As filed with the Securities and Exchange Commission on August 30, 1999
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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IMAGE SENSING SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA 41-1519168
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
500 Spruce Tree Centre
1600 University Avenue West
St. Paul, Minnesota 55104
(651) 603-7700
(Address of principal executive offices) (Zip code)
IMAGE SENSING SYSTEMS, INC. 1995 LONG-TERM INCENTIVE AND STOCK OPTION PLAN
(Full title of the plan)
EMPLOYMENT AGREEMENT DATED MARCH 10, 1995, BETWEEN PANOS MICHALOPOULOS AND
IMAGE SENSING SYSTEMS, INC.
(Full title of the plan)
OPTION AGREEMENT DATED AUGUST 27, 1996, BETWEEN JAMES MURDAKES AND
IMAGE SENSING SYSTEMS, INC.
(Full title of the plan)
OPTION AGREEMENT DATED APRIL 1, 1998, BETWEEN JAMES MURDAKES AND
IMAGE SENSING SYSTEMS, INC.
(Full title of the plan)
OPTION AGREEMENT DATED DECEMBER 8, 1998, BETWEEN CONSTANTINE XYKIS AND
IMAGE SENSING SYSTEMS, INC.
(Full title of the plan)
OPTION AGREEMENT DATED DECEMBER 8, 1998, BETWEEN RICHARD C. MAGNUSON AND
IMAGE SENSING SYSTEMS, INC.
(Full title of the plan)
OPTION AGREEMENT DATED DECEMBER 8, 1998, BETWEEN RICHARD P. BRAUN AND
IMAGE SENSING SYSTEMS, INC.
(Full title of the plan)
OPTION AGREEMENT DATED DECEMBER 8, 1998, BETWEEN JAMES MURDAKES AND
IMAGE SENSING SYSTEMS, INC.
(Full title of the plan)
<PAGE>
--------------------
William L. Russell, President
Image Sensing Systems, Inc.
500 Spruce Tree Centre
1600 University Avenue West
St. Paul, Minnesota 55104
(651) 603-7700
--------------------
(Name and address of agent for service)
(651) 603-7700
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------- ---------------- -------------------- ---------------------- --------------------
Proposed Proposed
Title of each class Maximum Offering Maximum
of Securities to be Amount to be Price Aggregate Offering Amount of
registered registered per Share (1) Price (1) Registration Fee
- --------------------- ---------------- -------------------- ---------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock
($.01 par value) 408,000 $4.438 $1,810,074 $503.20
- --------------------- ---------------- -------------------- ---------------------- --------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended.
The proposed maximum offering price is based upon the average of the high and
low prices of the Common Stock as reported on the Nasdaq consolidated reporting
system on August 26, 1999.
- --------------------------------------------------------------------------------
<PAGE>
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by Image Sensing
Systems, Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the
fiscal year ended December 31, 1998;
(b) The Company's Quarterly Reports on Form 10-QSB for
the quarters ended March 31, 1999 and June 30, 1999; and
(c) The description of the Company's Common Stock
contained in any registration statement filed by the Company under
the Exchange Act, including any amendment or report filed by the
Company under the Exchange Act for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date hereof and prior to the filing of a post-effective
amendment 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 herein and to be a part hereof from the respective
dates of filing of such documents.
Item 6. Indemnification of Directors and Officers.
The Company's Restated Articles of Incorporation provide for
indemnification of directors of the Company to the fullest extent permitted by
Minnesota law. Section 302A.521, subd. 2, of the Minnesota Statutes requires the
Company to indemnify a person made or threatened to be made a party to a
proceeding by reason of the former or present official capacity of the person
with respect to the Company, against judgments, penalties, fines (including,
without limitation, excise taxes assessed against the person with respect to an
employee benefit plan), settlements, and reasonable expenses, including
attorneys' fees and disbursements, incurred by the person in connection with the
proceeding, if, with respect to the acts or omissions of the person complained
of in the proceeding, the person (1) has not been indemnified by another
organization or employee benefit plan for the same judgments, penalties or
fines; (2) acted in good faith; (3) received no improper personal benefit, and
statutory procedure has been followed in the case of any conflict of interest by
a director; (4) in the case of a criminal proceeding, had no reasonable cause to
believe the conduct was unlawful; and (5) in the case of acts or omissions
occurring in the person's performance in the official capacity of director or,
for a person not a director, in the official capacity of officer, board
committee member or employee, reasonably believed that the conduct was in the
best interests of the Company, or, in the case of performance by a director,
officer or employee of the Company involving service as a director, officer,
partner, trustee, employee or agent of another organization or employee benefit
plan, reasonably believed that the conduct was not opposed to the best interests
of the Company. In addition, Section 302A.521, subd. 3, requires payment by the
Company, upon written request, of reasonable expenses in advance of final
disposition of the proceeding in certain instances. A decision as to required
indemnification is made by a disinterested majority of the Board of Directors
present at a meeting at which a disinterested quorum is present, or by a
designated committee of the Board, by special legal counsel, by the
shareholders, or by a court.
Article IX of the Bylaws of the Company provides that the Company
shall indemnify officers and directors to the extent permitted by Section
302A.521 as now enacted or hereafter amended.
<PAGE>
Item 8. Exhibits.
4.1 Restated Articles of Incorporation of the Company,
incorporated by reference to the Company's registration
statement on Form SB-2 (Registration No. 90298C) filed
with the Commission on March 14, 1995
4.2 Bylaws of the Company, incorporated by reference to the
Company's registration statement on Form SB-2
(Registration No. 90298C) filed with the Commission on
March 14, 1995
5 Opinion of Dorsey & Whitney LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5
above)
Item 9. Undertakings.
A. Post-Effective Amendments.
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 of 1933;
(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; Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high and of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(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 subparagraphs (a) and (b) above do not apply if the
information required to be included in a post-effective amendment by those
subparagraphs 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
Securities Exchange Act of 1934 that are incorporated by reference in this
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.
2
<PAGE>
(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. Subsequent Documents Incorporated 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. Claims for Indemnification.
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.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe 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 St. Paul, State of Minnesota, on this 30th day of
August, 1999.
IMAGE SENSING SYSTEMS, INC.
By: /s/ William L. Russell
----------------------
William L. Russell
President and Chief Executive Officer
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 August 30, 1999.
Signature Title
- --------- -----
/s/ Panos G. Michalopoulos Chairman of the Board of Directors
- -------------------------------------------
Panos G. Michalopoulos
/s/ William L. Russell President and Chief Executive Officer
- -------------------------------------------
William L. Russell
/s/ Richard C. Magnuson Director
- -------------------------------------------
Richard C. Magnuson
/s/ Arthur J. Bourgeois Chief Financial Officer, Treasurer
- -------------------------------------------
Arthur J. Bourgeois
/s/ Richard P. Braun Director
- -------------------------------------------
Richard P. Braun
/s/ James Murdakes Director and Secretary
- -------------------------------------------
James Murdakes
/s/ Constantine Xykis Director
- -------------------------------------------
Constantine Xykis
4
<PAGE>
EXHIBIT INDEX
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Exhibit No. Name
- ----------- ----
4.1 Restated Articles of Incorporation of the Company,
incorporated by reference to the Company's registration
statement on Form SB-2 (Registration No. 90298C) filed
with the Commission on March 14, 1995
4.2 Bylaws of the Company, incorporated by reference to the
Company's registration statement on Form SB-2
(Registration No. 90298C) filed with the Commission on
March 14, 1995
5 Opinion of Dorsey & Whitney LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5
above)
Exhibit 5
Dorsey & Whitney LLP
Pillsbury Center South
220 South Sixth Street
Minneapolis, Minnesota 55402-1498
(612) 340-2600
FAX (612) 340-2868
Image Sensing Systems, Inc.
500 Spruce Tree Centre
1600 University Avenue West
St. Paul, Minnesota 55104
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Image Sensing Systems, Inc., a Minnesota
corporation (the "Company"), in connection with a Registration Statement on Form
S-8 (the "Registration Statement") relating to the sale by the Company from time
to time of up to 408,000 shares of Common Stock, $.01 par value, of the Company
(the "Shares"), issuable pursuant to the 1995 Long-Term Incentive and Stock
Option Plan, the Employment Agreement dated March 10, 1995, between Panos
Michalopoulos and the Company, the Option Agreement dated August 27, 1996,
between James Murdakes and the Company, the Option Agreement dated April 1,
1998, between James Murdakes and the Company, the Option Agreement dated
December 8, 1998, between Constantine Xykis and the Company, the Option
Agreement dated December 8, 1998, between Richard C. Magnuson and the Company,
the Option Agreement dated December 8, 1998, between Richard P. Braun and the
Company and the Option Agreement dated December 8, 1998, between James Murdakes
and the Company (collectively, the "Plans").
We have examined such documents and have reviewed such questions of
law as we have considered necessary and appropriate for the purposes of the
opinions set forth below.
In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company, that such
parties had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
<PAGE>
Image Sensing Systems, Inc.
Page 2
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have
been duly authorized and, upon issuance, delivery and payment therefor in
accordance with the terms of the Plans, will be validly issued, fully paid and
nonassessable.
Our opinions expressed above are limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Dated: August 30, 1999
Very truly yours,
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No 333-00000) pertaining to the 1995 Long-Term Incentive and Stock Option
Plan and certain employment and option agreements of Image Sensing Systems,
Inc., of our report dated February 12, 1999 with respect to the financial
statements of Image Sensing Systems, Inc. for the year ended December 31, 1998,
incorporated by reference in its Annual Report (Form 10-KSB) for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Minneapolis, Minnesota
August 30, 1999
