1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 11, 1997
REGISTRATION NO. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
IPL SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
Massachusetts 04-2511897
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
124 Acton Street
Maynard, Massachusetts 01754
(508) 461-1000
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
--------------------
1997 EQUITY INCENTIVE PLAN
(Full title of the plan)
--------------------
Harris Ravine
Chief Executive Officer
IPL SYSTEMS, INC.
124 Acton Street
Maynard, Massachusetts 01754
(508) 461-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
Copy to:
Jeremy D. Glaser, Esq.
COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
(619) 550-6000
--------------------
CALCULATION OF REGISTRATION FEE
============================================ =============== ================== =================== ==================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
- -------------------------------------------- --------------- ------------------ ------------------- ------------------
Class A Common Stock, $.01 par value 1,195,500 $1.76(1) $2,103,200.00(1) $637.33
============================================ =============== ================== =================== ==================
2
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The price per share and aggregate
offering price are based upon the average of the high and low sale prices on
September 4, 1997 as reported on the Nasdaq SmallCap Market for shares issuable
under the Registrant's 1997 Equity Incentive Plan. The following chart shows the
calculation of the registration fee.
- ------------------------------------------ ------------------ -------------------------- ----------------
Aggregate
Type of Shares Number of Shares Offering Price Per Share Offering Price
- ------------------------------------------ ------------------ -------------------------- ----------------
Common Stock issuable under the 1997 1,195,500 $1.76 $2,103,200.00
Equity Incentive Plan
- ------------------------------------------ ------------------ -------------------------- ----------------
3
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) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 (File No. 00-10370) and amendments thereto filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the latest fiscal year covered by the report
referred to in (a) above.
(c) The section entitled The Merger Proposals (pp. 17-24) and the
Financial Statements of Andataco (pp. F-15 - F-24) contained in the Company's
definitive Proxy Statement filed with the Commission on May 6, 1997.
(d) The description of the Company's Class A Common Stock contained
in its Registration Statement on Form 8-A/A (File No. 00-10370), including any
amendment or report filed for the purpose of updating such description.
On June 3, 1997, the Company completed a business combination with
ANDATACO, a California corporation ("ANDATACO"), whereby ANDATACO was merged
with a wholly-owned subsidiary of the Company (the "Merger"). Although as a
legal matter the Merger resulted in ANDATACO becoming a subsidiary of the
Company, for financial reporting purposes the Merger was treated as a
recapitalization of ANDATACO and an acquisition of the Company by ANDATACO using
the purchase method of accounting (reverse acquisition). The financial reporting
requirements of the Securities and Exchange Commission require that the
financial statements reported by the Company subsequent to June 3, 1997, the
date of consummation the Merger, be those of ANDATACO, which financial
statements will include the results of operations of the Company for periods
subsequent to the consummation of the Merger. Consequently, the financial
information contained in the Annual Report on Form 10-K identified in Item 3(a)
above represents the Company's historical financial information. The financial
information of the Company prior to its acquisition of Andataco contained in the
Proxy Statement identified in Item 3(c) above reflects the historical financial
information of ANDATACO.
All reports and other documents filed after the date of this
Registration Statement by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act and prior to the filing of a post-effective amendment
that indicates that all shares of Class A Common Stock offered hereby have been
sold or which deregisters all shares of Class A Common Stock remaining unsold
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of the filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
2.
4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 67 of Chapter 156B of the General Laws of Massachusetts
provides that officers and directors, subject to certain limitations, may be
indemnified by the Company to the extent authorized in its Articles of
Organization or by-laws adopted by the stockholders or vote adopted by the
holders of a majority of the shares of stock entitled to vote on the election of
directors and that officers who are not directors may be indemnified to the
extent authorized by the directors.
Article X of the Company's By-Laws provides as follows:
The corporation shall, to the extent legally permissible, indemnify
each person who may serve or who has served at any time as a director or officer
of the corporation or of any of its subsidiaries, or who at the request of the
corporation may serve or at any time has served as a director, officer or
trustee of, or in a similar capacity with, another organization or an employee
benefit plan, against all expenses and liabilities (including counsel fees,
judgments, fines, excise taxes, penalties and amounts payable in settlements)
reasonably incurred by or imposed upon such person in connection with any
threatened, pending or completed action, suit or other proceeding, whether
civil, criminal, administrative or investigative, in which he may become
involved by reason of his serving or having served in such capacity (other than
a proceeding voluntarily initiated by such person unless he is successful on the
merits, the proceeding was authorized by the corporation or the proceeding seeks
a declaratory judgment regarding his own conduct); provided that no
indemnification shall be provided for any such person with respect to any matter
as to which he shall have been finally adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that his action was in the best
interests of the corporation or, to the extent such matter relates to service
with respect to any employee benefit plan, in the best interests of the
participants or beneficiaries of such employee benefit plan; and provided,
further, that as to any matter disposed of by a compromise payment by such
person, pursuant to a consent decree or otherwise, the payment and
indemnification thereof have been approved by the corporation, which approval
shall not unreasonably be withheld, or by a court of competent jurisdiction.
Such indemnification shall include payment by the corporation of expenses
incurred in defending a civil or criminal action or proceeding in advance of the
final disposition of such action or proceeding, upon receipt of an undertaking
by the person indemnified to repay such payment if he shall be adjudicated to be
not entitled to indemnification under this article, which undertaking may be
accepted without regard to the financial ability of such person to make
repayment.
A person entitled to indemnification hereunder whose duties include
service or responsibilities as a fiduciary with respect to a subsidiary or other
organization shall be deemed to have acted in good faith in the reasonable
belief that his action was in the best interests of the corporation if he acted
in good faith in the reasonable belief that his action was in the best interests
of such subsidiary or organization or of the participants or beneficiaries of,
or other persons with interests in, such subsidiary or organization to whom he
had a fiduciary duty.
Where indemnification hereunder requires authorization or approval
by the corporation, such authorization or approval shall be conclusively deemed
to have been obtained, and in any case where a director of the corporation
approves the payment of indemnification, such director shall be wholly
protected, if:
(i) the payment has been approved or ratified (1) by a
majority vote of a quorum of the directors consisting of persons who
are not at that time parties to the proceeding, (2) by a majority
vote of a committee of two or more directors who are not at that
time parties to the proceeding and are selected for this purpose by
the full board (in which selection directors who are parties may
participate), or (3) by a majority vote of a quorum of the
outstanding shares of stock of all classes entitled to vote for
directors, voting as a single class, which quorum shall consist of
stockholders who are not at that time parties to the proceeding; or
(ii) the action is taken in reliance upon the opinion of
independent legal counsel (who may be counsel to the corporation)
appointed for the purpose by vote of the directors or in the manner
specified in clauses (1), (2) or (3) of subparagraph (i); or
3.
5
(iii) the payment is approved by a court of competent
jurisdiction; or
(iv) the directors have otherwise acted in accordance
with the standard of conduct set forth in the Massachusetts Business
Corporation Law.
Any indemnification or advance of expenses under Article X shall be
paid promptly, and in any event within 30 days, after the receipt by the
corporation of a written request therefor from the person to be indemnified,
unless with respect to a claim for indemnification the corporation shall have
determined that the person is not entitled to indemnification. If the
corporation denies the request or if payment is not made within such 30 day
period, the person seeking to be indemnified may at any time thereafter seek to
enforce his rights hereunder in a court of competent jurisdiction and, if
successful in whole or in part, he shall be entitled also to indemnification for
the expenses of prosecuting such action. Unless otherwise provided by law, the
burden of proving that the person is not entitled to indemnification shall be on
the corporation.
The right of indemnification under this article shall be a contract
right inuring to the benefit of the directors, officers and other persons
entitled to be indemnified hereunder and no amendment or repeal of this article
shall adversely affect any right of such director, officer or other person
existing at the time of such amendment or repeal.
The indemnification provided in Article X of the Bylaws shall inure
to the benefit of the heirs, executors and administrators of a director, officer
or other person entitled to indemnification hereunder. The indemnification
provided in Article X of the Bylaws may, to the extent authorized by the
corporation, apply to the directors, officers and other persons associated with
constituent corporations that have been merged into or consolidated with the
corporation who would have been entitled to indemnification hereunder had they
served in such capacity with or at the request of the corporation.
The right of indemnification under Article X of the Bylaws shall be
in addition to and not exclusive of all other rights to which such director or
officer or other persons may be entitled. Nothing contained in Article X of the
Bylaws shall affect any rights to indemnification to which corporation employees
or agents other than directors and officers and other persons entitled to
indemnification hereunder may be entitled by contract or otherwise under law.
The Company also has entered into agreements with its officers and
directors affirming the Company's obligation to indemnify them against all
claims arising out of their services to or for the Company, except as prohibited
by law, and providing various other protections to such officers and directors.
At present, there is no pending litigation or proceeding involving a
director, officer or key employee of the Company as to which indemnification is
being sought nor is the Company aware of any threatened litigation that may
result in claims for indemnification by any officer or director.
All directors and officers are insured up to an aggregate amount of
$8,000,000 under a Directors and Officers Liability and Company Reimbursement
Policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description
- ----------- -----------
* 4.1 Restated Articles of Organization dated March 27, 1981 and Articles of Amendment
dated May 12, 1981, July 8, 1992 and June 3, 1997.
4.
6
** 4.2 Restated Bylaws.
5.1 Opinion of Palmer & Dodge LLP.
23.1 Consent of Palmer & Dodge LLP. Reference is made to Exhibit 5.1.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Price Waterhouse LLP.
24.1 Power of Attorney. Reference is made to page 7.
99.1 Registrant's 1997 Equity Incentive Plan (the "1997 Plan").
99.2 Form of Incentive Stock Option Agreement under the 1997 Plan.
99.3 Form of Non-Statutory Stock Option Agreement under the 1997 Plan.
- -----------------------
* Filed as Exhibit 3.1 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1992 (except for the
Amendment dated June 3, 1997 filed as Exhibit 3.1 herein) and
incorporated herein by reference.
** Filed as Exhibit 3.2 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1987 and incorporated herein
by reference.
ITEM 9. UNDERTAKINGS.
1. The undersigned Registrant hereby undertakes:
(a) 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 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;
(b) 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.
(c) 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.
5.
7
2. 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.
3. 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.
6.
8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 San
Diego, State of California, on September 11, 1997.
IPL SYSTEMS, INC.
By: /s/ Harris Ravine
---------------------------
Harris Ravine
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Harris Ravine and Richard A. Hudzik, and
each of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his 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 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 connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or his substitutes or substitute, 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 by the following persons in the
capacities and on the dates indicated.
Chief Executive Officer and
Chairman of the Board
/s/ Harris Ravine (Principal Executive Officer) September 11, 1997
- ----------------------------------
Harris Ravine
/s/ W. David Sykes President and Director September 11, 1997
- ----------------------------------
W. David Sykes
Chief Financial Officer
/s/ Richard A. Hudzik (Principal Financial and Accounting September 11, 1997
- ---------------------------------- Officer)
Richard A. Hudzik
/s/ Stephen J. Ippolito Director September 11, 1997
- ----------------------------------
Stephen J. Ippolito
/s/ Cornelius P. McMullan Director September 11, 1997
- ----------------------------------
Cornelius P. McMullan
7.
9
EXHIBITS
Exhibit No. Description
- ----------- -----------
* 4.1 Restated Articles of Organization dated March 27, 1981
and Articles of Amendment dated May 12, 1981, July 8
1992 and June 3, 1997.
** 4.2 Restated Bylaws.
5.1 Opinion of Palmer & Dodge LLP.
23.1 Consent of Palmer & Dodge LLP. Reference is made to Exhibit 5.1.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Price Waterhouse LLP.
24.1 Power of Attorney. Reference is made to page 7.
99.1 Registrant's 1997 Equity Incentive Plan (the "1997 Plan").
99.2 Form of Incentive Stock Option Agreement under the 1997 Plan.
99.3 Form of Non-Statutory Stock Option Agreement under the 1997 Plan.
-----------------------
* Filed as Exhibit 3.1 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1992 (except for the
Amendment dated June 3, 1997 filed as Exhibit 3.1 herein) and
incorporated herein by reference.
** Filed as Exhibit 3.2 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1987 and incorporated herein
by reference.
8.