As filed with the Securities and Exchange Commission on November 25, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTERFACE SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 38-1857379
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
5855 Interface Drive, Ann Arbor, Michigan 48103
(Address of principal executive offices) (zip code)
Employee Stock Purchase Plan
(Full title of the Plan)
JOHN R. TERNES
Vice President and Chief Financial Officer
Interface Systems, Inc.
5855 Interface Drive
Ann Arbor, Michigan 48103
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (313) 769-5900
Copies to:
MARGUERITE M. GRITENAS
Dykema Gossett PLLC
400 Renaissance Center
Detroit, Michigan 48243-1668
CALCULATION OF REGISTRATION FEE
Title of Proposed Maximum Proposed Maximum Amount of
Securities to Amount to be Offering Aggregate Registration
be Registered Registered Price per Share* Offering Price* Fee
- ----------------------------------------------------------------------------
Common Stock 225,000 $2.9375 $660,937.50 $200.29
- ----------------------------------------------------------------------------
* Estimated solely for purposes of computing the Registration Fee, at
$2.9375 per share, the average price for shares of the Common Stock on
November 19, 1997, as reported on the NASDAQ National Market, pursuant to
Rule 457(h).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation by Reference.
The following documents filed by Interface Systems, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission")
are incorporated in this Registration Statement by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
September 30, 1996;
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended December 31, 1996, March 31, 1997 and June
30, 1997;
(c) The Company's Report on Form 8-K dated June 24, 1997 (filed
June 28, 1997); and
(d) Description of the Company's Common Stock contained in the
Company's Registration Statement on Form 10 under the
Securities Exchange Act of 1934, as amended,
Number 0-10902.
All documents filed by the Company with the Commission pursuant to
Sections 13, 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, subsequent to the date of this Registration Statement and prior to
the termination of the offering of the Common Stock covered by this
Registration Statement shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from the date of filing
of each such document.
Item 4. Description of Securities.
Not required.
Item 5. Interests of Named Experts and Counsel.
No material interests.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
sets forth the conditions and limitations governing the indemnification of
officers, directors and other persons.
The DGCL permits Delaware corporations to limit the personal
liability of directors for a breach of their fiduciary duty. The Company's
Certificate of Incorporation, which limits liability to the maximum extent
permitted by law, provides that a director of the Company shall not be
personally liable to the Company or its stockholders for monetary damages
for breach of the director's fiduciary duty. However, it does not eliminate
or limit the liability of a director for any of the following: (i) a breach
of the director's duty of loyalty to the Company or its stockholders; (ii)
acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law; (iii) declaring an unlawful dividend, stock
purchase or redemption; and (iv) a transaction from which the director
derives an improper personal benefit. As a result of the inclusion of such
a provision, stockholders of the Company may be unable to recover monetary
damages against directors for actions taken by them which constitute
negligence or gross negligence or which are in violation of their fiduciary
duties, although it may be possible to obtain injunctive or other equitable
relief with respect to such actions.
The Company's Bylaws permit the Company to indemnify its
directors, officers, employees and agents for expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably
incurred in connection with any pending, threatened or completed action,
suit or proceeding (other than by or in the right of the Company) to which
any such person was made a party by reason of the fact that he or she was
acting in person was made a party by reason of the fact that he or she was
acting in such capacity for the Company or was serving as such for another
corporation or enterprise at the Company's request, if such person acted in
good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Company or its stockholders or, in
respect to a criminal proceeding, had no reasonable cause to believe his or
her conduct was unlawful. The Company's Bylaws also authorize the Company
to purchase and maintain insurance on behalf of any officer, director,
employee or agent of the Company against any liability asserted against or
incurred by them in such capacity or arising out of their status as such
whether or not the Company would have the power to indemnify such officer,
director, employee or agent against such liability.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed with this Registration Statement:
5 Opinion of Dykema Gossett PLLC with respect to the legality
of the Common Stock to be registered hereunder.
10.1 Interface Systems, Inc. Employee Stock Purchase Plan.
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Dykema Gossett PLLC (contained in Exhibit 5).
24 Power of Attorney (see "Signatures").
Item 9. Undertakings.
(1) The undersigned registrant hereby undertakes 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
this 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 this registration statement; (iii) to
include any material information with respect to the plan of distribution
not previously disclosed in this registration statement or any material
change to such information in this registration statement; provided,
however, that paragraphs (1)(i) and (1)(ii) do not apply if this
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 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) The undersigned registrant hereby undertakes that, for the
purpose of determining any liability under the Securities Act of 1933, each
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) The undersigned registrant hereby undertakes 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) The undersigned registrant hereby undertakes that, for the
purpose of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or 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) or 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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.
SIGNATURES
Pursuant to 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 Ann Arbor, State of
Michigan on November 21, 1997.
NTERFACE SYSTEMS, INC.
By: /s/ Robert A. Nero
Robert A. Nero
President and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned whose signature appears below hereby
constitutes and appoints Robert A. Nero, John R. Ternes and George W.
Perrett and each of them acting alone, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him or
her and in his or her 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, under the Securities Act of 1933, as amended.
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 indicated on November 21, 1997.
Title
/s/ Robert A. Nero
Robert A. Nero Director and President and Chief Executive Officer
/s/ John R. Ternes
John R. Ternes Vice President and Chief Financial Officer
(principal financial and accounting officer)
/s/ Garnel F. Graber
Garnel F. Graber Director
/s/ Bruce E. Rhoades
Bruce E. Rhoades Director
George W. Perrett Director
David O. Schupp Director
/s/ David C. Seigle
David C. Seigle Director
/s/ Robert A. Seigle
Robert A. Seigle Director
/s/ Lloyd A. Semple
Lloyd A. Semple Director
INDEX TO EXHIBITS
Exhibit
Number Exhibits
5 Opinion of Dykema Gossett PLLC with respect to the
legality of the Common Stock to be registered hereunder
10.1 Interface Systems, Inc. Employee Stock Purchase Plan.
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Dykema Gossett PLLC (contained in Exhibit 5)
24 Power of Attorney (see "Signatures")
EXHIBIT 5
November 25, 1997
Interface Systems, Inc.
5855 Interface Drive
Ann Arbor, Michigan 48103
Ladies and Gentlemen:
We have served as counsel to Interface Systems, Inc. (the "Company")
in connection with the preparation of the Registration Statement (Form S-8)
to be filed by the Company on November 25, 1997 with the Securities and
Exchange Commission under the Securities Act of 1933, as amended,
representing the issuance in the manner described in the Registration
Statement of 225,000 shares of the Company's Common Stock, $.10 par value
(the "Common Stock"), pursuant to the Interface Systems, Inc. Employee Stock
Purchase Plan.
We have examined and relied upon the originals, or copies certified
or otherwise identified to our satisfaction, of such corporate records,
documents, certificates and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion expressed below.
Based upon such examination and our participation in the preparation
of the Registration Statement, it is our opinion that (1) the Company is
duly incorporated and validly existing as a corporation in good standing
under the laws of Delaware and (2) the Common Stock, when issued in the
manner described in the Registration Statement, will be validly issued,
fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
DYKEMA GOSSETT PLLC
/s/ Marguerite M. Gritenas
Marguerite M. Gritenas
(313) 568-6503
EXHIBIT 10.1
INTERFACE SYSTEMS, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. Purpose. The purpose of the Interface Systems, Inc. Employee
Stock Purchase Plan (the "Plan") is to promote the best interests of
Interface Systems, Inc. (the "Company") and its stockholders by encouraging
employees of the Company to acquire a proprietary interest in the Company,
thus identifying their interests with those of stockholders and encouraging
the employees to make even greater efforts on behalf of the Company. The
Plan is intended to constitute an "employee stock purchase plan" under
Section 423 of the Internal Revenue Code of 1986, as amended (the "Code").
2. Certain Definitions. As used in this Plan, the term
"employee" means an individual with an "employment relationship" with the
Company as defined in Regulation 1.421-7(h) of the Income Tax Regulations;
the term "employment" means employment with the Company, the term "Purchase
Period" means a six month offering period commencing each June 1 and
December 1; and the term "compensation" means cash compensation, not
including overtime and bonuses.
3. Stock. The stock subject to option and purchase under the
Plan shall be the Common Stock of the Company (the "Common Stock") and may
be either authorized and unissued shares or shares that have been reacquired
by the Company. The total amount of Common Stock on which options may be
granted under the Plan shall not exceed 225,000 shares, subject to
adjustment in accordance with Section 12. Shares of Common Stock subject to
any unexercised portion of a terminated, canceled or expired option granted
under the Plan may again be used for option grants under the Plan.
4. Administration. The Plan shall be administered by the
Compensation Committee (the "Committee") of the Board of Directors
("Board"), comprised of nonemployee members of the Board, as defined in
Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended
("Exchange Act"). The Committee may prescribe rules and regulations from
time to time for the administration of the Plan and may decide questions
which may arise with respect to its interpretation or application. The
decisions of the Committee in interpreting the Plan shall be final,
conclusive and binding on all persons, including the Company, its employees
and optionees. In the event of insufficient shares during a Purchase
Period, the Committee shall allocate shares proportionately on the basis of
compensation.
5. Participants. (a) Except as provided in Section 6, below, any
employee who is employed by the Company on the first day of a Purchase
Period is eligible to participate in the Plan in accordance with its terms.
6. Ownership and Purchase Limitations. Notwithstanding anything
herein to the contrary, no employee shall be entitled to participate in an
offering under the Plan if such employee, immediately after a grant under
this Plan, would, in the aggregate, own or hold options to purchase shares
of Common Stock equal to or exceeding five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Company or of
its subsidiary corporations. For the foregoing purposes, the rules of
Section 424(d) of the Code shall apply in determining stock ownership. With
respect to individual employees, Section 424(d) provides that an employee
shall be considered as owning the stock owned directly or indirectly, by or
for his brothers and sisters (whether by the whole or half blood), spouse,
ancestors, and lineal descendants. No employee shall be granted an option
under the Plan which, together with options granted under all employee stock
purchase plans (qualified under Section 423 of the Code) of the Company and
its subsidiaries permits the employee to accrue option rights to purchase
shares in any calendar year in excess of $25,000 of fair market value of
such shares (determined at the time the option is granted). For purposes of
this Plan, the "grant date" shall be the first day of each Purchase Period,
as defined in Section 9(b), below. The Company's non-employee directors are
not eligible to participate in the Plan.
7. Option Price. The option price of the shares shall be the
lower of 85% the fair market value of the Common Stock on first day of the
Purchase Period or 85% of the fair market value of the Common Stock on the
last day of the Purchase Period. For purposes of this paragraph, the fair
market value as of any date and in respect of any share of Common Stock
shall be the last sale price of the Common Stock on The Nasdaq Stock Market,
National Market (the "National Market"), on the date of determination or, if
no such reported sale of the Stock shall have occurred on such date on the
National Market, on the preceding date on which there was such a reported
sale on such National Market.
8. Payment for Option Shares.
(a) Shares Under Option. An eligible employee may elect to
participate in an offering by filing with the Human Resources Department a
payroll deduction form within the election period designated by the Company
prior to each Purchase Period (the "Election Period"). An eligible
employee's election to participate and payroll deduction form from the
preceding Election Period automatically shall carry over to the next
Election Period unless affirmatively revoked by the employee. An employee
who elects to participate may not authorize payroll deductions which, in the
aggregate, are less than one percent (1%) of the employee's cash
compensation during the Purchase Period (not including overtime and bonus
payments) or are more than 15% of the employee's cash compensation during
the Purchase Period (not including overtime and bonus payments). Only whole
shares of' Common Stock may be purchased under the Plan.
(b) A participating employee must authorize payroll
deductions over a six month Period beginning on June 1 or December 1 (the
"Purchase Period"). Purchase Periods automatically shall run successively
unless designated otherwise by the Company. An employee may suspend
payroll deductions during a Purchase Period at any time upon written notice
to the Human Resources Department which shall become effective no later than
the next payroll period following the suspension; provided, however, that
payroll deductions made prior to the suspension shall still be used to
purchase Common Stock for the employee at the end of the Purchase Period.
Upon suspension of such deductions, no further deductions will be made
during the Purchase Period or any future Purchase Periods unless the
employee submits the appropriate form to the Human Resources Department
electing to again participate in the Plan.
(c) Payroll deductions shall commence on the first payroll
date in the Purchase Period and shall continue until the last payroll date
in the Purchase Period; provided, however, that unless an election is
revoked, such election shall continue into successive six month Purchase
Periods.
(d) A participating employee's option shall be deemed to
have been exercised on the last business day of the Purchase Period.
(e) The Company retains the right to designate an exclusive
broker to handle the Common Stock transactions under the Plan. As soon as
practicable after the end of the Purchase Period, the Company shall deliver
to each employee or a designated brokerage account, through a certificate or
electronic transfer, the shares of Common Stock that such employee has
purchased. Any amount that has been deducted and withheld in excess of the
option price automatically shall be applied toward the purchase of option
shares in the next Purchase Period. An employee who elects not to
participate in the following Purchase Period shall receive a check from the
Company for any amount that has been deducted and withheld in excess of the
cost of shares.
9. Interest. No interest shall accrue or be paid on any amounts
paid by payroll deduction by any participating employee.
10. Termination of Employment, Unpaid Leave of Absence or Layoff.
If a participating employee ceases to be employed by the Company for any
reason (with or without severance pay), including but not limited to,
voluntary or forced resignation, retirement, death, layoff, or if an
employee is on an unpaid leave of absence, or during any period of
severance, within a reasonable time after notice of the termination or
unpaid leave of absence, the Company shall issue a check to the former
employee (or executor, administrator or legal representative, if applicable)
in the aggregate amount of the employee's payroll deductions that had not
yet been applied towards the purchase of shares as of the employee's date of
separation.
11. Non-Assignability. No option shall be transferable by an
employee, and an option shall be exercised only by an employee. Upon the
death of a participating employee, his or her executor, administrator or
other legal representative shall receive a check from the Company
representing the aggregate amount of the deceased employee's payroll
deductions that had not yet been applied towards the purchase of option
shares as of the date of death.
12. Adjustments. The total amount of Common Stock for which
options may be granted under the Plan, and the number of shares subject to
any option granted to a participant (both as to the number of shares of
Common Stock and the option price), shall be appropriately adjusted for any
increase or decrease in the number of outstanding shares of Common Stock
resulting from payment of a stock dividend on Common Stock, a subdivision or
combination of shares of Common Stock, or a reclassification of Common
Stock, and, pursuant to the paragraph below, in the event of a merger in
which the Company shall be the surviving corporation.
After any merger of one or more corporations into the Company, or
after any consolidation of the Company and one or more corporations in which
the Company shall be the surviving corporation, each participant shall, at
no additional cost, be entitled upon the exercise of an option, to receive
(subject to any required action by stockholders), in lieu of the number of
shares to which such option shall then be exercised, the number and class of
shares of stock or other securities to which such participant would have
been entitled to receive pursuant to the terms of the agreement of merger or
consolidation if at the time of such merger or consolidation such
participant had been a holder of record of a number of shares of Common
Stock equal to the number of shares to which such option shall then be so
exercised. Comparable rights shall accrue to each participant in the event
of successive mergers or consolidations of the character described above.
Anything contained herein to the contrary, upon the dissolution or
liquidation of the Company or upon any merger or consolidation in which the
Company is not the surviving corporation, the Purchase Period for any option
granted under this Plan shall terminate as of the date of the aforementioned
event, but each participant who is then an employee of the Company or a
subsidiary shall have the right, immediately prior to such dissolution,
liquidation, merger or consolidation, to exercise his option for such
Purchase Period in full on the earlier of the date of the merger or
liquidation or the last day of the Purchase Period.
The foregoing adjustments and the manner of application of the
foregoing provisions shall be determined by the Committee in its sole
discretion. Any such adjustment may provide for the elimination of any
fractional share which might otherwise become subject to an option.
13. Termination and Amendment. The Board may terminate the Plan,
or the granting of options under the Plan, at any time. No option shall be
granted under the Plan after October 30, 2007.
The Board may amend or modify the Plan at any time and from time to
time, but no amendment or modification shall disqualify the Plan under
Section 423 of the Code.
No amendment, modification, or termination of the Plan shall in any
manner affect any option granted under the Plan without the consent of the
participant holding the option.
14. Rule 16b-3 Requirements. Notwithstanding any other provision
of the Plan, the Committee may impose such conditions on the exercise of an
option as may be required to satisfy the requirements of Rule 16b-3 of the
Exchange Act, as amended from time to time (or any successor rule).
15. Rights Prior to Delivery of Shares. No participant shall have
any rights as a stockholder with respect to shares covered by an option
until the issuance of a stock certificate or electronic transfer to the
employee or his brokerage account of such shares. No adjustment shall be
made for dividends or other rights with respect to such shares for which the
record date is prior to the date the certificate is issued or the shares
electronically delivered to a brokerage account.
16. Securities Laws. Anything to the contrary herein
notwithstanding, the Company's obligation to sell and deliver stock pursuant
to the exercise of an option is subject to such compliance with federal and
state laws, rules and regulations applying to the authorization, issuance or
sale of securities as the Company deems necessary or advisable. The Company
shall not be required to sell and deliver stock unless and until it receives
satisfactory assurance that the issuance or transfer of such shares will not
violate any of the provisions of the Securities Act of 1933 or the Exchange
Act, or the rules and regulations of the Securities Exchange Commission
promulgated thereunder or those of any stock exchange on which the stock may
be listed, the provisions of any state laws governing the sale of
securities, or that there has been compliance with the provisions of such
acts, rules, regulations and laws.
The Committee may impose such restrictions on any shares of Common
Stock acquired pursuant to the exercise of an option under the Plan as it
may deem advisable, including, without limitation, restrictions (a) under
applicable federal securities laws, (b) under the requirements of any stock
exchange or other recognized trading market upon which such shares of Common
Stock are then listed or traded, and (c) under any blue sky or state
securities laws applicable to such shares. No shares shall be issued until
counsel for the Company has determined that the Company has complied with
all requirements under appropriate securities laws.
17. Approval of Plan. The Plan shall be subject to the approval
of at least a majority of the votes cast by the holders of the Company's
Common Stock entitled to vote at a meeting of stockholders of the Company
held within 12 months after the October 31, 1997 adoption of the Plan by the
Board. If not approved by stockholders within such 12-month period, the
Plan and any options granted hereunder shall become void and of no effect,
and the participating employees shall receive a check from the Company for
all payroll deductions relating to the Plan.
18. Effect on Employment. Neither the adoption of the Plan nor
the granting of an option pursuant to it shall be deemed to create any right
in any employee to be retained or continued in the employment of the
Company.
19. Use of Proceeds. The proceeds received from the sale of
shares of Common Stock pursuant to the Plan shall be used for corporate
purposes by the Company.
THIS EMPLOYEE STOCK PURCHASE PLAN is hereby executed on this the
21st day of November, 1997.
INTERFACE SYSTEMS, INC.
By:/s/ Robert A. Nero
Robert A. Nero
President
BOARD OF DIRECTORS APPROVAL: October 31, 1997
STOCKHOLDER APPROVAL:
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Interface Systems, Inc.
5855 Interface Drive
Ann Arbor, Michigan
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our reports dated
November 14, 1996, related to the consolidated financial statements and
schedule of Interface Systems, Inc. appearing in the Company's Annual Report
on Form 10-K for the year ended September 30, 1996.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
Troy, Michigan
November 24, 1997
