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As filed with the Securities and Exchange Commission on November 26, 1997
Registration No. 333-____________
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FARO TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its charter)
Florida 59-3157093
- ---------------------------------- -------------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
125 Technology Park, Lake Mary, Florida 32746
(Address of Principal Executive Offices) (Zip Code)
FARO TECHNOLOGIES, INC. 1997 NON-EMPLOYEE DIRECTORS' FEE PLAN
(Full Title of the Plan)
GREGORY A. FRASER, PH.D.
Executive Vice President and Chief Financial Officer
FARO Technologies, Inc.
125 Technology Park, Lake Mary, Florida 32746, Telephone: (407) 333-9911
(Name and Address of Agent For Service)
(407) 333-9911
(Telephone Number, Including Area Code, of Agent For Service)
COPY TO:
MARTIN A. TRABER, ESQ.
Foley & Lardner
100 North Tampa Street, Suite 2700, Tampa, Florida 33602,
Telephone: (813) 229-2300
CALCULATION OF REGISTRATION FEE
=============================================================================================================================
Title of
Each Class of Proposed Maximum Proposed Maximum
Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1) Per Share Offering Price(2) Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value 250,000 (2) $2,937,500 $891
=============================================================================================================================
(1) Plus an indeterminate number of shares which may be issued as a result of
anti-dilution provisions contained in the Plan.
(2) Pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as
amended, the amounts shown are based on 250,000 shares reserved for future
grants under the Plan, the registration fee for which has been calculated
using $11.75, the average of the high and low prices of the
Registrant's Common Stock on November 20, 1997 as reported on the Nasdaq
National Market.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities
and Exchange Commission are hereby incorporated herein by reference:
(1) The Registrant's prospectus dated September 17, 1997
(Registration No. 333-32983);
(2) Quarterly Report on Form 10-Q for the quarter ended September 30,
1997; and
(3) The description of the Registrant's Common Stock, par value $.001
per share set forth under the caption "Description of Registrant's Securities
to be Registered" in the Company's Registration Statement on Form 8-A (No.
0-23081) filed under the Securities Exchange Act of 1934.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
shares of Common Stock being offered hereby have been sold or which deregisters
all shares of Common Stock then remaining unsold shall be deemed incorporated
by reference in this registration statement and to be a part hereof from the
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Florida Business Corporation Act (the "Florida Act") permits a
Florida corporation to indemnify a present or former director or officer of the
corporation (and certain other persons serving at the request of the
corporation in related capacities) for liabilities, including legal expenses,
arising by reason of service in such capacity if such person shall have 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 in any criminal proceeding if such
person had no reasonable cause to believe his conduct was unlawful. However, in
the case of actions brought by or in the right of the corporation, no
indemnification may be made with respect to any matter as to which such
director or officer shall have been adjudged liable, except in certain limited
circumstances.
The Registrant's Articles of Incorporation and Bylaws provide that the
Registrant shall indemnify directors and executive officers to the fullest
extent now or hereafter permitted by the Florida Act. In addition, the Company
may enter into Indemnification Agreements with its directors and executive
officers in which the Registrant may agree to indemnify such persons to the
fullest extent now or hereafter permitted by the Florida Act.
The indemnification provided by the Florida Act, and the Registrant's
Bylaws is not exclusive of any other rights to which a director or officer may
be entitled. The general effect of the foregoing provisions may be to reduce
the circumstances which an officer or director may be required to bear the
economic burden of the foregoing liabilities and expense.
The Registrant has a standard policy of directors' and officers'
liability insurance covering directors and officers of the corporation with
respect to liabilities incurred as a result of their service in such
capacities.
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 Articles of Incorporation or Bylaws of the
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Registrant 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 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 the 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
4.1 FARO Technology, Inc. 1997 Non-Employee Directors' Fee Plan (filed as Exhibit 10.4 to the Registrant's
Registration Statement on Form S-1 (No. 333-32983) and incorporated herein by reference)
5 Opinion of Foley & Lardner as to the legality of the securities to be issued (filed herewith)
23.1 Consent of Foley & Lardner (contained in its opinion filed herewith as Exhibit 5 and incorporated
herein by reference)
23.2 Consent of Deloitte & Touche LLP (filed herewith)
24.1 Power of Attorney (found in Part II on Page II-3)
ITEM 9. UNDERTAKINGS.
The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (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 the 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Orlando, and the State of Florida on this 24th day of November, 1997.
FARO TECHNOLOGIES, INC.
By: /s/ Gregory A. Fraser
---------------------------------
GREGORY A. FRASER
Executive Vice President,
Secretary, Treasurer,
Chief Financial 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 whose signature appears
below constitutes and appoints Simon Raab and Gregory A. Fraser, and each of
them individually, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and any and all
Registration Statements filed pursuant to Rule 462(b) under the Securities Act
of 1933, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or either of them, may lawfully do or
cause to be done by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ Simon Raab Chairman of the Board, President, Chief November 24, 1997
------------------------------------------------ Executive Officer (Principal Executive
Simon Raab Officer), and Director
/s/ Gregory A. Fraser Executive Vice President, Secretary, November 13, 1997
------------------------------------------------ Treasurer, Chief Financial Officer
Gregory A. Fraser (Principal Financial and Accounting
Officer), and Director
Director November __, 1997
------------------------------------------------
Hubert d'Amours
/s/ Philip Colley Director November 14, 1997
------------------------------------------------
Philip Colley
/s/ Alexandre Raab Director November 24, 1997
------------------------------------------------
Alexandre Raab
/s/ Norman Schipper Director November 17, 1997
------------------------------------------------
Norman H. Schipper
/s/ Martin Koshar Director November 14, 1997
------------------------------------------------
Martin Koshar
Director November __, 1997
------------------------------------------------
Andre Julien
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EXHIBIT 5
FOLEY & LARDNER
100 NORTH TAMPA STREET, SUITE 2700
TAMPA, FLORIDA 33602
TELEPHONE (813) 229-2300
FACSIMILE (813) 221-4210
November 26, 1997
FARO Technologies, Inc.
125 Technology Park
Lake Mary, Florida 32746
Re: Registration Statement on Form S-8 Relating to Shares of
Common Stock Issuable Pursuant to the FARO Technologies, Inc.
1997 Non-Employee Directors' Fee Plan
Ladies and Gentlemen:
This opinion is being furnished in connection with the Registration
Statement on Form S-8 (the "Registration Statement") of FARO Technologies, Inc.
(the "Company"), under the Securities Act of 1933, as amended, for the
registration of 250,000 shares of common stock par value $.001 issuable
pursuant to the FARO Technologies, Inc. 1997 Non-Employee Directors' Fee Plan
(the "Plan"). The common stock issuable pursuant to the Plan is referred to
herein as the "Shares."
We have examined and are familiar with the following: (a) Articles of
Incorporation of the Company, as amended, as filed in the Office of the
Secretary of State of the State of Florida; (b) Bylaws of the Company; (c)
proceedings of the Board of Directors and shareholders of the Company in
connection with the adoption of the Plan; and (d) such other documents, Company
records and matters of law as we have deemed to be pertinent.
Based on the foregoing, it is our opinion that:
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Florida.
2. The Shares have been duly authorized and when issued in accordance
with the terms of the Plan will be duly and validly issued, fully paid and
nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit 5 in the
Registration Statement. In giving this consent, we do not thereby admit that
we come within the category of persons whose consent is required under Section
7 of the Securities Act of 1933, as amended, or the rules or regulations of the
Securities and Exchange Commission promulgated thereunder.
FOLEY & LARDNER
/s/ Martin A. Traber
--------------------------
Martin A. Traber
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of FARO Technologies, Inc. on Form S-8 of our report dated
February 24, 1997 (September 10, 1997 as to Note 11), appearing in
FARO Technologies, Inc.'s Prospectus, dated September 17, 1997 (Registration
No. 333-32983).
/s/ Deloitte & Touche LLP
-----------------------------
DELOITTE & TOUCHE LLP
Jacksonville, Florida
November 25, 1997
