As filed with the Securities and Exchange Commission on December 21, 2001
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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ODETICS, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-2588496
(State or other jurisdiction IRS Employer Identification No.)
of incorporation or organization)
1515 South Manchester Avenue, Anaheim, California 92802-2907
(Address of principal executive offices) (Zip Code)
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ODETICS, INC. 1997 STOCK INCENTIVE PLAN
ODETICS, INC. 401(k) AND STOCK OWNERSHIP PLAN
(Full titles of the Plans)
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GREGORY A. MINER
Chief Financial Officer
Odetics, Inc.
1515 South Manchester Avenue
Anaheim, California 92802
(Name and address of agent for service)
(714) 774-5000
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum
Title of Securities to be Offering Price Aggregate Amount of
to be Registered Registered(1) per Share Offering Price Registration Fee
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Odetics, Inc. 1997 Stock Incentive Plan
Class A common stock, $0.10 par value 875,000 shares $1.36 (2) $1,190,000 (2) $284.41
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Odetics, Inc. 401(k) and Stock Ownership Plan (3)
Class A common stock, $0.10 par value 1,500,000 shares $1.36 (2) $2,040,000 (2) $487.56
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Total 2,375,000 shares $771.97
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(1) This Registration Statement shall also cover any additional shares of Class
A common stock which become issuable under the Odetics, Inc. 1997 Stock
Incentive Plan or the Odetics, Inc. 401(k) and Stock Ownership Plan, as
amended (the "401(k) Plan"), by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration which results in an increase in the number of the
outstanding shares of Class A common stock of Odetics, Inc.
(2) Calculated solely for the purpose of this offering under Rule 457(h) of the
Securities Act of 1933, as amended (the "Securities Act"), on the basis of
the average of the high and low selling prices per share of Class A common
stock of Odetics, Inc. on December 19, 2001, as reported on the Nasdaq
National Market.
(3) In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of plan
interests to be offered or sold pursuant to the 401(k) Plan.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
---------------------------------------
Odetics, Inc. hereby incorporates by reference into this
Registration Statement the following documents previously filed with the
Securities and Exchange Commission:
(a) Our Annual Report on Form 10-K for the fiscal year ended March
31, 2001 filed with the Securities and Exchange Commission on
July 16, 2001 as amended by its Amended Annual Report on Form
10-K/A for the fiscal year ended March 31, 2001 filed with the
Securities and Exchange Commission on July 30, 2001;
(c) Our Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 2001 filed with the Securities and Exchange
Commission on August 14, 2001;
(c) Our Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 2001 filed with the Securities and Exchange
Commission on November 14, 2001;
(d) Our Current Reports on Form 8-K filed with the Securities
and Exchange Commission on June 1, 2001 and October 3, 2001;
(e) The description of our Class A common stock contained in our
registration statement on Form 8-A filed with the Securities
and Exchange Commission on October 14, 1987 under Section 12
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including any amendment or report filed for
the purpose of updating such description; and
(f) The description of our preferred stock purchase rights
contained in our registration statement on Form 8-A filed with
the Securities and Exchange Commission on May 1, 1998 under
Section 12 of the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All reports and definitive proxy or information statements
filed by Odetics, Inc. or the Odetics, Inc. 401(k) and Stock Ownership Plan
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which de-registers all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
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Not Applicable.
Item 5. Interests of Named Experts and Counsel
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Not Applicable.
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Item 6. Indemnification of Directors and Officers
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The Certificate of Incorporation of Odetics, Inc. limits the
liability of its directors to Odetics, Inc. and its stockholders for monetary
damages for breach of the directors' fiduciary duty. This provision is intended
to afford the Odetics, Inc.'s directors the benefit of the Delaware General
Corporation Law (the "Delaware Law"), which Delaware Law provides that directors
of a corporation will not be personally liable for monetary damages for breach
of their fiduciary duties as directors, except for liability for (i) any breach
of their duty of loyalty to the corporation or its stockholders, (ii) acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) unlawful payments of dividends or unlawful stock
repurchases or redemptions as provided in Section 174 of the Delaware Law, or
(iv) any transaction from which the director derives an improper personal
benefit.
The Certificate of Incorporation and Bylaws of Odetics, Inc.
requires indemnification of its directors and officers to the maximum extent
permitted by Delaware Law. Section 145 of the Delaware Law authorizes
indemnification by a Delaware corporation when a person is made a party to any
proceeding by reason of the fact that such person is or was a director, officer,
employee or agent of the corporation or was serving as a director, officer,
employee or agent of another enterprise, at the request of the corporation, and
if such person acted in good faith and in a manner reasonably believed by him or
her to be in, or not opposed to, the best interests of the corporation. With
respect to any criminal proceeding, such person must have had no reasonable
cause to believe that his or her conduct was unlawful. If it is determined that
the conduct of such person meets these standards, he or she may be indemnified
for expenses incurred and amounts paid in such proceeding (including attorneys'
fees) if actually and reasonably incurred by him or her in connection therewith.
If such a proceeding is brought by or on behalf of Odetics, Inc., such person
may be indemnified against expenses actually and reasonably incurred if he or
she acted in good faith and in a manner reasonably believed by him or her to be
in, or not opposed to, the best interests of Odetics, Inc. Where such person is
adjudged to be liable to Odetics, Inc., he or she is not entitled to
indemnification unless and to the extent that the court allows such
indemnification to such person for such expenses as the court deems proper.
Where such person is successful in any such proceeding, he or she is entitled to
be indemnified against expenses actually and reasonably incurred by him or her.
In all other cases, indemnification is made by Odetics, Inc. upon determination
by it that indemnification of such person is proper because such person has met
the applicable standard of conduct.
Odetics, Inc. has also entered into contractual arrangements
with its directors and officers pursuant to which such persons may be entitled
to indemnity from Odetics, Inc. against certain liabilities arising from
the discharge of their duties in such capacities.
Odetics, Inc. maintains an errors and omissions liability
policy for the benefit of its officers and directors, which may cover certain
liabilities of such individuals to Odetics, Inc. and its stockholders.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
Item 8. Exhibits
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Exhibit Number Exhibit
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4.1 Instruments Defining the Rights of Stockholders.
Reference is made to Odetics, Inc.'s Registration
Statement No. 001-08762 on Form 8-A, together with
the amendments and exhibits thereto, which are
incorporated herein by reference pursuant to Item 3(e).
II-2
4.2 Instruments Defining the Rights of Stockholders. Reference
is made to Odetics, Inc.'s Registration Statement No.
000-10605 on Form 8-A, together with the amendments and
exhibits thereto, which are incorporated herein by
reference pursuant to Item 3(f).
5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 Odetics, Inc. 1997 Stock Incentive Plan.*
In lieu of including, as an exhibit, an Internal Revenue Service ("IRS")
determination letter that the 401(k) Plan is qualified under Section 401 of the
Internal Revenue Code or an opinion of counsel concerning compliance with the
requirements of ERISA, Odetics, Inc. undertakes that it will submit the 401(k)
Plan to the IRS in a timely manner for such a determination letter and will make
all changes required by the IRS in order to so qualify the 401(k) Plan.
Item 9. Undertakings
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A. Odetics, Inc. 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 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, and (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 clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed with or
furnished to the Securities and Exchange Commission by the Odetics, Inc.
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference into this 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; and
(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
Odetics, Inc. 1997 Stock Incentive Plan.
B. Odetics, Inc. hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of Odetics,
Inc.'s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act that is incorporated by reference in this 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. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of Odetics, Inc. pursuant to the indemnification provisions summarized
in Item 6 above, or otherwise, Odetics, Inc. 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 Odetics, Inc. of expenses incurred or
paid by a director, officer or controlling person of Odetics, Inc. 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,
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* Incorporated by reference from Odetics, Inc.'s Proxy Statement on
Schedule 14A that was filed with the Securities and Exchange Commission on
July 28, 2000.
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Odetics, Inc. 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, Odetics, Inc.
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 Anaheim, California, on this 21st day of December, 2001.
ODETICS, INC.
By: /s/ Joel Slutzky
-----------------------------------
Joel Slutzky,
Chairman of the Board and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned
officers and directors of Odetics, Inc., a Delaware corporation, do hereby
constitute and appoint Joel Slutzky and Gregory A. Miner and each of them, their
lawful attorneys-in-fact and agents with full power and authority to do any and
all acts and things and to execute any and all instruments which said attorneys
and agents, and any one of them, determine may be necessary or advisable or
required to enable Odetics, Inc. to comply with the Securities Act and any rules
or regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that all said attorneys and agents, or any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated. Pursuant to the requirements of the
Securities Act, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Joel Slutzky Chief Executive Officer, President and
------------------------------------ Chairman of the Board (Principal December 21, 2001
Joel Slutzky Executive Officer)
Chief Operating Officer, Chief
/s/ Gregory A. Miner Financial Officer, Vice President and December 21, 2001
------------------------------------ Director
Gregory A. Miner
/s/ Gary Smith Vice President and Controller December 21, 2001
------------------------------------ (Principal Financial Officer)
Gary Smith
II-5
/s/ Kevin C. Daly Director December 19, 2001
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Kevin C. Daly
/s/ Crandall Gudmundson Director December 21, 2001
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Crandall Gudmundson
/s/ Jerry F. Muench Director December 19, 2001
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Jerry F. Muench
/s/ John W. Seazholtz Director December 21, 2001
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John W. Seazholtz
/s/ Thomas L. Thomas Director December 21, 2001
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Thomas L. Thomas
/s/ Paul E. Wright Director December 21, 2001
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Paul E. Wright
Pursuant to the requirements of the Securities Act, the 401(k)
Plan has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in Anaheim, California, on this 21st
day of December, 2001.
ODETICS, INC. 401(k) AND STOCK OWNERSHIP PLAN
By: /s/ Gary Smith
----------------------------------
Gary Smith,
Plan Administrator
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
ODETICS, INC.
EXHIBIT INDEX
Exhibit Number Exhibit
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4.1 Instruments Defining the Rights of Stockholders.
Reference is made to Odetics, Inc.'s Registration
Statement No. 001-08762 on Form 8-A, together with
the amendments and exhibits thereto, which are
incorporated herein by reference pursuant to Item 3
(e).
4.2 Instruments Defining the Rights of Stockholders.
Reference is made to Odetics, Inc.'s Registration
Statement No. 000-10605 on Form 8-A, together with
the amendments and exhibits thereto, which are
incorporated herein by reference pursuant to Item
3(f).
5.1 Opinion and consent of Brobeck, Phleger & Harrison
LLP.
23.1 Consent of Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is
contained in Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page II-4 of
this Registration Statement.
99.1 Odetics, Inc. 1997 Stock Incentive Plan.*
In lieu of including, as an exhibit, an IRS determination letter that the 401(k)
Plan is qualified under Section 401 of the Internal Revenue Code or an opinion
of counsel concerning compliance with the requirements of ERISA, Odetics, Inc.
undertakes that it will submit the 401(k) Plan to the IRS in a timely manner for
such a determination letter and will make all changes required by the IRS in
order to so qualify the 401(k) Plan.
---------------------------
* Incorporated by reference from Odetic, Inc.'s Proxy Statement on Schedule
14A that was filed the Securities and Exchange Commission on July 28, 2000.