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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
VICON INDUSTRIES, INC.
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(Exact name of Registrant as specified in its charter)
New York 11-2160665
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
89 Arkay Drive, Hauppauge, New York 11788
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(Address of Principal Executive Offices) (Zip Code)
VICON INDUSTRIES, INC.
2002 Incentive Stock Option Plan and
2002 Non-Qualified Stock Option Plan
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(Full title of the Plan)
Kenneth M. Darby
Chairman and Chief Executive Officer
Vicon Industries, Inc.
89 Arkay Drive
Hauppauge, NY 11788
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(Name and Address of Agent for Service)
(631) 952-2288
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Telephone number, including area code, of Agent for Service
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum Amount of
securities to Amount to offering price aggregate registration
be registered be registered per share (2) offering price(2) fee
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Common Stock 400,000 shares(1) $3.86 $1,543,947 $195.62
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(1) The maximum number of shares as to which options may be granted under the
Vicon Industries, Inc. 2002 Incentive Stock Option Plan and 2002
Non-Qualified Stock Option Plan. In addition, pursuant to Rule 416(c) under
the Securities Act of 1933, this registration statement also covers an
indeterminate number of shares as may be required to cover possible
adjustments under such Plan.
(2) Estimated solely for the purpose of calculating the registration fee.
Proposed maximum aggregate offering price is calculated pursuant to Rule
457 (h) (1) based on the sum of: (a) the aggregate of the exercise prices
($1,275,662) of the outstanding options for 351,221 shares, plus (b) with
respect to options for the remaining 48,779 shares reserved for grant, an
assumed price of $5.50 per share based upon the average of the high and low
sale prices of the Registrant's Common Shares as reported on the American
Stock Exchange on June 8, 2004.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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The following documents filed by Vicon Industries, Inc. (the "Company")
with the Securities and Exchange Commission are incorporated in this
Registration Statement by reference:
1. The Company's Annual Report on Form 10-K for its fiscal year ended
September 30, 2003, filed pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934(the "Exchange Act").
2. The Company's Quarterly Report on Form 10-Q for its quarters ended
December 31, 2003 and March 31, 2004, filed pursuant to Section 13(a) or 15(d)
of the Exchange Act.
3. The description of the Common Stock contained in the Company's
Registration Statement on Form S-1, SEC File Number 2-66511 under Section 12 of
the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company 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 and to be a part of this Registration Statement
from the date of filing of such documents.
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.
Item 6. Indemnification of Directors and Officers
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Article 7 of the New York Business Corporation Law provides for the
indemnification of directors and officers subject to certain limitations. Among
other provisions, the statute provides that to be entitled to indemnification
under the statutory provisions, a person who is sued or threatened to be sued by
reason of being a director or officer of a New York corporation must
affirmatively establish that he acted in good faith for a purpose which he
reasonably believed to be in the best interests of the corporation. The statute
requires court approval to provide indemnification in a derivative action under
certain circumstances. Additionally, the indemnification to which directors,
officers and other persons serving the corporation are entitled excludes amounts
payable in a derivative action where the director, officer or other person is
adjudged to be liable to the corporation.
The Registrant's Certificate of Incorporation is silent with respect to
indemnification of directors and officers. The By-laws of the Company provide
for the indemnification of its directors and officers to the maximum extent
provided by law. It is the position of the Securities and Exchange Commission
and certain state securities administrators that any attempt to limit the
liability of persons controlling an issuer under the federal securities laws or
state securities laws is contrary to public policy and, therefore,
unenforceable.
Item 7. Exemption from Registration Claimed
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Not Applicable
Item 8. Exhibits
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The following is a complete list of exhibits filed as a part of this
registration statement:
Exhibit No. Documents
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4 The Company's 2002 Incentive Stock Option Plan and 2002
Non - Qualified Stock Option Plan ( incorporated by
reference to the Company's Annual Report on Form 10- K
for the fiscal year ended September 30 , 2002 ).
5 Opinion of Schoeman, Updike & Kaufman, LLP dated June
10, 2004 as to the legality of original issuance
of shares of Common Stock being registered.
23.1 Consent of KPMG LLP.
23.2 Consent of Schoeman, Updike & Kaufman, LLP
(included in Exhibit 5).
Item 9. Undertakings
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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 thereto)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and (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 Section 15(d) of the Exchange
Act 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;
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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act of 1934 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 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
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Pursuant to the requirements of the Securities Act of 1933, 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 Town of Smithtown, State of New York, on June 10, 2004.
VICON INDUSTRIES, INC.
By: /s/ Kenneth M. Darby
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Name: Kenneth M. Darby
Title: Chairman and Chief Executive Officer
By: /s/ John M. Badke
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Name: John M. Badke
Title: Senior Vice President, Finance and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities on the dates indicated:
Signature Title Date
/s/ Kenneth M. Darby Chairman and June 10, 2004
------------------- Chief Executive Officer ----------------
Kenneth M. Darby
/s/ Clifton H. W. Maloney Director June 10, 2004
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Clifton H. W. Maloney
/s/ Peter F. Neumann Director June 10, 2004
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Peter F. Neumann
/s/ W. Gregory Robertson Director June 10, 2004
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W. Gregory Robertson
/s/ Arthur D. Roche Director June 10, 2004
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Arthur D. Roche