As filed
with the Securities and Exchange Commission on May 17, 2005
Registration
No. 333-_________
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
___________________________
FORM
S-8
REGISTRATION
STATEMENT
Under
THE
SECURITIES ACT OF 1933
__________________
FARO
TECHNOLOGIES, INC.
(Exact
name of registrant as specified in its charter)
|
Florida
(State
or other jurisdiction of
incorporation
or organization) |
59-3157093
(I.R.S.
Employer
Identification
No.) |
|
125
Technology Park Drive
Lake
Mary, Florida
(Address
of principal executive offices) |
32746 |
|
FARO
Technologies, Inc.
2004
Equity Incentive Plan
Amended
and Restated 1997 Employee Stock Option Plan
(Full
title of the plans) |
|
Gregory
A. Fraser, Ph.D.
Executive
Vice President, Secretary and Treasurer
FARO
Technologies, Inc.
125
Technology Park
Lake
Mary, Florida 32746
(407)
333-9911
Fax
(407) 333-4181
(Name,
address and telephone number,
including
area code, of agent for service) |
Copy
to:
Steven
Vazquez
Foley
& Lardner LLP
100
North Tampa St., Suite 2700
Tampa,
Florida 33602
(813)
229-2300 |
__________________________
CALCULATION
OF REGISTRATION FEE
|
Title
of Securities to be Registered |
Amount
to be Registered (1) (3) (4) |
Proposed
Maximum Offering Price Per Share (2) |
Proposed
Maximum Aggregate Offering Price (2) |
Amount
of Registration Fee |
Common
Stock,
$.001
par value |
3,150,000
shares |
$27.775 |
$87,491,250 |
$10,357.60 |
(1) The
provisions of Rule 416 under the Securities Act of 1933, as amended (the
“Securities Act”) shall apply to this Registration Statement and the number of
shares registered on this Registration Statement shall increase or decrease as a
result of stock splits, stock dividends, or similar transactions. Includes an
indeterminate number of additional shares that may be issued to adjust the
number of shares issued pursuant to the Plans described herein as the result of
any future stock split, stock dividend, or similar adjustment of Registrant’s
outstanding common stock.
(2) Estimated
solely for the purpose of calculating the registration fee. The fee is
calculated upon the basis of the average between the high and low sales prices
for shares of common stock of the Registrant as reported on the Nasdaq National
Market on May 17, 2005 pursuant to Rules 457(c) and 457(h) under the Securities
Act.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. Plan
Information.*
Item
2. Registrant
Information and Employee Plan Annual Information.*
*
Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from the Registration Statement in accordance with Rule 428 under the
Securities Act of 1933 and the Note to Part I of Form S-8.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation
of Documents by Reference.
The
Securities and Exchange Commission (the “SEC”) allows FARO Technologies, Inc.
(the "Registrant") to “incorporate by reference” the information the Registrant
files with the SEC, which means the Registrant can disclose important
information to you by referring you to those documents. The information included
in the following documents is incorporated by reference and is considered to be
a part of this prospectus. The most recent information that the Registrant files
with the SEC automatically updates and supersedes more dated information. The
Registrant has previously filed the following documents with the SEC and is
incorporating them by reference into this prospectus:
(a) The
Registrant’s Annual Report on Form 10-K for the year ended December 31, 2004
(including information specifically incorporated by reference into the
Registrant’s Form 10-K from the Registrant’s definitive Proxy
Statement).
(b) The
Registrant’s Current Report on Form 8-K as filed with the SEC on March 30,
2005;
(c) The
Registrant’s Current Report on Form 8-K as filed with the SEC on April 1,
2005;
(d) The
Registrant’s Current Report on Form 8-K as filed with the SEC on April 13,
2005;
(e) The
Registrant’s Current Report on Form 8-K as filed with the SEC on May 10,
2005;
(f) The
Registrant’s Quarterly Report on Form 10-Q as filed with the SEC on May 11,
2005;
(g) The
Registrant’s description of its common stock contained in the Registration
Statement on Form 8-A filed on September 15, 1997 and any amendments or reports
filed for the purpose of updating such description; and
All
reports and other documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), after the date of filing of this Registration
Statement and prior to the filing of a post-effective amendment to this
Registration Statement that indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such reports and documents. The
information contained in any such documents will automatically update and
supercede any information previously incorporated by reference into this
Registration Statement. Any such information so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute part of this
Registration Statement.
Item
4. Description
of Securities.
Not
applicable.
Item
5. Interests
of Named Experts and Counsel.
Foley
& Lardner LLP has provided the Registrant with an opinion relating to
the legality of the common stock being offered by this Registration Statement.
Certain attorneys with Foley & Lardner LLP beneficially own an aggregate of
2,000 shares of common stock of the Registrant as of the date of this
prospectus.
Item
6. Indemnification
of Directors and Officers.
The
Registrant is a Florida corporation. The Florida Business Corporation Act, as
amended (the "Florida Act"), provides that, in general, a business corporation
may indemnify any person who is or was a party to any proceeding (other than an
action by, or in the right of, the corporation) by reason of the fact that he is
or was a director or officer of the corporation, against liability incurred in
connection with such proceeding, including any appeal thereof, provided certain
standards are met, including that such officer or director 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 provided, further that, with respect to any
criminal action or proceeding, the officer or director had no reasonable cause
to believe his conduct was unlawful. In the case of proceedings by or in the
right of the corporation, the Florida Act provides that, in general, a
corporation may indemnify any person who was or is a party to any such
proceeding by reason of the fact that he is or was a director or officer of the
corporation against expenses and amounts paid in settlement actually and
reasonably incurred in connection with the defense or settlement of such
proceeding, including any appeal thereof, provided that such person acted in
good faith and in a manner he reasonably believed to be in, or not opposed to,
the best interests of the corporation, except that no indemnification shall be
made in respect of any claim as to which such person is adjudged liable unless a
court of competent jurisdiction determines upon application that such person is
fairly and reasonably entitled to indemnity. To the extent that any officers or
directors are successful on the merits or otherwise in the defense of any of the
proceedings described above, the Florida Act provides that the corporation is
required to indemnify such officers or directors against expenses actually and
reasonably incurred in connection therewith. However, the Florida Act further
provides that, in general, indemnification or advancement of expenses shall not
be made to or on behalf of any officer or director if a judgment or other final
adjudication establishes that his actions, or omissions to act, were material to
the cause of action so adjudicated and constitute: (i) a violation of the
criminal law, unless the director or officer had reasonable cause to believe his
conduct was lawful or had no reasonable cause to believe it was unlawful; (ii) a
transaction from which the director or officer derived an improper personal
benefit; (iii) in the case of a director, a circumstance under which the
director has voted for or assented to a distribution made in violation of the
Florida Act or the corporation's articles of incorporation; or (iv) willful
misconduct or a conscious disregard for the best interests of the corporation in
a proceeding by or in the right of the corporation to procure a judgment in its
favor or in a proceeding by or in the right of a shareholder. The Registrant has
purchased insurance with respect to, among other things, any liabilities that
may arise under the statutory provisions referred to above.
Item
7. Exemption
from Registration Claimed.
Not
Applicable.
Item
8. Exhibits.
The
following exhibits have been filed (except where otherwise indicated) as part of
this Registration Statement:
|
Exhibit
No. |
Exhibit |
| |
|
|
(4.1) |
2004
Equity Incentive Plan. |
| |
|
|
(4.2) |
Amended
and Restated 1997 Employee Stock Option Plan. |
| |
|
|
(5) |
Opinion
of Foley & Lardner LLP regarding legality of common
stock. |
| |
|
|
(23.1) |
Consent
of Grant Thornton LLP. |
| |
|
|
(23.2) |
Consent
of Ernst & Young LLP. |
| |
|
|
(23.3) |
Consent
of Foley & Lardner (contained in Exhibit 5 hereto). |
| |
|
|
(24) |
Power
of Attorney relating to subsequent amendments (included on the signature
page to this Registration Statement). |
| |
|
Item
9. Undertakings.
(1) The
undersigned Registrant hereby undertakes:
(a) 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;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this 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 this 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) of the Securities Act, if, in the aggregate,
the changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in this Registration Statement.
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement.
PROVIDED,
HOWEVER, that paragraphs (a)(i) and (a)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) That, for
the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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.
2.
The
undersigned Registrant hereby undertakes 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 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to 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 herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
3. 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 foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the 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 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant has duly
caused this Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Lake Mary, and State of Florida, on this 17th
day of May, 2005.
FARO
TECHNOLOGIES, INC.
By: /s/
Simon Raab
Simon
Raab
Chief
Executive Officer
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. Each person whose signature appears below constitutes and appoints
Simon Raab and Gregory A. Fraser, and each of them individually, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him 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 Rule 462(b) Registration Statement 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 or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or her substitute
or substitutes, may lawfully do or cause to be done by virtue
hereof.
|
Signature
|
Title
|
Date
|
|
/s/
Simon Raab
Simon
Raab
|
Chairman
of the Board of Directors, Chief Executive Officer, and
Director
|
May
17, 2005
|
|
/s/
Barbara Smith
Barbara
Smith
|
Chief
Financial Officer (the principal financial officer and principal
accounting officer)
|
May
17, 2005
|
|
/s/
Hubert d’Amours
Hubert
d’Amours
|
Director
|
May
17, 2005
|
|
/s/
Stephen R. Cole
Stephen
R. Cole
|
Director
|
May
17, 2005
|
|
/s/
Norman H. Schipper
Norman
H. Schipper
|
Director
|
May
17, 2005
|
|
/s/
Andre Julien
Andre
Julien
|
Director
|
May
17, 2005
|
|
/s/
John Caldwell
John
Caldwell
|
Director
|
May
17, 2005
|
EXHIBIT
INDEX
|
Exhibit
No. |
Exhibit
|
|
(4.1)
|
2004
Equity Incentive Plan.
|
|
(4.2)
|
Amended
and Restated 1997 Employee Stock Option Plan.
|
|
(5)
|
Opinion
of Foley & Lardner LLP regarding legality of common
stock.
|
|
(23.1)
|
Consent
of Grant Thornton LLP.
|
|
(23.2)
|
Consent
of Ernst & Young LLP.
|
|
(23.3)
|
Consent
of Foley & Lardner LLP (contained in Exhibit 5 hereto).
|
|
(24)
|
Power
of Attorney relating to subsequent amendments (included on the signature
page to this Registration Statement).
|