Common Stock on December 31, 1999, as
reported on the Nasdaq SmallCap Market/SM/.
(4) Pursuant to Rule 416(a), also covers additional securities that may be
offered as a result of stock splits, stock dividends or similar
transactions.
This Registration Statement on Form S-8 is filed by Irvine Sensors
Corporation, a Delaware corporation (the "Company" or the Registrant"), relating
to 1,000,000 shares of its common stock, par value $0.01 per share (the "Common
Stock") issuable to eligible employees, officers, directors and consultants of
the Company under the Irvine Sensors Corporation 1999 Stock Option Plan (the
"Plan").
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(a) Irvine Sensors Corporation's Annual Report on Form 10-K for the fiscal
year ended October 3, 1999.
(b) The description of Irvine Sensors Corporation's Common Stock, $0.01 par
value, contained in its Registration Statement on Form 8-A, filed with the
Commission pursuant to Section 12(g) of the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities registered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed 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.
<PAGE>
Item 6. Indemnification of Directors and Officers and Limitation of Liability
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act.
As permitted by Section 145 of the Delaware General Corporation Law, Irvine
Sensors Corporation's Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors for monetary damages for
breach of fiduciary duty as a director, except for liability:
. for any breach of the director's duty of loyalty to Irvine Sensors
Corporation or its stockholders,
. for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
. under Section 174 of the Delaware General Corporation Law (regarding
unlawful dividends and stock purchases); and
. for any transaction from which the director derived an improper
personal benefit.
As permitted by the Delaware General Corporation Law, Irvine Sensors
Corporation's By-laws provide that:
. Irvine Sensors Corporation is required to indemnify its directors
and officers to the fullest extent permitted by the Delaware General
Corporation Law, subject to certain very limited exceptions;
. Irvine Sensors Corporation may indemnify its other employees and
agents as set forth in the Delaware General Corporation Law;
. Irvine Sensors Corporation is required to advance expenses, as
incurred, to its directors and officers in connection with a legal
proceeding to the fullest extent permitted by the Delaware General
Corporation Law, subject to certain very limited exceptions; and
. the rights conferred in the By-laws are not exclusive.
Irvine Sensors Corporation has entered into Indemnity Agreements with each
of its current directors and officers to give such directors and officers
additional contractual assurances regarding the scope of the indemnification set
forth in Irvine Sensors Corporation's Certificate of Incorporation and to
provide additional procedural protections. At present, there is no pending
<PAGE>
litigation or proceeding involving a director, officer or employee of Irvine
Sensors Corporation regarding which indemnification is sought, nor is Registrant
aware of any threatened litigation that may result in claims for
indemnification.
See also the undertakings set out in response to Item 9.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
<TABLE>
<CAPTION>
Item Number Description of Item
----------- -------------------
<S> <C>
5.1 Opinion of Grover T. Wickersham, P.C.
23.1 Consent of Grant Thornton LLP, Independent Certified Public
Accountants
23.2 Consent of PricewaterhouseCoopers LLP, Independent Auditors
23.3 Consent of Grover T. Wickersham, P.C. (filed as part of
Exhibit 5.1)
25.1 Power of Attorney (see page II-5)
99.1 1999 Stock Option Plan(1)
</TABLE>
(1) Incorporated by reference from Irvine Sensors Corporation's Pre-effective
Amendment No. 1 to its Registration Statement on Form S-1, filed with the
Securities and Exchange Commission on October 20, 1999. See Exhibit 10.10
of that Registration Statement.
Item 9. Undertakings
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:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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;
and
<PAGE>
(c) 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 p paragraphs (1)(a) and (1)(b) above 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 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.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of 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 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.
(5) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
Registrant pursuant to the provisions discussed in Item 6 hereof, or otherwise,
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 Registrant of expenses
incurred or paid by a director, officer or controlling person of 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 hereby, 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
In accordance with the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Costa Mesa, California, on December 31, 1999.
IRVINE SENSORS CORPORATION
By: /s/ JAMES D. EVERT
____________________________________
James D. Evert
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints James D. Evert and John J. Stuart, Jr.,
and each of them, his attorneys-in-fact and agents, each with full power of
substitution, for him/her and in his/her name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement on Form
S-8, and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
with this Registration Statement, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that any of
said attorneys-in-fact and agents, 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, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
/s/ JAMES D. EVERT
______________________ President, Chief Executive Officer December 31, 1999
James D. Evert and Director (Principal
Executive Officer)
/s/ JOHN J. STUART, JR.
_______________________ Senior Vice President and
John J. Stuart, Jr. Chief Financial Officer
(Principal Financial and
Accounting Officer) December 31, 1999
<PAGE>
/s/ JAMES ALEXIOU
____________________________ Chairman of the Board December 31, 1999
James Alexiou
/s/ JOHN C. CARSON
____________________________ Director December 31, 1999
John C. Carson
/s/ JOANNE S. CARSON
____________________________ Director December 31, 1999
Joanne S. Carson
/s/ MARC DUMONT
____________________________ Director December 31, 1999
Marc Dumont
/s/ WALTER E. GARRIGAN
____________________________ Director December 31, 1999
Walter E. Garrigan
/s/ FRANK P. RAGANO
____________________________ Director December 31, 1999
Frank P. Ragano
/s/ WOLFGANG SEIDEL
____________________________ Director December 31, 1999
Wolfgang Seidel
/s/ Vincent F. Sollitto, JR.
____________________________ Director December 31, 1999
Vincent F. Sollitto, Jr.
<PAGE>
EXHIBIT INDEX
5.1 Opinion of Grover T. Wickersham, P.C. re legality
23.1 Consent of Grant Thornton LLP, independent certified public accountants
23.2 Consent of PricewaterhouseCoopers LLP, independent accountants
23.3 Consent of Grover T. Wickersham, P.C. (included in Exhibit
5.1, above)
25.1 Power of Attorney (included on page II-5 of the Registration Statement)
99.1 1999 Stock Option Plan(1)
__________
(1) Incorporated by reference to Exhibit 10.10 of the Registrant's Pre-
effective Amendment No. 1 to its Registration Statement on Form S-1, filed
with the Securities and Exchange Commission on October 20, 1999.
<PAGE>
Exhibit 5.1
Opinion of Grover T. Wickersham, P.C. re Legality
December 31, 1999
Irvine Sensors Corporation
3001 Redhill Boulevard, Building III
Costa Mesa, CA 92626
Re: Registration Statement on Form S-8
Gentlemen:
At your request, we have examined the Registration Statement on Form Sl-8
to be filed by you with the Securities and Exchange Commission (the "SEC") on or
about December 31, 1999 (the "Registration Statement') in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
1,000,000 shares of your common stock (the "Stock") subject to issuance by you
upon exercise of options to purchase shares of Stock granted under your 1999
Stock Option Plan (the "Plan").
In rendering this opinion, we have examined the following:
(1) your registration statement on Form S-1 (File No. 333-88385), declared
effective by the SEC on October 22, 1999, together with the exhibits filed
therewith, including without limitation the Plan;
(2) your registration statement on Form 8-A filed with the SEC in 1982;
(3) the Registration Statement, together with the exhibits filed as a part
thereof;
(4) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your minute books;
(5) your Certificate of Incorporation, as amended (the "Certificate of
Incorporation") and By-laws ("By-laws"), previously filed as exhibits to reports
or registration statements filed with the SEC;
(6) your list of option holders as of the date hereof;
(7) a Management Certificate executed by you, addressed to us and dated
even date herewith, which contains certain factual and other representations
(the "Management Certificate").
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity and completeness of all documents submitted
to us as originals, the conformity to originals and completeness of all
documents submitted to us as copies, the legal capacity of all natural persons
executing the same, the lack of any undisclosed termination, modification,
waiver or amendment to any document reviewed by us and the due authorization,
execution and delivery of all documents where due authorization, execution and
delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely upon
our examination of the documents referred to above and have assumed the current
accuracy and completeness of the information obtained from public officials and
records referred to above. We have made no independent investigation or other
attempt to verify the accuracy of any of such information or
<PAGE>
to determine the existence or non-existence of any other factual matters;
however, we are not aware of any facts that would cause us to believe that the
opinion expressed herein is not accurate.
We are admitted to practice law in the State of California, and we express
no opinion herein with respect to the application or effect of the laws of any
jurisdiction other than the existing laws of the United States of America and
the State of California and (without reference to case law or secondary sources)
the existing Delaware General Corporation Law.
In connection with our opinion expressed below, we have assumed that, at or
prior to the time of the delivery of any shares of Stock, the Registration
Statement will have been declared effective under the Securities Act of 1933, as
amended, that the registration will apply to such shares of Stock and will not
have been modified or rescinded and that there will not have occurred any change
in law affecting the validity or enforceability of such shares of Stock.
Based upon the foregoing, it is our opinion that the 1,000,000 shares of
Stock that may be issued and sold by you upon the exercise of: stock options
granted under the 1999 Stock Option Plan, when issued and sold in accordance
with the Registration Statement and the applicable Plan and stock option grant
and exercise agreements or stock purchase agreements entered into or to be
entered into thereunder, and in the manner referred to in the relevant
prospectus associated with the Registration Statement, will be validly issued,
fully paid and non-assessable.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the prospectus constituting a part thereof and any
amendments thereto. In giving this consent, we do not admit that we are within
the category of persons whose consent is required under Section 7 of the Act or
the General Rules and Regulations of the Commission.
This opinion speaks only as of its date and we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for the your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Stock and is not to be relied
upon for any other purpose.
Very truly yours,
/s/ Grover T. Wickersham P.C.
-----------------------------
Grover T. Wickersham, P.C.
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our reports dated December 21, 1999, accompanying the
consolidated financial statements of Irvine Sensors Corporation and subsidiaries
appearing in the 1999 Annual Report to Shareholders and accompanying the
schedules included in the Annual Report on Form 10-K for the fiscal year ended
October 3, 1999, which are incorporated by reference in this Registration
Statement. We consent to the incorporation by reference of said reports in this
Registration Statement of Irvine Sensors Corporation on Form S-8.
Grant Thornton LLP
Irvine, California
December 28, 1999
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 16, 1997 relating to the
financial statements, which appears in the 1999 Annual Report to Shareholders of
Irvine Sensors Corporation, which is incorporated by reference in Irvine Sensors
Corporation's Annual Report on Form 10-K for the year ended OCtober 3, 1999. We
also consent to the incorporation by reference of our report dated December 16,
1997 relating to the financial statement schedules, which appears in such Annual
Report on Form 10-K.
PricewaterhouseCoopers LLP
Costa Mesa, California
December 28, 1999
