As filed with the Securities and Exchange Commission on November 19, 1996
Registration No. ________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
DATRON SYSTEMS INCORPORATED
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(Exact name of registrant as specified in its charter)
Delaware 95-2582922
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(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
304 Enterprise Street, Escondido, California 92029
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(Address of principal executive offices)
1995 STOCK OPTION PLAN
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(Full title of the plan)
David A. Derby
Datron Systems Incorporated
304 Enterprise Street
Escondido, California 92029
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(Name and address of agent for service)
(619) 747-3734
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(Telephone number, including area code, of agent for service)
Copy to: Timothy G. Hoxie, Esq.
Heller, Ehrman, White & McAuliffe
333 Bush Street
San Francisco, California 94104-2878
(415) 772-6000
CALCULATION OF REGISTRATION FEE
===================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share (1) price fee
Common Stock
($.01 par value) 500,000 $10.0625 $5,031,250 $1,524.62
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(1) Estimated (solely for the purpose of calculating
the registration fee) on the basis of the average
high and low prices of the registrant's Common Stock on
November 13, 1996 as reported by the Nasdaq Stock Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed or to be filed with the
Commission by the Registrant are incorporated by reference in
this registration statement:
(a) The Registrant's latest annual report (Form 10-K)
filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or the
latest prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), that
contains audited financial statements for the Registrant's latest
fiscal year for which such statements have been filed;
(b) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange Act since the end of the
fiscal year covered by the annual report or prospectus referred
to in (a) above;
(c) The description of the Common Stock of the Registrant
contained in the registration statement filed under the Exchange
Act registering such Common Stock under Section 12 of the
Exchange Act.
All documents subsequently filed by the 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 offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this registration
statement and to be part thereof from the date of filing of such
documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Victor A. Hebert is a shareholder of a professional
corporation that is a partner of Heller, Ehrman, White &
McAuliffe and holds options to purchase 10,000 shares of Common
Stock of the Registrant.
Item 6. Indemnification of Directors and Officers
The Registrant has the power to indemnify its officers and
directors against liability for certain acts pursuant to Section
42 of the Registrant's By-laws:
"(a) Right of Indemnity. The corporation shall indemnify
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding whether civil, criminal, administrative or
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investigative, whether or not the action is by or in the right of
the corporation, by reason of the fact that the person is or was
a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses,
judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action,
suit or proceeding to the maximum extent permitted by Section 145
of the Delaware General Corporation Law, as amended from time to
time. For purposes of these subparagraphs, "the corporation",
"other enterprise", "fines", and "serving at the request of the
corporation" shall have the meaning specified in Section 145.
(b) Approval of Indemnity. Upon written request
to the Board of Directors by any person seeking indemnification
under Section 145(a) or (b), the Board of Directors shall approve
indemnification upon a determination that indemnification of the
person is proper in the circumstances because the person has met
the applicable standard of conduct set forth in Section 145(a) or
(b). Such determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, of
(2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) if there are no
disinterested directors, by the stockholders.
(c) Advancement of Expenses. Expenses incurred
by any person entitled to indemnification under this Bylaw in
defending a civil or criminal action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of
such action, suit or proceeding, provided that, if Section 145 so
requires, the payment of such expenses incurred by an officer or
director in his or her capacity as such (and not in any other
capacity in which a director or officer, including without
limitation service with respect to an employee benefit plan) in
advance of an action, suit or proceeding shall only be made upon
receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined
that such director or officer is not entitled to be indemnified
by the corporation as authorized in Section 145.
(d) Non-exclusivity of Rights. The right to
indemnification and payment of expenses incurred in defending a
proceeding in advance of its final disposition conferred in this
Bylaw shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, Bylaw, agreement, vote of
stockholders or disinterested directors or otherwise. Such
rights shall continue as to a person who has ceased to be an
officer, director, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
(e) Contract Right. The right to
indemnification confirmed by this Bylaw shall be a contract
right.
(f) Proceedings by Indemnitee. A person
otherwise entitled to indemnification in connection with any
action, suit or proceeding (or part thereof) initiated by such
person shall only be indemnified for, or have his or her expenses
advanced in connection therewith, if such proceedings (or part
thereof) are authorized by the Board of Directors."
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In addition, the Registrant has entered into
Indemnification Agreements with each of its directors and
officers as authorized by the Registrant's stockholders at the
annual meeting held August 11, 1992. Such agreements are
intended to require the Registrant to indemnify such directors
and officers to the fullest extent permitted by Delaware law.
The Registrant has directors and officers liability
insurance which would indemnify the directors and officers of the
Registrant against damages arising out of certain kinds of claims
which might be made against them based on actions taken or
omissions made in their capacity as directors or officers of the
Registrant.
Item 8. Exhibits
4.1 1995 Stock Option Plan
4.2 Form of Stock Purchase Agreement
4.3 Form of Incentive Stock Option Agreement
4.4 Form of Nonqualified Stock Option Agreement
5 Opinion of Heller, Ehrman, White & McAuliffe
23.1 Consent of Heller, Ehrman, White & McAuliffe
(filed as part of Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (see page 8)
Item 9. Undertakings
A. 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;
(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.
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
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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.
(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 by the Registrant pursuant to Section 13
or 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. 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 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.
C. The undersigned Registrant hereby undertakes to
deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual
report, to security holders that is incorporated by reference in
the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not
set forth in the prospectus, to deliver, or cause to be delivered
to each person to whom the prospectus is sent or given, the
latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information.
D. Insofar as indemnification 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 Securities and Exchange
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
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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.
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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 Escondido, State of California, on
this 13th day of November, 1996.
DATRON SYSTEMS INCORPORATED
By: DAVID A. DERBY, President and
Chief Executive Officer
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POWER OF ATTORNEY TO SIGN AMENDMENTS
KNOW ALL PERSONS BY THESE PRESENTS, that each person
whose signature appears below appoints David A. Derby and William
L. Stephan, and each of them, with full power of substitution and
full power to act without the other such person's true and lawful
attorney-in-fact and agent for such person in such person's name,
place and stead, in any and all capacities, to sign any or all
amendments (including post-effective 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, and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in
order to effectuate the same as fully, to all intents and
purposes, as they or such person might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, 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 on Form S-8 has
been signed by the following persons in the capacities and on the
dates indicated.
DAVID A. DERBY President, Chief November 7,
Executive Officer and 1996
Director (Principal
Executive Officer)
RICHARD W. PERSHING Chairman of the Board November 7,
of Directors 1996
WILLIAM L. STEPHAN Vice President, Chief November 7,
Financial Officer and 1996
Treasurer
(Principal Accounting
Officer)
KENT P. AINSWORTH Director November 7,
1996
MICHAEL F. BIGHAM Director November 7,
1996
ADRIAN C. CASSIDY Director November 7,
1996
PETER F. SCOTT Director November 7,
1996
ROBERT D. SHERER Director November 7,
1996
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Index to Exhibits
Exhibit No. Description of Exhibit
4.1 1995 Stock Option Plan
4.2 Form of Stock Purchase Agreement
4.3 Form of Incentive Stock Option Agreement
4.4 Form of Nonqualified Stock Option Agreement
5 Opinion of Heller, Ehrman, White & McAuliffe
23.1 Consent of Heller, Ehrman, White & McAuliffe
(filed as part of Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (see page 8)