As filed with the Securities and Exchange Commission on May 21,1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under the
Securities Act of 1933
VIVID TECHNOLOGIES, INC.
(Exact Name of Registrant as
Specified in Its Charter)
Delaware 04-3054475
(State or Other (I.R.S. Employer
Jurisdiction of Identification Number)
Incorporation or
Organization)
10E Commerce Way, Woburn, Massachusetts 01801
(Address of Principal Executive Offices) (Zip Code)
Vivid Technologies, Inc.
1999 Equity Incentive Plan
1989 Combination Stock Option Plan
1996 Nonemployee Directors Stock Option Plan
1996 Equity Incentive Plan
(Full Titles of the Plans)
S. David Ellenbogen, Chairman and Chief Executive Officer
Vivid Technologies, Inc.
10E Commerce Way
Woburn, Massachusetts 01801
(Name and Address of Agent For Service)
(781) 938-7800
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Offer- Registra-
Registered Registered Per Share (1) ing Price(1) tion fee
Common Stock, 300,000(2) $3.15625 $946,875.00 $263.23
$.01 par value shares
Preferred Share 2,106,080 --- --- ---
Purchase Rights(3) rights
(1)Estimated solely for the purpose of determining the
registration fee pursuant to Rule 457(h) under the
Securities Act of 1933, on the basis of the average high and
low prices for the Registrant's Common Stock on the Nasdaq
Stock Market on May 19, 1999.
(2)Also registered hereunder are such presently indeterminable
number of additional shares of Common Stock as may be issued
in the event of a merger, consolidation, reorganization,
recapitalization, stock dividend, stock split, stock
combination, or other similar transaction effected without
the receipt of consideration which results in an increase in
the number of the Registrant's outstanding shares of Common
Stock.
(3)Pursuant to a Rights Agreement dated as of October 13, 1998,
as amended, one preferred share purchase right (each a
"Right") is deemed to be delivered with each share of Common
Stock issued by the Registrant. Includes Rights that may be
issued in connection with the delivery of shares of Common
Stock which have previously been registered as referenced
below. The Rights currently are not transferable apart from
the Common Stock, and they are not exercisable until the
occurrence of certain events. Accordingly, no independent
value has been attributed to the Rights.
This Registration Statement also incorporates by reference
and serves as Post-Effective Amendment No. 1 to Registration
Statement No. 333-25049 on Form S-8, relating to an aggregate of
931,080 shares issuable under the Vivid Technologies, Inc. 1989
Combination Stock Option Plan, 125,000 shares issuable under the
Vivid Technologies, Inc. 1996 Nonemployee Directors Stock Option
Plan, and 750,000 shares issuable under the Vivid Technologies,
Inc. 1996 Equity Incentive Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference
into this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the Fiscal
Year ended September 30, 1998;
(b) The Registrant's Quarterly Report on Form 10-Q for the three
months ended March 31, 1999;
(c) The description of the Registrant's Common Stock contained
in the Registrant's Registration Statement on Form 8-A (File No.
0-28946) filed under the Securities Exchange Act of 1934 (the
"1934 Act") including any amendment or report filed for the
purpose of updating such description;
(d) The description of the Registrant's Preferred Share Purchase
Rights contained in the Registrant's Registration Statement on
Form 8-A (File No. 0-28946) filed under the 1934 Act including
any amendment or report filed for the purpose of updating such
description; and
(e) All other reports filed pursuant to Section 13(a) or 15(d)
of the 1934 Act since the end of the fiscal year covered by the
Registrant's Annual Report referred to in (a) above.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, subsequent to the
date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold,
shall be deemed hereby incorporated by reference in this
Registration Statement and to be a part hereof from the date of
filing of such documents. 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 or is deemed to be incorporated by reference herein
modifies or supersedes such statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the securities offered hereby has been passed
upon for the Registrant by Messrs. Brown, Rudnick, Freed &
Gesmer, One Financial Center, Boston, Massachusetts 02111. A
member of Brown, Rudnick, Freed & Gesmer, counsel to the
Company, is Secretary of the Company.
Item 6. Indemnification of Directors and Officers.
Article Ninth of the Registrant's Certificate of
Incorporation eliminates the personal liability of directors of
the Registrant or its stockholders for monetary damages for
breach of fiduciary duty to the full extent permitted by
Delaware law. Article VII of the Registrant's Bylaws provides
that the Registrant may indemnify its officers and directors to
the full extent permitted by the Delaware General Corporation
Law. Section 145 of the Delaware General Corporation Law
authorizes a corporation to indemnify directors, officers,
employees and agents of a corporation if such party acted in
good faith in a manner he believed to be in or not opposed to
the best interest of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful, as determined in accordance
with the Delaware General Corporation Law. Section 145 further
provides that indemnification shall be provided if the party in
question is successful on the merits or otherwise in any
proceeding or action.
The Registrant has entered into indemnification agreements
with each of its present directors. The Company may also enter
into similar agreements with certain of the Company's officers
who are not also directors. Generally, the indemnification
agreements attempt to provide the maximum protection permitted
by Delaware law with respect to indemnification of directors and
officers. In addition, the Registrant maintains insurance on
behalf of any person who is or was a director or officer against
any loss arising from any claim asserted against him or her in
any such capacity, subject to certain exceptions.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Restated Certificate of Incorporation of the
Registrant - Filed as Exhibit 3.03 to the Registrant's
Registration Statement on Form S-1 (File No. 333-14311)
(the "S-1 Registration Statement").*
4.2 Bylaws of the Registrant - Filed as Exhibit 3.02 to
the Registrant's S-1 Registration Statement.*
4.3 Specimen Certificate of Common Stock - Filed as
Exhibit 4.01 to the Registrant's S-1 Registration
Statement.*
4.4 Rights Agreement between the Registrant and
American Stock Transfer & Trust Company, as Rights
Agent, dated as of October 13, 1998 - Filed as Exhibit
4 to the Registrant's Form 8-K dated October 13, 1998
(File No. 0-28946).*
5.1 Legal Opinion of Brown, Rudnick, Freed & Gesmer.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Brown, Rudnick, Freed & Gesmer is
included in their legal opinion filed as Exhibit 5.1 hereof.
24 Power of Attorney (set forth on page II-4).
99.1 Registrant's 1989 Combination Stock Option Plan -
Filed as Exhibit 10.06 to the Registrant's S-1 Registration
Statement.*
99.2 Registrant's 1996 Nonemployee Director Stock Option Plan -
Filed as Exhibit 10.07 to the Registrant's S-1 Registration
Statement.*
99.3 Registrant's 1996 Equity Incentive Plan - Filed as
Exhibit 10.08 to the Registrant's S-1 Registration Statement.*
99.4 Registrant's 1999 Equity Incentive Plan - Filed as
Exhibit 10 to the Registrant's Quarterly Report on
Form 10-Q for the three months ended March 31, 1999.*
* Not filed herewith. In accordance with Rule 411 promulgated
pursuant to the 1933 Act, reference is made to the documents
previously filed with the Commission, which are incorporated by
reference herein.
Item 9. Undertakings.
(a) The undersigned Registrant 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 liability under
the Securities Act of 1933, 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.
(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.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 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.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 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 of 1933 and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
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 Town of Woburn, Commonwealth of Massachusetts, on the 21st
day of May, 1999.
VIVID TECHNOLOGIES, INC.
By: /s/ S. David Ellenbogen
S. David Ellenbogen
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below constitutes and appoints S. David
Ellenbogen and William J. Frain and each of them (with full
power to each of them to act alone), his true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments (including
post-effective amendments) to this 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
and about the premises, 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 any of them, or
their substitutes, may lawfully do or cause to be done by virtue
hereof.
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 date indicated.
Signature Title Date
/s/ S. David Ellenbogen Director and Chief May 21, 1999
S. David Ellenbogen Executive Officer
/s/ William J. Frain Chief Financial May 21, 1999
William J. Frain Officer, Treasurer
and Principal
Accounting Officer
/s/ Jay A. Stein Director May 21, 1999
Jay A. Stein
/s/ L. Paul Bremer III Director May 21, 1999
L. Paul Bremer III
/s/ Frank Kenny Director May 21, 1999
Frank Kenny
/s/ Glenn P. Muir Director May 21, 1999
Glenn P. Muir
/s/ Gerald Segel Director May 21, 1999
Gerald Segel
INDEX TO EXHIBITS
Exhibit Sequential
Number Page Number
4.1 Restated Certificate of Incorporation of the
Registrant - Filed as Exhibit 3.03 to the
Registrant's Registration Statement on Form
S-1 (File No. 333-14311) (the "S-1
Registration Statement").*
4.2 Bylaws of the Registrant - Filed as Exhibit
3.02 to the Registrant's S-1 Registration
Statement.*
4.3 Specimen Certificate of Common Stock - Filed
as Exhibit 4.01 to the Registrant's S-1
Registration Statement.*
4.4 Rights Agreement between the Registrant and
American Stock Transfer & Trust Company, as
Rights Agent, dated as of October 13, 1998 -
Filed as Exhibit 4 to the Registrant's Form
8-K dated October 13, 1998 (File No. 0-
28946)*
5.1 Legal Opinion of Brown, Rudnick, Freed &
Gesmer.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Brown, Rudnick, Freed & Gesmer is
included in their legal opinion filed as
Exhibit 5.1 hereof.
24. Power of Attorney (set forth on page II-4).
99.1 Registrant's 1989 Combination Stock Option
Plan -Filed as Exhibit 10.06 to the
Registrant's S-1 Registration Statement.*
99.2 Registrant's 1996 Nonemployee Director Stock
Option Plan - Filed as Exhibit 10.07 to the
Registrant's S-1 Registration Statement.*
99.3 Registrant's 1996 Equity Incentive Plan -
Filed as Exhibit 10.08 to the Registrant's S-
1 Registration Statement.*
99.4 Registrant's 1999 Equity Incentive Plan -
Filed as Exhibit 10 to the Registrant's
Quarterly Report on Form 10-Q for the three
months ended March 31, 1999.*
* Not filed herewith. In accordance with Rule 411 promulgated
pursuant to the 1933 Act, reference is made to the documents
previously filed with the Commission, which are incorporated by
reference herein.
Exhibit 5.1
May 21, 1999
Vivid Technologies, Inc.
10E Commerce Way
Woburn, MA 01801
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
We are general counsel to Vivid Technologies, Inc., a
Delaware corporation (the "Company"). We have been asked to
deliver this opinion in connection with the preparation and
filing with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), of a Registration
Statement on Form S-8 (the "Registration Statement") relating to
(i) 300,000 shares of the Company's Common Stock, $.01 par value
(the "Shares") that may be issued pursuant to options granted
under the Company's 1999 Equity Incentive Plan (the "1999 Plan");
and (ii) 2,106,080 Preferred Share Purchase Rights (as defined
below) that may be issued in connection with the issuance of
registered shares of the Company's Common Stock pursuant to
options granted under the Company's 1989 Combination Stock Option
Plan (the "1989 Plan"), the Company's 1996 Nonemployee Directors
Stock Option Plan (the "Nonemployee Directors Plan"), the
Company's 1996 Equity Incentive Plan (the "1996 Plan") and the
1999 Plan. The Preferred Share Purchase Rights are issuable
pursuant to that certain Rights Agreement, dated as of October
13, 1998 (the "Rights Agreement"), providing, in effect, for the
delivery of a right (a "Preferred Share Purchase Right"), along
with each share of Common Stock issued by the Company.
In connection with this opinion, we have examined and are
familiar with originals or copies, certified or otherwise
identified to our satisfaction, of the following documents
(collectively, the "Documents"):
1. A copy of the Restated Certificate of Incorporation of the
Company as in effect on the date hereof;
2. A copy of the Bylaws of the Company as in effect on the date
hereof;
3. The corporate records of the Company relating to the
proceedings of stockholders and directors of the Company;
4. The 1999 Plan, the 1989 Plan, the Nonemployee Directors Plan
and the 1996 Plan (collectively, the "Plans");
5. The Rights Agreement; and
6. The Registration Statement.
In giving our opinion, we have relied as to matters of fact
upon certificates of officers of the Company. For purposes of
this opinion we have assumed without any investigation (1) the
legal capacity of each natural person and (2) the genuineness of
each signature, the completeness of each document submitted to us
as an original and the conformity with the original of each
document submitted to us as a copy.
Our opinion hereafter expressed is based solely upon (1) our
review of the Documents, (2) discussions with certain officers of
the Company with respect to the Documents, (3) discussions with
those of our attorneys who have devoted substantive attention to
the matters contained herein and (4) such review of published
sources of law as we have deemed necessary.
Based upon and subject to the foregoing, we are of the opinion
that the Shares have been duly authorized and, when issued in
accordance with the terms of the Plans, the Shares will be
validly issued, fully paid and nonassessable. The Preferred
Share Purchase Rights have been duly authorized and, when issued
in accordance with the terms of the Rights Agreement, will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit
5.1 to the Registration Statement and to the reference to our
firm wherever it appears in the Registration Statement.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER
By: Brown, Rudnick, Freed & Gesmer, P.C.,
a partner
By: /s/ Philip J. Flink
Philip J. Flink, a Member
hereunto duly authorized
PJF/JMD/MRF
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use
of our report dated November 3, 1998 and to all references to our
Firm included in or made a part of this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Boston, Massachusetts
May 19, 1999
