1
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) (I.R.S. Employer Identification No.)
125 Technology Park, Lake Mary, Florida 32746
(Address of Principal Executive Offices) (Zip Code)
FARO TECHNOLOGIES, INC. 1997 EMPLOYEE STOCK OPTION 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 750,000 (2) $8,990,500 $2,725
========================================================================================================================
(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 (i) 80,000 shares subject to
outstanding options having an exercise price of $13.20 per share, (ii)
248,000 shares subject to outstanding options having an exercise price of
$12.00 per share, and (iii) 422,000 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.
2
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
II-1
3
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 Employee Stock Option Plan (filed as Exhibit 10.2 to the Registrant's
Registration Statement on Form S-1 (No. 333-32983) and incorporated herein by reference)
4.2 Form of Stock Option Agreement for 1997 Employee Stock Option Plan (filed herewith)
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.
II-2
4
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 14, 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 H. Schipper Director November 17, 1997
------------------------------------------------
Norman H. Schipper
/s/ Martin Koshar Director November 14, 1997
------------------------------------------------
Martin Koshar
Director November __, 1997
------------------------------------------------
Andre Julien
II-3
1
EXHIBIT 4.2
FORM OF
FARO TECHNOLOGIES, INC.
1997 EMPLOYEE STOCK OPTION PLAN
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Option Agreement") is entered into as of
the _________ day of _________________, __________, by and between Faro
Technologies, Inc., a Florida corporation (the "Corporation"), and
_________________________________________, an employee of the Corporation or
one of its subsidiaries (the "Optionee").
WHEREAS, the board of directors of the Corporation (the "Board") has
duly adopted that certain 1997 Employee Stock Option Plan (the "Plan"), which
authorizes the Corporation to grant to eligible individuals options for the
purchase of shares of voting common stock, par value $0.001 per share, of the
Corporation (the "Stock"); and
WHEREAS, the Corporation has determined that it is desirable and in
its best interests to grant to the Optionee, pursuant to the Plan, an option to
purchase a certain number of shares of Stock in order to provide the Optionee
with an incentive to advance the interests of the Corporation and its
subsidiaries, all according to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. GRANT OF OPTION. Subject to the terms of the Plan (attached
hereto as Exhibit A, the terms of which are incorporated herein by this
reference), the Corporation hereby grants to the Optionee the right and option
(the "Option") to purchase from the Corporation, on the terms and subject to
the conditions set forth herein and in the Plan, _______________ shares of
Stock. The Option shall constitute an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), to the fullest extent permissible thereunder, taking into account such
Option and any other incentive stock options issued to the Optionee under the
Plan and all other plans of the Optionee's employer corporation and its parent
and subsidiary corporations within the meaning of Section 422(d) of the Code,
in the order in which the Option issued hereunder and any such other incentive
stock options were granted. Any portion of the Option issued hereunder which
is not treated as an incentive stock option shall be treated as a nonqualified
stock option. The date of grant of the Option is ___________________________
(the "Grant Date"), the date on which the grant of the Option was approved
in accordance with the terms and conditions of the Plan.
2. PRICE. The purchase price (the "Option Price") for the shares
of Stock subject to the Option granted by this Option Agreement is
$________________ per share.
3. EXERCISE OF OPTION. Except as otherwise provided herein and
in the Plan, the Option granted pursuant to this Option Agreement shall be
subject to exercise as follows:
2
3(a). TIME OF EXERCISE OF OPTION. The Optionee may exercise the
Option (subject to the limitations on exercise set forth in Section 3(c)
hereof), in whole or in part, as follows: (i) the Option may not be exercised
to any extent prior to one year following the Grant Date; and (ii) the Option
may be exercised to the extent of 33-1/3% of the shares of Stock specified in
Section 1 hereof after one year following the Grant Date and may be exercised
to the extent of 33-1/3% of the shares of Stock specified in Section 1 hereof
after each of the second and third years following the Grant Date.
3(b). TERMINATION OF EMPLOYMENT, DEATH OR DISABILITY. In the event
of the death, disability or other termination of employment of the Optionee,
the Option shall be exercisable to the extent provided in Section 5 of the
Plan.
3(c). LIMITATIONS ON EXERCISE OF OPTION. If the Optionee owned
capital stock of the Company possessing more than 10% of the total combined
voting power or value of all classes of capital stock of the Company as of the
Grant Date (a "10% Shareholder"), then in no event may the Option be exercised,
in whole or in part, after five (5) years following the Grant Date. If the
Optionee is not a 10% Shareholder, then in no event may the Option be
exercised, in whole or in part, after ten (10) years following the Grant Date.
In no event may the Option be exercised for a fractional share.
4. METHOD OF EXERCISE OF OPTION. The method of exercise of the
Option is set forth in Section 7 of the Plan.
5. EFFECT OF CHANGES IN CAPITALIZATION. Section 6 of the Plan
shall apply to the Option.
6. WITHHOLDING OF TAXES. The parties hereto recognize that the
Corporation or any subsidiary thereof may be obligated to withhold federal and
local income taxes and Social Security taxes to the extent that the Optionee
realizes ordinary income in connection with the exercise of the Option or in
connection with certain dispositions of any shares of Stock acquired by
exercise of the Option. The Optionee agrees that the Corporation or any
subsidiary thereof may withhold amounts needed to cover such taxes from payment
otherwise due and owing to the Optionee, and also agrees that upon demand the
Optionee will promptly pay to the Corporation or any subsidiary thereof having
such obligation any additional amounts as may be necessary to satisfy such
withholding tax obligation. Such payment shall be made in cash or by certified
check payable to the order of the Corporation or a subsidiary thereof. With
the prior approval of the Corporation, however, which may be withheld by the
Corporation in its sole discretion, the Optionee may elect to satisfy such
obligations, in whole or in part, (a) by causing the Corporation to withhold
shares of Stock otherwise issuable pursuant to the exercise of the Option or
(b) by delivering to the Corporation shares of Stock already owned by the
Optionee. The shares so delivered or withheld shall have a fair market value
equal to such withholding obligations. The fair market value of the shares
used to satisfy such withholding obligation shall be determined by the
Corporation in accordance with the Plan as of the date that the amount of tax
to be withheld is to be determined.
2
3
7. DELIVERY OF SHARES. Shares of Stock purchased by the Optionee
upon the partial or complete exercise of the Option shall be delivered to the
Optionee upon notice of issuance given by the Corporation to its transfer
agent.
8. INTERPRETATION OF THIS OPTION AGREEMENT. In the event that
there is any inconsistency between the provisions of this Agreement and of the
Plan, the provisions of the Plan shall govern.
9. GOVERNING LAW. This Option Agreement is executed pursuant to
and shall be governed by the internal laws of the State of Florida without
reference to the conflict of law principles thereof.
10. NOTICE. Any notice hereunder by the Optionee to the
Corporation shall be in writing and shall be deemed duly given (i) when mailed
or delivered to the Corporation at its principal office, addressed to the
attention of the Board, or if so mailed or delivered to such other address as
the Corporation may hereafter designate by notice to the Optionee; or (ii) when
sent by facsimile, telecopy, telex or other form of written electronic
transmission, upon confirmation of receipt thereof by the Corporation. Any
notice or delivery hereunder by the Corporation or its transfer agent to the
Optionee shall be in writing and shall be deemed duly given: (i) when mailed
or delivered to the Optionee at the address specified below by the Optionee for
such purpose, or if so mailed or delivered to such other address as the
Optionee may hereafter designate by written notice given to the Corporation; or
(ii) when sent by facsimile, telecopy, telex or other form of written
electronic transmission, upon confirmation of receipt thereof by the Optionee.
11. ENTIRE AGREEMENT. This Option Agreement (including Exhibit A
hereto) constitutes the entire agreement and supersedes all prior
understandings and agreements, written or oral, of the parties hereto with
respect to the subject matter hereof. Neither this Option Agreement nor any
term hereof may be amended, waived, discharged or terminated except by a
written instrument signed by the Corporation and the Optionee; provided,
however, that the Corporation unilaterally may waive any provision hereof in
writing to the extent that such waiver does not adversely affect the interests
of the Optionee hereunder or otherwise cause the Option granted hereunder not
to qualify as an "incentive stock option" within the meaning of Section 422 of
the Code (if applicable), but no such waiver shall operate as or be construed
to be a subsequent waiver of the same provision or a waiver of any other
provision hereof.
12. SUCCESSORS AND ASSIGNS. This Option Agreement shall be
binding upon, inure to the benefit of, and be enforceable by the respective
successors, personal representatives and permitted assigns of the parties
hereto.
13. COUNTERPARTS. This Option Agreement may be executed in one or
more counterparts, each of which shall constitute an original, but all of which
together shall be one and the same instrument.
3
4
14. FACSIMILE SIGNATURE. This Option Agreement may be executed by
either of the parties (the "Originating Party") and transmitted to the other
party (the "Receiving Party") by facsimile, telecopy, telex or other form of
written electronic transmission, and, upon confirmation of receipt thereof by
the Receiving Party, this Option Agreement shall be deemed to have been duly
executed by the Originating Party. Upon the request of the Receiving Party,
the Originating Party shall provide the Receiving Party with an executed
duplicate original of this Option Agreement.
15. TAX CONSEQUENCES. The Optionee should consult his or her tax
advisor regarding the tax consequences relating to the Option, including the
exercise of the Option and the sale of the stock purchased upon such exercise,
and the Corporation makes no representations regarding such tax consequences
nor the ability for the Option or any part thereof to constitute an incentive
stock option within the meaning of Section 422 of the Code.
IN WITNESS WHEREOF, the parties hereto have duly executed this Stock
Option Agreement, or caused this Stock Option Agreement to be duly executed on
their behalf, as of the day and year first above written.
FARO TECHNOLOGIES, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
OPTIONEE:
________________________________________
(Signature)
________________________________________
Printed Name
ADDRESS FOR NOTICE TO OPTIONEE:
________________________________________
Name
________________________________________
Street
________________________________________
City State Zip Code
4
1
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 Employee Stock Option 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 750,000 shares of common stock par value $.001 issuable
pursuant to the FARO Technologies, Inc. 1997 Employee Stock Option 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
1
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
