Document/ExhibitDescriptionPagesSize 1: S-8 Registration Statement - Securities for an HTML 107K Employee Benefit Plan
3: EX-5.1 Opinion of Counsel re: Legality HTML 14K
4: EX-23.2 Consent of Expert or Counsel HTML 5K
2: EX-FILING FEES Filing Fees HTML 17K
5: EX-99.1 Miscellaneous Exhibit HTML 107K
6: EX-99.2 Miscellaneous Exhibit HTML 78K
‘S-8’ — Registration Statement – Securities for an Employee Benefit Plan
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,”“accelerated filer,”“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
☐
Accelerated filer
☒
Non-accelerated
filer
☐
Smaller reporting company
☐
Emerging growth company
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If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PART I
EXPLANATORY NOTE
This Registration Statement on Form S-8 (this “Registration Statement”) is filed by FARO Technologies, Inc. (the
“Registrant”) for the
purpose of registering (i) 1,250,000 shares of common stock of the Registrant reserved for issuance under
the 2022 Equity Incentive Plan, as amended (the “2022 Plan”) and (ii) 434,837 shares of common stock of the Registrant
issuable under the inducement awards to Peter J. Lau, the Registrant’s Chief Executive Officer and Director (the “Inducement
Awards”). The Inducement Awards were approved by the Talent, Development and Compensation Committee of the Board of
Directors of the
Registrant in compliance with and in reliance on Nasdaq Listing Rule 5635(c)(4). The Inducement Awards was
granted through separate inducement restricted stock unit grants with terms generally consistent with the terms of the 2022
Plan.
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of 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 Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act. These documents
and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The
Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “Commission”):
(c) all other reports filed with the Commission pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the Registrant’s Annual Report on Form 10-K referred to in (a) above; and
(d) the description of the Registrant’s common stock contained
in the Registrant’s Registration Statement on Form 8-A (File No. 000-23081) filed with the Commission on September 15, 1997, pursuant to Section 12(b) of Exchange Act, including any amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date
of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates
that all securities offered have been sold or
that 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 documents;
provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of
the Commission shall not be deemed incorporated by reference into this Registration Statement. Any statement contained in a
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 subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration
Statement
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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 Registrant is a Florida corporation subject to the Florida Business Corporation Act (the “Florida Act”). Under Section
607.0831 of the Florida Act, a director is not personally liable for monetary damages to the corporation or any other person for
any statement, vote, decision, or failure to act regarding corporate
management or policy unless (1) the director breached or
failed to perform his or her duties as a director and (2) the director’s breach of, or failure to perform, those duties constitutes:
(a) a violation of the criminal law, unless the director had reasonable cause to believe his or her conduct was lawful or had no
reasonable cause to believe his or her conduct was unlawful; (b) a transaction from which the director derived an improper
personal benefit, either directly or indirectly; (c) a circumstance under which the liability provisions of Section 607.0834 of the
Florida Act are applicable (relating to liability for unlawful distributions); (d) in a proceeding by or in the right of the
corporation to procure a judgment in its favor or by or in the right of a shareholder,
conscious disregard for the best interest of
the corporation, or willful misconduct; or (e) in a proceeding by or in the right of someone other than the corporation or a
shareholder, recklessness or an act or omission which was committed in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety, or property. A judgment or other final adjudication against a
director in any criminal proceeding for a violation of the criminal law stops that director from contesting the fact that his or her
breach, or failure to perform, constitutes a violation of the criminal law; but does not stop the director from establishing that he
or she had reasonable cause to believe that his or her conduct was lawful or had no reasonable
cause to believe that his or her
conduct was unlawful.
Under Section 607.0851 of the Florida Act, a corporation generally has the power to indemnify any person who was or is a
party to any proceeding because the individual is or was a director or officer of the corporation if (a) the director or officer
acted in good faith; (b) the director or officer acted in a manner he or she reasonably believed to be in, or not opposed to, the
best interests of the corporation; and (c) in the case of any criminal proceeding, the director or officer had no reasonable cause
to believe his or her conduct was unlawful. The termination of a proceeding by judgment, order, settlement, or conviction, or
upon a plea of nolo contendere
or its equivalent, does not, of itself, create a presumption that the director or officer did not
meet the relevant standard of conduct described in this section of the Florida Act. Unless ordered by a court, a corporation may
not indemnify a director or an officer in connection with a proceeding by or in the right of the corporation except for expenses
and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of such proceeding,
where such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation.
For
purposes of the indemnification provisions of the Florida Act, “director” or “officer” means an individual who is or was a
director or officer, respectively, of a corporation or who, while a director or officer of the corporation, is or was serving at the
corporation’s request as a director or officer, manager, partner, trustee, employee, or agent of another domestic or foreign
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan, or another enterprise or entity
and the terms include, unless the context otherwise requires, the estate, heirs, executors, administrators, and personal
representatives of a director or officer.
Section 607.0852 of the Florida Act provides that a corporation
must indemnify an individual who is or was a director or
officer who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the individual was a
party because he or she is or was a director or officer of the corporation against expenses incurred by the individual in
connection with the proceeding.
Section 607.0853 of the Florida Act provides that a corporation may, before final disposition of a proceeding, advance funds to
pay for or reimburse expenses incurred in connection with the proceeding by an individual who is a party to the proceeding
because that individual is or was a director or an officer if the director or officer delivers to the corporation a signed written
undertaking of
the director or officer to repay any funds advanced if (a) the director or officer is not entitled to mandatory
indemnification under Section 607.0852; and (b) it is ultimately determined under Section 607.0854 or Section 607.0855 (as
described below) that the director or officer has not met the relevant standard of conduct described in Section 607.0851 or the
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director or officer is not entitled to indemnification under Section 607.0859 (as described below).
Section 607.0854 of the Florida Act provides that, unless the corporation’s articles of
incorporation provide otherwise,
notwithstanding the failure of a corporation to provide indemnification, and despite any contrary determination of the board of
directors or of the shareholders in the specific case, a director or officer of the corporation who is a party to a proceeding
because he or she is or was a director or officer may apply for indemnification or an advance for expenses, or both, to a court
having jurisdiction over the corporation which is conducting the proceeding, or to a circuit court of competent jurisdiction. The
Registrant’s Articles of Incorporation do not provide any such exclusion. After receipt of an application and after giving any
notice it considers
necessary, the court may order indemnification or advancement of expenses upon certain determinations of
the court.
Section 607.0855 of the Florida Act provides that, unless ordered by a court under Section 607.0854, a corporation may not
indemnify a director or officer under Section 607.0851 unless authorized for a specific proceeding after a determination has
been made that indemnification is permissible because the director or officer has met the relevant standard of conduct set forth
in Section 607.0851.
Section 607.0857 of the Florida Act provides that a corporation has the power to purchase and maintain insurance on behalf of
and for the benefit of an individual who is entitled
to indemnification as set forth therein, and Section 607.0858 of the Florida
Act provides that the indemnification provided pursuant to Section 607.0851 and Section 607.0852, and the advancement of
expenses provided pursuant to Section 607.0853 are not exclusive. A corporation may, by a provision in its articles of
incorporation, bylaws or any agreement, or by vote of shareholders or disinterested directors, or otherwise, obligate itself in
advance of the act or omission giving rise to a proceeding to provide any other or further indemnification or advancement of
expenses to any of its directors or officers.
Section 607.0859 of the Florida Act provides
that, unless ordered by a court under provisions of Section 607.0854 of the
Florida Act, a corporation may not indemnify a director or officer under Section 607.0851 or Section 607.0858 or advance
expenses to a director or officer under Section 607.0853 or Section 607.0858 if a judgment or other final adjudication
establishes that his or her actions, or omissions to act, were material to the cause of action so adjudicated and constitute: (a)
willful or intentional 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; (b) a
transaction in which a director or officer derived an improper personal benefit;
(c) a violation of the criminal law, unless the
director or officer had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or
her conduct was unlawful; or (d) in the case of a director, a circumstance under which the liability provisions of Section
607.0834 are applicable (relating to unlawful distributions).
Bylaws
(the “Bylaws”) provide that the Registrant shall indemnify directors and executive officers to the fullest extent now or
hereafter permitted by the Florida Act and shall advance any and all reasonable expenses incurred in any proceeding to which
any director or executive officer is a party or in which such director or executive officer is deposed or called to testify as a
witness because he or she is or was a director or executive officer of the Registrant. In addition, the Registrant may enter into
indemnification
agreements with its directors and executive officers in which the Registrant has agreed to indemnify such
persons to the fullest extent now or hereafter permitted by the Florida Act. The indemnification provided by the Florida Act and in the Articles of Incorporation and Bylaws is not exclusive of any other rights to which indemnification to a director or officer may be entitled.
As permitted by the Florida Act, the Registrant has entered into separate indemnification agreements with each of the
Registrant’s
directors and executive officers which would require the Registrant, among other things, to indemnify them against certain liabilities which may arise by reason of their status as directors or executive officers.
In addition, the Florida Act permits, and the Articles of Incorporation and Bylaws authorize, us to purchase insurance on behalf
of the Registrant's directors and executive officers, insuring them against certain risks whether or not the Registrant
would be
obligated to indemnify or advance expenses to such directors or executive officers under the Articles of Incorporation and
(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 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
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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 disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that 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 Exchange Act that are incorporated by reference in this Registration Statement.
(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 therein, 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 therein, 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, as amended, 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 Lake Mary, Florida on August 2, 2023.
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Yuval Wasserman and Allen Muhich, and each of them, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign this Registration Statement and any and all amendments thereto, including post-effective amendments, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent 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 and about the premises, as fully for all intents and purposes as they, he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or any of them, or their, his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
