As filed with the Securities and Exchange Commission on February 26, 2004
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
INNOVATIVE SOLUTIONS AND SUPPORT, INC.
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(Exact name of Registrant as Specified in Its Charter)
Pennsylvania 23-2507402
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(State or other Jurisdiction of (I.R.S employer Identification No.)
Incorporation)
720 Pennsylvania Drive, Exton, PA 19341
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(Address of Principal Executive Offices, including Zip Code)
Innovative Solutions and Support, Inc. 2003 Restricted Stock Plan
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(Full Title of the Plans)
Geoffrey S. M. Hedrick
Chief Executive Officer
Innovative Solutions and Support, Inc.
720 Pennsylvania Drive
Exton, PA 19341
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(Name and Address of Agent For Service)
(610) 646-9800
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(Telephone Number, including area code, of Agent for Service)
COPY TO:
Michael P. Gallagher, Esquire
Pepper Hamilton LLP
400 Berwyn Park
899 Cassatt Road
Berwyn, Pennsylvania 19312
(610) 640-7800
CALCULATION OF REGISTRATION FEE
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Amount Proposed Maximum Proposed Maximum
To Be Offering Price Aggregate Offering Amount Of
Title of securities to be registered Registered(1) Per Share (2) Price Registration Fee
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Common Stock, par value $.001 per share 50,000
Total 50,000 $13.59 $679,500.00 $86.09
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(1) Pursuant to Rule 416 under the Securities Act of 1933, this Registration
Statement also registers such additional shares as may hereinafter be
offered or issued to prevent dilution resulting from stock splits, stock
dividends, recapitalizations or certain other capital adjustments.
(2) Estimated solely for the purposes of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, as amended,
based on a share price of $13.59, the average of the high and low prices of
the Registrant's Common Stock as reported on the Nasdaq National Market on
February 25, 2004.
-2-
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in documents
to be given to the recipient of the securities registered hereby in accordance
with Rule 428(b)(1) under the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, as filed by Innovative Solutions and Support,
Inc. (the "Registrant") with the Securities and Exchange Commission (the
"Commission"), are incorporated by reference in this Registration Statement:
1. The Registrant's Annual Report on Form 10-K for the year
ended September 30, 2003, as amended.
2. The Registrant's Definitive Proxy Materials filed with the
Securities and Exchange Commission on January 26, 2004.
3. The description of the Registrant's Common Stock contained
in the Registrant's Registration Statement on Form 8-A filed by the Registrant
to register such securities under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement but prior to the filing of a post-effective amendment that indicates
that all securities offered hereby have been sold or that deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of each such document.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
that is also 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 hereof.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Subchapter D (Sections 1741 through 1750) of Chapter 17 of the
Pennsylvania Business Corporation Law of 1988 (the "PBCL") contains provisions
for mandatory and discretionary indemnification of a corporation's directors,
officers, employees and agents (collectively "Representatives") and related
matters.
Under Section 1741, subject to certain limitations, a corporation has
the power to indemnify directors, officers and other Representatives under
certain prescribed circumstances against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with a threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative, to which any of them
is a party or threatened to be made a party by reason of his being a
Representative of the corporation or serving at the request of the corporation
as a Representative of another corporation, partnership, joint venture, trust or
other enterprise, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation and,
with respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful.
Section 1742 provides for indemnification with respect to derivative
and corporate actions similar to that provided by Section 1741. However,
indemnification is not provided under Section 1742 in respect of any claim,
issue or matter as to which a Representative has been adjudged to be liable to
the corporation unless and only to the extent that the proper court determines
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, a Representative is fairly and reasonably
entitled to indemnity for the expenses that the court deems proper.
Section 1743 provides that indemnification against expenses is
mandatory to the extent that a Representative has been successful on the merits
or otherwise in defense of any such action or proceeding referred to in Section
1741 or 1742.
Section 1744 provides that unless ordered by a court, any
indemnification under Section 1741 or 1742 shall be made by the corporation as
authorized in the specific case upon a determination that indemnification of a
Representative is proper because the Representative met the applicable standard
of conduct, and such determination will be made by the board of directors by a
majority vote of a quorum of directors not parties to the action or proceeding;
if a quorum is not obtainable or if obtainable and a majority of disinterested
directors so directs, by independent legal counsel; or by the shareholders.
Section 1745 provides that expenses incurred by a Representative in
defending any action or proceeding referred to in Subchapter D of Chapter 17 of
the PBCL may be paid by the corporation in advance of the final disposition of
such action or proceeding upon receipt of an undertaking by or on behalf of the
Representative to repay such amount if it shall ultimately be determined that he
is not entitled to be indemnified by the corporation.
Section 1746 provides generally that except in any case where the act
or failure to act giving rise to the claim for indemnification is determined by
a court to have constituted willful misconduct or recklessness, the
indemnification and advancement of expenses provided by Subchapter D of Chapter
17 of the PBCL shall not be deemed exclusive of any other rights to which a
Representative seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding that office.
Section 1747 grants a corporation the power to purchase and maintain
insurance on behalf of any Representative against any liability incurred by him
in his capacity as a Representative, whether or not the corporation would have
the power to indemnify him against that liability under Subchapter D of Chapter
17 of the PBCL.
Sections 1748 and 1749 apply the indemnification and advancement of
expenses provisions contained in Subchapter D of Chapter 17 of the PBCL to
successor corporations resulting from consolidation, merger or division and to
service as a Representative of a corporation or an employee benefit plan.
Article VII of the Registrant's bylaws provides indemnification to
directors and officers for all actions taken by them and for all failures to
take action to the fullest extent permitted by Pennsylvania law against all
expense, liability and loss reasonably incurred or suffered by them in
connection with any threatened, pending or completed action, suit or proceeding
(including, without limitation, an action, suit or proceeding by or in the right
of the Registrant), whether civil, criminal, administrative, investigative or
through arbitration. Article VII also permits the Registrant, by action of its
board of directors, to indemnify officers, employees and other persons to the
same extent as directors. Amendments, repeals or modifications of Article VII
can only be prospective, and such changes require the affirmative vote of not
less than all of the directors then serving or the holders of a majority of the
outstanding shares of stock entitled to vote in elections of directors. Article
VII further permits the Registrant to maintain insurance, at its expense, for
the benefit of any person on behalf of whom insurance is permitted to be
purchased by Pennsylvania law against any such expenses, liability or loss,
whether or not the Regsistrant would have the power to indemnify such person
against such expense, liability or loss under Pennsylvania or other law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement.
Exhibit
No. Description
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5.1 Opinion of Pepper Hamilton LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Counsel -- included in opinion filed as Exhibit 5.1 hereto
24.1 Power of Attorney (included with signature page of this Registration Statement)
99.1 (1) 2003 Restricted Stock Plan
(1) Incorporated by reference to the registrant's Definitive Proxy Materials
filed with the Securities and Exchange Commission on January 26, 2004.
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 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;
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 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 the
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
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) 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
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 Exton, Pennsylvania on February 26, 2004.
INNOVATIVE SOLUTIONS AND SUPPORT, INC.
By:
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Geoffrey S. M. Hedrick
Chairman 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 and on the dates indicated. Each person in so signing, also makes,
constitutes and appoints Geoffrey S. M. Hedrick and James J. Reilly, and each of
them acting alone, his true and lawful attorneys-in-fact, in his name, place,
and stead to execute and cause to be filed with the securities and exchange
commission any and all amendments (including post-effective amendments) to this
registration statement with all exhibits thereto and other documents in
connection therewith.
Dated: February 26, 2004
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Geoffrey S. M. Hedrick,
Chairman and Chief Executive Officer
(Principal Executive Officer)
Dated: February 26, 2004
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James J. Reilly, Chief Financial Officer
(Principal Financial and Accounting Officer)
Dated: February 26, 2004
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Glen R. Bressner, Director
Dated: February 26, 2004
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Winston J. Churchill, Director
Dated: February 26, 2004
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Benjamin A. Cosgrove, Director
Dated: February 26, 2004
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Ivan M. Marks, Director
Dated: February 26, 2004
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Robert E. Mittelstaedt, Jr., Director
Dated: February 26, 2004
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Robert H. Rau, Director
Dated: February 26, 2004
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William C. Bowes, Director
EXHIBIT INDEX
Exhibit
No. Description
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5.1 Opinion of Pepper Hamilton LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Counsel -- included in opinion filed as Exhibit 5.1 hereto
24.1 Power of Attorney (included with signature page of this Registration Statement)
99.1 (1) 2003 Restricted Stock Plan
(1) Incorporated by reference to the registrant's Definitive Proxy Materials
filed with the Securities and Exchange Commission on January [22], 2004.