As filed with the Securities and Exchange Commission on August 28, 2014
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VICON INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
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New York | 3559 | 11-2160665 |
(State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification Number) |
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131 Heartland Boulevard Edgewood, New York 11717 (631) 952-2288 (Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Kenneth M. Darby, Chief Executive Officer John M. Badke, Chief Financial Officer Vicon Industries, Inc. 131 Heartland Boulevard Edgewood, New York 11717 (631) 952-2288 (Name, address, including zip code, and telephone number, including area code, of agent for service) |
Copies to:
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Alison Newman Fox Rothschild LLP 100 Park Avenue New York, NY 10017 (212) 878-7997 | Charles Chestnutt Chief Executive Officer IQinVision, Inc. 33122 Valle Road San Juan Capistrano, CA 92675 (949) 369-8100 | Christopher D. Ivey Ryan C. Wilkins Stradling Yocca Carlson & Rauth, P.C. 660 Newport Center Drive Newport Beach, CA 92660 (949) 725-4121 |
Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this registration statement becomes effective and all other conditions to the proposed merger described herein have been satisfied or waived.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. x Registration No. 333-196386
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
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 the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer | | ¨ | | Accelerated filer | | ¨ |
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Non-accelerated filer | | ¨ (Do not check if a smaller reporting company) | | Smaller reporting company | | x |
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐
CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be registered | | Amount to be registered(1)(2) | | Proposed maximum offering price per share | | Proposed maximum
aggregate offering price(3) | | Amount of registration fee(4) |
Common Stock, par value $0.01 per share | | 18,450 | | N/A | | $74,907 | | $9.65 |
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(1) | Represents the maximum number of additional shares of common stock, par value $0.01 per share (“Vicon common stock”), of Vicon Industries, Inc. (“Vicon”) issuable to holders of capital stock (“IQinVision capital stock”) of IQinVision, Inc. (“IQinVision”) in the proposed merger (the “Merger”) of IQinVision with VI Merger Sub, Inc., a wholly owned subsidiary of Vicon (“Merger Sub”), with IQinVision surviving as a wholly owned subsidiary of Vicon. Vicon common stock is listed on the NYSE MKT Market under the symbol “VII.” |
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(2) | This number is based on the exchange of 4,522,335 shares of Vicon common stock for 12,929,025 shares of IQinVision capital stock pursuant to the formula set forth in the Agreement and Plan of Merger and Reorganization (the “Merger Agreement”), dated March 28, 2014, by and among Vicon, IQinVision and Merger Sub. |
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(3) | Estimated solely for purposes of calculating the registration fee required by Section 6(b) of the Securities Act, the proposed maximum aggregate offering price of Vicon common stock was calculated based upon the market value of shares of Vicon common stock in accordance with Rule 457(c) under the Securities Act as follows: the product of (i) $4.06, the average of the high and low prices per shares of Vicon common stock on August 27, 2014, as quoted on the NYSE MKT, and (ii) 18,450, the estimated maximum number of additional shares of Vicon common stock which may be exchanged in the Merger. |
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(4) | The registrant previously paid a filing fee of $1,519.86 in connection with registering 4,503,885 shares of its common stock in its Registration Statement on Form S-4 (Registration No. 333-196386) filed with the Commission on May 29, 2014. An additional registration fee of $9.65 is being paid for the registration for an additional 18,450 shares of common stock in accordance with Section 6(b) of the Securities Act, as amended, at a rate equal to $128.80 per $1,000,000 of the proposed maximum aggregate offering price. |
This Registration Statement will become effective automatically upon filing with the Commission pursuant to Rule 462(b) under the Securities Act of 1933, as amended.
Explanatory Note
Pursuant to its Registration Statement on Form S-4, as amended (File No. 333-196386), declared effective as of July 16, 2014 (the “Registration Statement”), Vicon Industries, Inc. (“Vicon”) registered 4,503,885 shares of its common stock, par value $0.01 per share. Vicon is filing this Registration Statement on Form S-4 (the “462(b) Registration Statement”) pursuant to Rule 462(b) and General Instruction K to Form S-4, both as promulgated under the Securities Act of 1933, as amended, solely to register an additional 18,450 shares of its common stock issuable to holders of capital stock of IQinVision, Inc. in the proposed merger of IQinVision, Inc. with VI Merger Sub, Inc., a wholly owned subsidiary of Vicon, with IQinVision, Inc. surviving as a wholly owned subsidiary of Vicon.
Statement of Incorporation by Reference
The contents of the Registration Statement, including all amendments and exhibits thereto and all information incorporated or deemed to be incorporated by reference therein, are hereby incorporated by reference into this 462(b) Registration Statement. Additional opinions and consents required to be filed with this 462(b) Registration Statement are listed on the Index to Exhibits attached to and filed with this 462(b) Registration Statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 21. Exhibits and Financial Statement Schedules
(a) Exhibits.
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Exhibits | |
5.1 | Opinion of Fox Rothschild LLP, regarding the legality of the additional securities being issued |
23.1 | Consent of BDO USA, LLP |
23.2 | Consent of Moss Adams LLP |
23.3 | Consent of Fox Rothschild LLP (included in Exhibit 5.1) |
23.4 | Consent of TM Capital |
23.5 | Consent of Imperial Capital |
24.1 | Power of Attorney (included herein by reference to the signature page to Vicon’s Registration Statement on Form S-4 (Registration No. 333-196386)) |
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Edgewood, State of New York, on the 28th day of August, 2014.
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| VICON INDUSTRIES, INC. | |
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By: | /s/ Kenneth M. Darby Kenneth M. Darby Chairman and Chief Executive Officer | |
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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.
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| Signature | | Title | | Date |
| /s/ Kenneth M. Darby Kenneth M. Darby | | Chairman and Chief Executive Officer (Principal Executive Officer) | | August 28, 2014 |
| /s/ John M. Badke John M. Badke | | Chief Financial Officer (Principal Financial and Accounting Officer) | | August 28, 2014 |
* | ____________________ W. Gregory Robertson | | Director | | August 28, 2014 |
* | ____________________ Arthur D. Roche | | Director | | August 28, 2014 |
* | ____________________ Bernard F. Reynolds | | Director | | August 28, 2014 |
* | ____________________ Julian A. Tiedemann | | Director | | August 28, 2014 |
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* | The undersigned is signing and executing this registration statement on behalf of each director named above pursuant to a Power of Attorney granted by each such director, which was filed with the Securities and Exchange Commission on May 29, 2014 as part of the registrant’s Registration Statement on Form S-4 (Registration No. 333-196386). |
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| /s/ Kenneth M. Darby Kenneth M. Darby Attorney in Fact | | | | |
Exhibit Index
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Exhibits | |
5.1 | Opinion of Fox Rothschild LLP, regarding the legality of the additional securities being issued |
23.1 | Consent of BDO USA, LLP |
23.2 | Consent of Moss Adams LLP |
23.3 | Consent of Fox Rothschild LLP (included in Exhibit 5.1) |
23.4 | Consent of TM Capital |
23.5 | Consent of Imperial Capital |
24.1 | Power of Attorney (incorporated herein by reference to Exhibit 24.1 of Vicon’s Registration Statement on Form S-4 (Registration No. 333-196386)) |
Exhibit 5.1
[Fox Rothschild LLP letterhead]
August 28, 2014
Vicon Industries, Inc.
131 Heartland Boulevard
Edgewood, New York 11717
Ladies and Gentlemen:
We have acted as legal counsel to Vicon Industries, Inc., a New York corporation (“Vicon”), in connection with the registration statement on Form S-4 (the “Registration Statement”), filed by Vicon with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on the date hereof, to register an additional [18,450] shares of Vicon’s common stock, $0.01 par value per share (the “Additional Shares”), pursuant to Rule 462(b) under the Securities Act, in connection with the merger of VI Merger Sub, Inc., a California corporation and a direct, wholly owned subsidiary of Vicon (“Merger Sub”), with and into IQinVision, Inc. (“IQinVision”) with IQinVision continuing as the surviving company and becoming a direct, wholly owned subsidiary of Vicon (the “Merger”) pursuant to the terms of that certain Agreement and Plan of Merger and Reorganization, dated March 28, 2014, among Vicon, Merger Sub, and IQinVision (as amended from time to time, the “Merger Agreement”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related proxy statement/prospectus/consent solicitation, other than as expressly stated herein with respect to the issuance of the Additional Shares.
In rendering this opinion letter, we have examined copies of the following documents: (a) Vicon’s Certificate of Incorporation, as amended to date, (b) Vicon’s Bylaws, as amended to date, (c) the Merger Agreement, (d) the Registration Statement, and (e) relevant resolutions of the board of directors of Vicon. We have also examined such other documents and made such other investigations as we have deemed necessary for the purposes of this opinion letter. As to facts material to the opinions and assumptions expressed herein, we have relied upon oral or written statements and representations of officers and other representatives of Vicon and others.
Based upon the foregoing, and subject to the assumptions, qualifications and limitations set forth herein, we are of the opinion that the Additional Shares have been duly authorized and that, when issued and delivered in accordance with the terms and conditions of the Merger Agreement and as contemplated by the Registration Statement (including all Exhibits thereto), the Additional Shares will be validly issued, fully paid and non-assessable.
The opinion expressed herein is limited by: (i) bankruptcy, insolvency, reorganization, fraudulent transfer and fraudulent conveyance, voidable preference, moratorium or other similar laws and related regulations and judicial doctrines from time to time in effect relating to or affecting creditors’ rights generally, and (ii) general equitable principles and public policy considerations, whether such principles and considerations are considered in a proceeding at law or at equity.
The foregoing opinion is limited to the New York Business Corporation Law (the “NYBCL”) and we express no opinions with respect to the laws of any other jurisdiction. We do not express any opinion with respect to the laws of any jurisdiction other than the NYBCL or as to the effect of any other laws on the opinion herein stated.
We consent to the filing of this as an exhibit to the Registration Statement and to the use of our name wherever appearing in the Registration Statement and any amendments thereto, including without limitation under the heading “Legal Matters” in the proxy statement/prospectus/ consent solicitation included therein. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act, or the rules and regulations promulgated thereunder.
Sincerely,
/s/ Fox Rothschild LLP
Fox Rothschild LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
Vicon Industries, Inc.
Edgewood, New York
We hereby consent to the incorporation by reference in this Registration Statement on Form S-4, filed pursuant to rule 462(b) of the Securities Act of 1933, of our report dated December 30, 2013 relating to the consolidated financial statements of Vicon Industries, Inc. appearing in the Company’s Annual Report on Form 10-K for the year ended September 30, 2013, and incorporated by reference in the registration statement on Form S-4, as amended (File No. 333-196386).
/s/ BDO USA, LLP
Melville, New York
August 28, 2014
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in this Registration Statement on Form S-4 of Vicon Industries, Inc., filed pursuant to Rule 462(b) of the Securities Act of 1933, to register 18,450 additional shares of common stock, of our report dated March 4, 2014 with respect to the financial statements of IQinVision, Inc. as of and for the years ended December 31, 2013 and 2012, and to the reference to us under the heading “Experts”, appearing in Vicon Industries, Inc.’s previously filed Form S-4 Registration Statement (File No. 333-196386), which is incorporated by reference into this Registration Statement on Form S-4.
/s/ Moss Adams LLP
San Diego, California
August 28, 2014
Exhibit 23.4
August 28, 2014
Vicon Industries, Inc.
131 Heartland Boulevard
Edgewood, New York 11717
Ladies and Gentlemen:
We hereby consent to the use in the Registration Statement on Form S-4 of Vicon Industries, Inc. to which this consent is attached as an exhibit (the “Registration Statement”), and in the proxy statement/prospectus/consent solicitation of Vicon Industries, Inc. and IQinVision, Inc., which is incorporated by reference into the Registration Statement, of our opinion dated March 28, 2014 enclosed as Annex B to such proxy statement/prospectus/consent solicitation, and to the description of such opinion and to the references to our name contained therein.
In giving the foregoing consents, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended (the “Securities Act”), or the rules and regulations promulgated thereunder, nor do we admit that we are experts with respect to any part of such Registration Statement within the meaning of the term “experts” as used in the Securities Act or the rules and regulations promulgated thereunder.
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| Very truly yours, |
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| /s/ TM Capital Corp. |
| TM Capital Corp. |
Exhibit 23.5
August 27, 2014
IQinVision, Inc.
33122 Valle Road
San Juan Capistrano, CA 92675
We hereby consent to the use, in the Registration Statement on Form S-4 of Vicon Industries, Inc. to which this consent is attached as an exhibit (the “Registration Statement”), and in the proxy statement/prospectus/consent solicitation of Vicon Industries, Inc. and IQinVision, Inc., which is part of the Registration Statement, of our opinion dated March 26, 2014 enclosed as Annex C to such proxy statement/prospectus/consent solicitation, and to the description of such opinion and to the references to our name contained therein.
In giving the foregoing consents, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended (the “Securities Act”), or the rules and regulations promulgated thereunder, nor do we admit that we are experts with respect to any part of the Registration Statement within the meaning of the term “experts” as used in the Securities Act or the rules and regulations promulgated thereunder.
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| Very truly yours, |
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| /s/ Imperial Capital, LLC |
| Imperial Capital, LLC |
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