As filed with the Securities and Exchange Commission on September 8, 2009
Registration No.
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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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PASSUR AEROSPACE, INC.
(Exact Name of Registrant as Specified in its Charter)
New York 11-2208938
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(State or Other (I.R.S. Employer
Jurisdiction of Identification No.)
Incorporation or
Organization)
47 Arch Street, Greenwich, CT, 06830
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(Address of Principal Executive Offices) (Zip Code)
2009 Stock Incentive Plan
(Full Title of Plans)
James T. Barry
Passur Aerospace, Inc.
Chief Executive Officer
47 Arch Street
Greenwich, CT 06830
(203) 622-4086
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Agent For Service)
Copy to:
Dennis J. Block, Esq.
Cadwalader, Wickersham & Taft LLP
One World Financial Center
New York, New York 10281
(212) 504-6000
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Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer or a smaller reporting
company. See definitions of "large accelerated filer," "accelerated filer" and
"smaller reporting company" in Rule 12b-2 of the Exchange Act.
[ ] Large accelerated filer [ ] Accelerated filer
[ ] Non-accelerated filer [X] Smaller reporting company
(Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of each class of Amount to be offering price aggregate offering Amount of
securities to be registered registered(1) per share price registration fee
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Common Stock, par value, 500,000 shares (2) $2.10(3) 1,050,000 $58.59
..01 per share
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Total 500,000 $58.59
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(1) Plus such indeterminate number of shares pursuant to Rule 416 of the
Securities Act of 1933, as amended (the "Securities Act"), as may be
issued in respect of stock dividends, recapitalizations, stock splits,
reorganizations, mergers, consolidations, combinations or exchanges of
shares and similar transactions.
(2) Represents the registration of an aggregate of 500,000 shares of common
stock of PASSUR Aerospace, Inc., issuable upon exercise of options
reserved for grant under the 2009 Stock Incentive Plan (the "Plan").
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and 457(c) under the Securities Act, based on the
average of the high and low sales price of the common stock as reported on
the OTC Bulletin Board on September 4, 2009.
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EXPLANATORY NOTE
PASSUR Aerospace, Inc. (the "Company" or "we") has prepared this
Registration Statement in accordance with the requirements of Form S-8 under the
Securities Act, to register future issuances of up to 500,000 shares of Common
Stock under the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I of Form S-8 will be
sent or given to individuals eligible to participate in the 2009 Plan as
specified by Rule 428(b)(1) of the Securities Act. Those documents and the
documents incorporated by reference into this Registration Statement, taken
together, constitute prospectuses that meet the requirements of Section 10(a) of
the Securities Act.
The Company will deliver or cause to be delivered promptly, without charge,
to each person to whom information is required to be delivered, upon written or
oral request, a copy of the information that is incorporated by reference
pursuant to Item 3 of this Registration Statement and any other documents
required to be delivered pursuant to Rule 428(b).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents, as filed with the Securities and Exchange
Commission (the "Commission") by Company are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K and the Company's Annual
Report on Form 10-K/A (including the portions of the Company's proxy
statement incorporated by reference therein) for the fiscal year
ended October 31, 2008, filed with the Commission on January 29,
2009 and March 16, 2009, respectively;
(2) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended January 31, 2009, filed with the Commission on March 17, 2009;
(3) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended April 30, 2009, filed with the Commission on June 15, 2009;
(4) The Company's Current Reports on Form 8-K, filed with the Commission
on February 3, 2009 and April 13, 2009; and
(5) The description of the Company's Common Stock contained in the
Company's Form 8-A, filed with the Commission on March 4, 1974.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
subsequent to the effective date of this Registration Statement and prior to the
filing of a post-effective amendment that indicates that all securities offered
have been sold or that deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in the Registration Statement and to
be part thereof from the date of filing 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 other subsequently filed document which also is or 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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Certain legal matters with respect to the validity of the shares of common
stock offered by this prospectus will be passed upon for us by Cadwalader,
Wickersham & Taft LLP, New York, New York.
Item 6. Indemnification of Directors and Officers.
Reference is made to Section 722 of the New York Corporation Law ("BCL")
which provides for indemnification of directors and officers in certain
circumstances.
Section 722 of the BCL permits indemnification of officers, directors, and
other corporate agents under certain circumstances and subject to certain
limitations. The Company's certificate of incorporation and by-laws provide that
it shall indemnify its directors and officers, and anyone who is or was serving
at the Company's request as a director, officer, member, employee, fiduciary, or
agent of another corporation or of a partnership, joint venture,
trust or other enterprise, to the fullest extent permitted under New York law.
These indemnification provisions may be sufficiently broad to permit
indemnification of its executive officers and directors for liabilities
(including reimbursement of expenses incurred) arising under the Securities Act.
The Company maintains directors' and officers' liability insurance against
any actual or alleged error, misstatement, misleading statement, act, omission,
neglect or breach of duty by any director or officer, excluding certain matters
including fraudulent, dishonest or criminal acts or self dealing.
For the undertaking with respect to indemnification, see Item 9.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits
Exhibit No. Description
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4.1 Form of Certificate of Common Stock (incorporated by reference
to Exhibit 4 (a) of the Company's Registration Statement on
Form S-1 (Registration No. 2-45130)).
4.2 The Company's 2009 Stock Incentive Plan (incorporated by
reference to Exhibit 10.1 of the Company's Current Report on
Form 8-K filed on April 13, 2009).
*5.1 Opinion of Cadwalader, Wickersham & Taft LLP as to the
legality of the securities being registered.
*23.1.1 Consent of Cadwalader, Wickersham & Taft LLP (included in
Exhibit 5.1 above).
*23.1.2 Consent of BDO Seidman, LLP, dated as of September 8, 2009.
*24.1 Power of Attorney (included on the signature pages to the
Registration Statement).
*Filed herewith
Item 9. Undertakings
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 the 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 end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the 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 this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 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.
(4) 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 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 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.
(5) 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 foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 City of New York, State of New York, on this 2nd day of
September, 2009.
PASSUR AEROSPACE, INC.
By: /s/ James T. Barry
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James T. Barry,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints James T. Barry and Jeffrey P. Devaney, and
each of them, his or her true and lawful attorneys-in-fact and agents, each
acting alone, with full power of substitution and resubstitution, for him or her
and in his or her name, place and stead, in any and all capacities, to sign any
and all amendments, including post-effective amendments or supplements to this
Registration Statement, and to file the same, with all exhibits thereto and all
other documents in connection therewith, with the Commission, granting unto each
of said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite, necessary and appropriate to be done
with respect to this Registration Statement or any amendments or supplements
hereto, as fully to all intents and purposes as he or she might or could do in
person, and hereby ratifies and confirms all said attorneys-in-fact and agents,
and each of them, or his substitute or substitutes, may lawfully do or cause to
be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
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/s/ James T. Barry Chief Executive Officer (Principal Executive September 2, 2009
- ----------------------------------------- Officer) and Director
James T. Barry
/s/ Jeffrey P. Devaney Chief Financial Officer (Principal Financial September 2, 2009
- ----------------------------------------- Officer and Principal Accounting Officer)
Jeffrey P. Devaney
/s/ G.S. Beckwith Gilbert Chairman of the Board of Directors September 2, 2009
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G.S. Beckwith Gilbert
/s/ John R. Keller Executive Vice President and Director September 2, 2009
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John R. Keller
/s/ Bruce N. Whitman Director September 2, 2009
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Bruce N. Whitman
/s/ Paul L. Graziani Director September 2, 2009
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Paul L. Graziani
/s/ Richard R. Schilling Jr. Director September 2, 2009
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Richard R. Schilling, Jr.
/s/ James J. Morgan Director September 2, 2009
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James J. Morgan
EXHIBIT INDEX
Exhibit No. Description
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4.1 Form of Certificate of Common Stock (incorporated by reference
to Exhibit 4 (a) of the Company's Registration Statement on
Form S-1 (Registration No. 2-45130)).
4.2 The Company's 2009 Stock Incentive Plan (incorporated by
reference to Exhibit 10.1 of the Company's Current Report on
Form 8-K filed on April 13, 2009).
*5.1 Opinion of Cadwalader, Wickersham & Taft LLP as to the
legality of the securities being registered.
*23.1.1 Consent of Cadwalader, Wickersham & Taft LLP (included in
Exhibit 5.1 above).
*23.1.2 Consent of BDO Seidman, LLP, dated as of September 8, 2009.
*24.1 Power of Attorney (included on the signature pages to the
Registration Statement).
*Filed herewith