ISNS Image Sensing Systems Inc

The information specified in Items 1 and 2 of Part I of the Registration Statement on Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part I of Form S-8.  The documents containing the information specified in this Part I will be sent or given to employees of Image Sensing Systems, Inc. (the “Company”) as specified by Rule 428(b)(1) under the Securities Act.  Such documents and the documents incorporated by reference in this Registration Statement on Form S-8 pursuant to Item 3 of Part II of this form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.    

The Company hereby incorporates by reference into this Registration Statement on Form S-8 the following documents previously filed by the Company with the Securities and Exchange Commission (the “SEC”):

a.                  The description of the Company’s securities registered under Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), contained in Exhibit 4(vi) to the Company’s Annual Report on Form 10-K filed with the SEC on March 11, 2021 (File No. 001-35959);

b.             The description of the Company’s preferred stock purchase rights contained in the Company’s Form 8-A dated June 6, 2013 filed with the SEC on June 6, 2013 (File No. 001-35959), as amended by the Company’s Form 8-A/A (Amendment No. 1) filed with the SEC on August 23, 2016 (File No. 001-35959), the Company's Form 8-A/A (Amendment No. 2) filed with the SEC on March 12, 2018 (File No. 001-35959) and the Company's Form 8-A/A (Amendment No. 3) filed with the SEC on June 4, 2020 (File No. 001-35959);

c.             The Company's Current Report on Form 8-K filed with the SEC on January 8, 2021 reporting information under Item 3.01 (File No. 001-35959), solely to the extent filed and not furnished;

d.             The Company's Current Report on Form 8-K filed with the SEC on February 8, 2021 reporting information under Item 1.02 (File No. 001-35959), solely to the extent filed and not furnished;

e.             The Company's Annual Report on Form 10-K for the year ended December 31, 2020 filed with the SEC on March 11, 2021 (File No. 001-35959);

f.                  The Company’s definitive Proxy Statement filed with the SEC on March 18, 2021 (File No. 001-35959);

g.             The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2021 filed with the SEC on May 3, 2021;

h.             The Company's Current Report on Form 8-K filed with the SEC on May 5, 2021 reporting information under Item 5.07 (File No. 001-35959), solely to the extent filed and not furnished;

i.              The Company's Current Report on Form 8-K filed with the SEC on May 10, 2021 reporting information under Item 5.02 (File NO. 001-35959), solely to the extent filed and not furnished; and

j.                  All other reports filed (but not furnished) by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year ended December 31, 2020 and before filing of a post-effective amendment which indicates that all securities offered by this registration statement have been sold or which deregisters all such securities then remaining to be sold.

                All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the effective date of this Registration Statement and before the filing of a post‑effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all such securities then remaining unsold (excluding, however, any portion of such documents not deemed to be “filed” with the SEC pursuant to the rules of the SEC) 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.  In no event, however, will any information that the Company discloses under Item 2.02 or Item 7.01 of any Current Report on Form 8-K that the Company may from time to time furnish to the SEC be incorporated by reference into, or otherwise become a part of, this Registration Statement, unless otherwise indicated therein. Any statement contained in any 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 to constitute a part of this Registration Statement, except as so modified or superseded.

The shares of the Company’s common stock and the accompanying preferred stock purchase rights offered pursuant to this Registration Statement are registered under Section 12(b) of the Exchange Act.  The description of the Company’s common stock is incorporated by reference pursuant to Item 3.a. and Item 3.b. above.  

Not applicable.

Section 302A.521, Subdivision 2, of the Minnesota Business Corporation Act (the “MBCA”) provides that unless prohibited or limited by a corporation’s articles of incorporation or bylaws, the Company must indemnify a person made or threatened to be made a party to a proceeding by reason of the former or present official capacity of the person against judgments, penalties, fines, including, without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys’ fees and disbursements, incurred by the person in connection with the proceeding if, with respect to the acts or omissions of the person complained of in the proceeding, the person: (1) has not been indemnified by another organization or employee benefit plan for the same judgments, penalties, fines, including, without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys’ fees and disbursements, incurred by the person in connection with the proceeding with respect to the same acts or omissions; (2) acted in good faith; (3) received no improper personal benefit and Section 302A.255 of the MBCA (which describes the procedure to be followed in approving contracts or other transactions involving a director conflict of interest), if applicable, has been satisfied; (4) in the case of a criminal proceeding, had no reasonable cause to believe the conduct was unlawful; and (5) reasonably believed that the conduct was in the best interests of the corporation or was not opposed to the best interests of the corporation.  

Section 302A.521, Subdivision 7, of the MBCA permits a corporation to purchase and maintain insurance on behalf of a person in that person’s official capacity against any liability asserted against and incurred by the person in or arising from that capacity, whether or not the corporation would have been required to indemnify the person against the liability under the provisions of Section 302A.521 of the MBCA.  The Company maintains officers’ and directors’ liability insurance for the benefit of its officers and directors. 

Section 302A.521, Subdivision 1(c), of the MBCA defines “official capacity” as (i) with respect to a director, the position of director in a corporation, (ii) with respect to a person other than a director, the elective or appointive office or position held by an officer, member of a committee of the board, or the employment relationship undertaken by an employee of the corporation, and (iii) with respect to a director, officer, or employee of the corporation who, while a director, officer, or employee of the corporation, is or was serving at the request of the corporation or whose duties in that position involve or involved service as a director, officer, partner, trustee, governor, manager, employee, or agent of another organization or employee benefit plan, the position of that person as a director, officer, partner, trustee, governor, manager, employee, or agent, as the case may be, of the other organization or employee benefit plan.  Section 302A.521, Subdivision 1(d), of the MBCA defines “proceeding” as a threatened, pending, or completed civil, criminal, administrative, arbitration, or investigative proceeding, including a proceeding by or in the right of the corporation.

Section 7 of Article III of the Company’s Bylaws provides that the Company shall indemnify any person (including any present or future director or officer, or the heirs or legal representatives of any such director or officer) made, or threatened to be made, a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he, his testator or intestate, is or was a director or officer of the corporation or serves any other corporation in any capacity at the request of the corporation, and the corporation may advance his related expenses, in the manner and to the full extent as provided by the laws of the State of Minnesota in such case made and provided and as otherwise permitted by law.

Not applicable.

The exhibits to this Registration Statement on Form S-8 are described on the Exhibit Index in this Registration Statement on Form S-8, which is incorporated herein by reference.

(a)           Rule 415 Offering.

              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. Notwithstanding the foregoing, any increase or decrease in 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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and

(iii)   To include any material information with respect to the plan of distribution not previously described in the registration statement or any material change to such information in the registration statement.

 Provided, however, that (A) 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 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 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)         Filings Incorporating Subsequent Exchange Act Documents by Reference.

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.

(h)         Request for Acceleration of Effective Date or Filing of Registration Statement Becoming Effective Upon Filing.

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.

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 City of St. Paul, State of Minnesota on May 21, 2021.