UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of
report (Date of the earliest event reported) February 19, 2009
FARO
TECHNOLOGIES, INC.
(Exact
Name of Registrant as Specified in Its Charter)
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Florida
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0-20381
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59-3157093
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(State
or Other Jurisdiction
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(Commission
File
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(IRS
Employer
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of
Incorporation)
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Number)
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Identification
No.)
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125 Technology Park, Lake Mary,
Florida
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32746
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(Address
of Principal Executive Offices)
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(Zip
Code)
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(407)
333-9911
(Registrant’s
Telephone Number, Including Area Code)
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230
.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item 8.01 Other Items
On
November 12, 2008, the parties to the derivative action filed by an alleged
shareholder of FARO Technologies, Inc. (the “Company”) in the U.S. District
Court for the Middle District of Florida against certain of the Company’s
current and former directors, as defendants, and against the Company, as a
nominal defendant (the “Derivative Action”) executed a Memorandum of
Understanding of the material terms of a proposed settlement of the Derivative
Action. On January 21, 2009, the parties filed with the court a
Stipulation of Settlement (the “Stipulation”) seeking the court’s preliminary
and final approval of the terms of the proposed settlement. Pursuant
to those terms, the Company shall adopt certain corporate governance policies
for a period of three years from the effective date of those policies, and the
issuer of the Company’s Executive Liability and Entity Securities Liability
insurance policy applicable to the Derivative Action will pay $400,000 to the
plaintiff’s counsel for their fees and expenses. That sum is within
the coverage limit of the policy and accordingly has no effect on the Company’s
financial results.
On
February 13, 2009, the court granted preliminary approval of the
settlement. A hearing will be held on April 23, 2009 to determine
whether the terms and conditions of the settlement proposed in the Stipulation
should be approved as fair, reasonable and adequate. If the court
approves the settlement, a judgment will be entered dismissing the Derivative
Action, with prejudice, as against each defendant.
The
Notice of Pendency of Settlement of Shareholder Derivative Litigation (the
“Notice”) is attached hereto as Exhibit 99.1. A copy of the press
release announcing the Notice is attached hereto as Exhibit 99.2.
Item 9.01 Financial Statements
and Exhibits.
(d)
Exhibits.
99.1 Notice
of Pendency of Settlement of Shareholder Derivative Litigation
99.2 Press
Release dated February 19, 2009
Signature
Pursuant to the requirements of the
Securities Exchange Act of 1934, the Company has duly caused this report to be
signed on its behalf by the undersigned thereunder duly authorized.
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FARO Technologies, Inc.
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(Registrant)
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Date: February 19,
2009
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/s/ Jay Freeland
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Jay
Freeland
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Chief
Executive Officer
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EXHIBIT
INDEX
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Description
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Notice
of Pendency of Settlement of Shareholder Derivative
Litigation
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99.2
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Press
Release dated February 19,
2009
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UNITED
STATES DISTRICT COURT
MIDDLE
DISTRICT OF FLORIDA
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DAVID
ALVERSON, Derivatively On Behalf
of
Nominal Defendant FARO
TECHNOLOGIES,
INC.,
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Case
No. 6:08-cv-45-ACC-DAB
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Plaintiff,
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v.
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JOHN
CALDWELL,
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STEPHEN
COLE,
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HUBERT
D’AMOURS,
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GREGORY
A. FRASER,
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ANDRE
JULIEN and SIMON RAAB,
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Defendants,
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and
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FARO
TECHNOLOGIES, INC.,
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Nominal Defendant.
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NOTICE OF PENDENCY OF
SETTLEMENT OF SHAREHOLDER DERIVATIVE
LITIGATION
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TO:
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ALL
RECORD AND BENEFICIAL OWNERS OF FARO TECHNOLOGIES, INC. (“FARO” OR THE
“COMPANY”) COMMON STOCK ON OR BEFORE JANUARY 21, 2009 (EACH A “FARO
STOCKHOLDER”)
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PLEASE
TAKE NOTICE that the above-captioned shareholder derivative litigation (the
“Action”), is being settled. The terms of the proposed settlement of
the Action (the “Settlement”) are set forth in a Stipulation of Settlement dated
January 21, 2009 (the “Stipulation”). This notice should be read in
conjunction with, and is qualified in its entirety by reference to, the text of
the Stipulation, which has been filed with the Court. All capitalized
terms herein have the same meanings as set forth in the
Stipulation.
The terms
of the Settlement set forth in the Stipulation include: (1) the adoption and/or
implementation of a variety of corporate governance measures, including, but not
limited to, director independence, officer and director stock ownership
guidelines, requirements for director education, and the appointment of a new
independent director; and (2) FARO’s payment of Plaintiffs’ Counsel’s attorney
fees and expenses in the amount of $400,000, subject to Court
approval.
A hearing
(the “Settlement Hearing”) will be held for the Action on April 23, 2009 at 9:15
a.m. before the Hon. Anne C. Conway at the United States District Court for the
Middle District of Florida, 401 West Central Boulevard, Courtroom 6A, Orlando,
Florida 32801-0120, to determine: (1) whether the terms of the Settlement should
be approved as fair, reasonable and adequate; and (2) whether the above-entitled
action should be dismissed on the merits and with prejudice as to the
Defendants.
If you
are a FARO Stockholder, your rights may be affected by the
Settlement. Any FARO Stockholder who objects to the Settlement or any
of its terms, or who otherwise wishes to be heard, may appear in person or
through counsel at the Settlement Hearing and present evidence or argument that
may be proper and relevant; provided, however, that no person other than
Plaintiff’s Counsel and Defendants’ counsel shall be heard and no papers,
briefs, pleadings or other documents submitted by any such Person shall be
received and considered by the Court (unless the Court in its discretion shall
thereafter otherwise direct, upon application of such person and for good cause
shown), unless not later than fourteen (14) days prior to the Settlement Hearing
such Person:
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A.
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files
with the Clerk of the United States District Court for the Middle District
of Florida, 401 West Central Boulevard, Suite 1200, Orlando, Florida
32801-0120, a written objection containing (1) the name of the case and
case number; (2) the Person’s name, address, and telephone number; (3) the
number of shares of FARO common stock the Person owns; (4) the date(s) of
purchase of such shares, and a statement as to whether the Person will own
such shares as of the date of the Settlement Hearing; (5) a detailed
statement of the basis for the Person’s objections to or comments upon the
Settlement, Plaintiff’s Counsel's request for attorneys’ fees and
reimbursement of expenses, or any other matter before the Court; (6) any
supporting papers, including all documents and writings that the person
desires the Court to consider; (7) a representation as to whether the
Person intends to appear the Settlement Hearing; (8) a representation as
to whether the Person plans on calling any witness(es) at the Settlement
Hearing; and (9) the identities of any witness(es) the Person plans to
call at the Settlement Hearing; and
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2
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B.
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on
or before the date of such filing, serves the same documents by hand or by
first class mail upon the following counsel of
record:
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PLAINTIFF’S
COUNSEL
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FARO’S
COUNSEL
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Barroway
Topaz Kessler Meltzer & Check, LLP
Eric
L. Zagar
280
King of Prussia Road
Radnor,
PA 19087
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SKADDEN,
ARPS, SLATE,
MEAGHER
& FLOM LLP
Jay
B. Kasner
Richard
L. Brusca
Susan
L. Saltzstein
Four
Times Square
New
York, NY 10036
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INDIVIDUAL
DEFENDANTS' COUNSEL
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SHEARMAN
& STERLING LLP
Kenneth
Kramer
Tammy
P. Bieber
599
Lexington Avenue
New
York, NY 10022
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Unless
the Court otherwise directs, no Person shall be entitled to object to the
approval of the Settlement, to any Judgment entered thereon, to the fee and
expense award, or otherwise to be heard, except by serving and filing a written
objection and supporting papers and documents as prescribed
above. Any FARO
Stockholder who fails to object in the manner and within the time prescribed
above shall be deemed to have waived the right to object (including the right to
appeal) and forever shall be barred, in this proceeding or in any other
proceeding, from raising such objection and will be barred for all time by the
Final Judgment and Order of Dismissal. FARO Stockholders who have no
objection to the Settlement do not need to appear at the Settlement Hearing or
take any other action.
This
Notice describing the Action was published as a Company Current Report on Form
8-K on February 18, 2009, and filed with the United States Securities and
Exchange Commission (the “SEC”) on that date. You may obtain a copy
of this Notice by referring to the SEC’s website at
http://www.sec.gov. The Form 8-K has also been made accessible on the
Company’s website at http://www.faro.com.
3
If you
have questions regarding the proposed Settlement, please do not call or write
the Court. Questions may be directed to:
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PLAINTIFF’S
COUNSEL
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Eric
L. Zagar
Barroway
Topaz Kessler Meltzer & Check, LLP
280
King of Prussia Road
Radnor,
PA 19087
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4
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NEWS
BULLETIN
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FARO
Technologies Inc.
125
Technology Park
Lake
Mary, FL 32746
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The
Measure of
Success
Keith
Bair, Senior Vice President and CFO
keith.bair@FARO.com,
407-333-9911
FARO
Announces Notice of Pendency of Settlement of Shareholder Derivative
Litigation
LAKE MARY, FL., Feb. 19, 2009
/PRNewswire-FirstCall/ — FARO Technologies, Inc. (Nasdaq: FARO), the world
market leader in portable computer-aided measurement arms and laser tracker
sales, today filed a Current Report on Form 8-K with the U.S. Securities and
Exchange Commission announcing that the U.S. District Court for the Middle
District of Florida granted preliminary approval of the settlement of the
derivative action pending against certain of FARO’s current and former
directors, and against FARO, as a nominal defendant. The Notice of
Pendency of Settlement of Shareholder Derivative Litigation, which is attached
to the Form 8-K, is set forth below:
UNITED
STATES DISTRICT COURT
MIDDLE
DISTRICT OF FLORIDA
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DAVID
ALVERSON, Derivatively On Behalf of
Nominal
Defendant FARO TECHNOLOGIES, INC.,
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Case
No. 6:08-cv-45-ACC-DAB
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Plaintiff,
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v.
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JOHN
CALDWELL,
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STEPHEN
COLE,
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HUBERT
D’AMOURS,
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GREGORY
A. FRASER,
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ANDRE
JULIEN and SIMON RAAB,
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Defendants,
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And
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FARO
TECHNOLOGIES, INC.,
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Nominal Defendant.
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NOTICE OF PENDENCY OF
SETTLEMENT OF SHAREHOLDER DERIVATIVE LITIGATION
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TO:
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ALL
RECORD AND BENEFICIAL OWNERS OF FARO TECHNOLOGIES, INC. (“FARO” OR THE
“COMPANY”) COMMON STOCK ON OR BEFORE JANUARY 21, 2009 (EACH A “FARO
STOCKHOLDER”)
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PLEASE
TAKE NOTICE that the above-captioned shareholder derivative litigation (the
“Action”), is being settled. The terms of the proposed settlement of
the Action (the “Settlement”) are set forth in a Stipulation of Settlement dated
January 21, 2009 (the “Stipulation”). This notice should be read in
conjunction with, and is qualified in its entirety by reference to, the text of
the Stipulation, which has been filed with the Court. All capitalized
terms herein have the same meanings as set forth in the
Stipulation.
The terms
of the Settlement set forth in the Stipulation include: (1) the adoption and/or
implementation of a variety of corporate governance measures, including, but not
limited to, director independence, officer and director stock ownership
guidelines, requirements for director education, and the appointment of a new
independent director; and (2) FARO’s payment of Plaintiffs’ Counsel’s attorney
fees and expenses in the amount of $400,000, subject to Court
approval.
A hearing
(the “Settlement Hearing”) will be held for the Action on April 23, 2009 at 9:15
a.m. before the Hon. Anne C. Conway at the United States District Court for the
Middle District of Florida, 401 West Central Boulevard, Courtroom 6A, Orlando,
Florida 32801-0120, to determine: (1) whether the terms of the Settlement should
be approved as fair, reasonable and adequate; and (2) whether the above-entitled
action should be dismissed on the merits and with prejudice as to the
Defendants.
If you
are a FARO Stockholder, your rights may be affected by the
Settlement. Any FARO Stockholder who objects to the Settlement or any
of its terms, or who otherwise wishes to be heard, may appear in person or
through counsel at the Settlement Hearing and present evidence or argument that
may be proper and relevant; provided, however, that no person other than
Plaintiff’s Counsel and Defendants’ counsel shall be heard and no papers,
briefs, pleadings or other documents submitted by any such Person shall be
received and considered by the Court (unless the Court in its discretion shall
thereafter otherwise direct, upon application of such person and for good cause
shown), unless not later than fourteen (14) days prior to the Settlement Hearing
such Person:
|
|
A.
|
files
with the Clerk of the United States District Court for the Middle District
of Florida, 401 West Central Boulevard, Suite 1200, Orlando, Florida
32801-0120, a written objection containing (1) the name of the case and
case number; (2) the Person’s name, address, and telephone number; (3) the
number of shares of FARO common stock the Person owns; (4) the date(s) of
purchase of such shares, and a statement as to whether the Person will own
such shares as of the date of the Settlement Hearing; (5) a detailed
statement of the basis for the Person’s objections to or comments upon the
Settlement, Plaintiff’s Counsel's request for attorneys’ fees and
reimbursement of expenses, or any other matter before the Court; (6) any
supporting papers, including all documents and writings that the person
desires the Court to consider; (7) a representation as to whether the
Person intends to appear the Settlement Hearing; (8) a representation as
to whether the Person plans on calling any witness(es) at the Settlement
Hearing; and (9) the identities of any witness(es) the Person plans to
call at the Settlement Hearing; and
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|
|
B.
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on
or before the date of such filing, serves the same documents by hand or by
first class mail upon the following counsel of
record:
|
|
PLAINTIFF’S
COUNSEL
|
FARO’S
COUNSEL
|
|
Barroway
Topaz Kessler Meltzer & Check, LLP
Eric
L. Zagar
280
King of Prussia Road
Radnor,
PA 19087
|
SKADDEN,
ARPS, SLATE,
MEAGHER
& FLOM LLP
Jay
B. Kasner
Richard
L. Brusca
Susan
L. Saltzstein
Four
Times Square
New
York, NY 10036
|
|
INDIVIDUAL
DEFENDANTS' COUNSEL
|
|
|
SHEARMAN
& STERLING LLP
Kenneth
Kramer
Tammy
P. Bieber
599
Lexington Avenue
New
York, NY 10022
|
Unless
the Court otherwise directs, no Person shall be entitled to object to the
approval of the Settlement, to any Judgment entered thereon, to the fee and
expense award, or otherwise to be heard, except by serving and filing a written
objection and supporting papers and documents as prescribed
above. Any FARO
Stockholder who fails to object in the manner and within the time prescribed
above shall be deemed to have waived the right to object (including the right to
appeal) and forever shall be barred, in this proceeding or in any other
proceeding, from raising such objection and will be barred for all time by the
Final Judgment and Order of Dismissal. FARO Stockholders who have no
objection to the Settlement do not need to appear at the Settlement Hearing or
take any other action.
This
Notice describing the Action was published as a Company Current Report on Form
8-K on February 18, 2009, and filed with the United States Securities and
Exchange Commission (the “SEC”) on that date. You may obtain a copy
of this Notice by referring to the SEC’s website at http://www.sec.gov. The
Form 8-K has also been made accessible on the Company’s website at
http://www.faro.com.
If you
have questions regarding the proposed Settlement, please do not call or write
the Court. Questions may be directed to:
PLAINTIFF’S
COUNSEL
Eric L.
Zagar
Barroway
Topaz Kessler Meltzer & Check, LLP
280 King
of Prussia Road
Radnor,
PA 19087
About
FARO
With
approximately 19,000 installations and 9,000 customers globally, FARO
Technologies, Inc. designs, develops, and markets portable, computerized
measurement devices and software used to create digital models — or to perform
evaluations against an existing model — for anything requiring highly detailed
3-D measurements, including part and assembly inspection, factory planning and
asset documentation, as well as specialized applications ranging from surveying,
recreating accident sites and crime scenes to digitally preserving historical
sites.
FARO's
technology increases productivity by dramatically reducing the amount of on-site
measuring time, and the various industry-specific software packages enable users
to process and present their results quickly and more effectively.
Principal
products include the world's best-selling portable measurement arm — the
FaroArm; the world's best-selling laser tracker — the FARO Laser Tracker X and
Xi; the FARO Laser ScanArm; FARO Photon Laser Scanners; the FARO Gage, Gage-PLUS
and PowerGAGE; and the CAM2 Q family of advanced CAD-based measurement and
reporting software. FARO Technologies is ISO-9001 certified and ISO-17025
laboratory registered.