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As Filed With the Securities and Exchange Commission on November 14, 1997
================================================================================
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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KOFAX IMAGE PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 33-0114967
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3 Jenner Street, Irvine, California 92618
(Address of Principal Executive Offices) (Zip Code)
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1997 EMPLOYEE PURCHASE STOCK PLAN
1997 STOCK OPTION PLAN FOR
NON-EMPLOYEE DIRECTORS
1996 INCENTIVE STOCK OPTION, NONQUALIFIED
STOCK OPTION AND RESTRICTED
STOCK PURCHASE PLAN
1992 INCENTIVE STOCK OPTION, NONQUALIFIED
STOCK OPTION AND RESTRICTED
STOCK PURCHASE PLAN
--------------------
David S. Silver,
President, Chief Executive Officer and Chairman of the Board
Kofax Image Products, Inc.
3 Jenner Street, Irvine, California 92618
(Name and address of agent for service)
(714) 727-1733
(Telephone number, including area code, of agent for service)
Copy to:
K.C. Schaaf, Esq.
Christopher P. Ivey, Esq.
Stradling, Yocca, Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
(714) 725-4000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount To Be Offering Aggregate Offering Amount of
To Be Registered Registered(1) Price Per Share Price Registration Fee
=======================================================================================================
<S> <C> <C> <C> <C>
Common Stock,
$0.001 par value 1,267,562 shares (2) $10,093,689(1) $3,058.69
=======================================================================================================
</TABLE>
(1) Includes additional shares of Common Stock that may become issuable
pursuant to the anti-dilution adjustment provisions of the 1992
Incentive Stock Option, Nonqualified Stock Option and Restricted Stock
Purchase Plan (the "1992 Plan"), the 1996 Incentive Stock Option,
Nonqualified Stock Option and Restricted Stock Purchase Plan (the
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"1996 Plan"), the 1997 Stock Option Plan for Directors (the "Director
Plan"), and the Employee Stock Purchase Plan (the "Purchase Plan").
(2) In accordance with Rule 457(h), the aggregate offering price of 433,912
shares of Common Stock registered hereby which would be issued upon
exercise of options granted under the 1992 Plan, the 1996 Plan and the
Director Plan is based upon the per share exercise price of such
options, the weighted average of which is approximately $4.68 per share.
With respect to the remaining 683,650 shares of Common Stock registered
hereby which would be issued upon exercise of the remaining options and
rights to purchase which Registrant is authorized to issue under its
1992 Plan, 1996 Plan and the Director Plan, the aggregate offering price
is estimated solely for purposes of calculating the registration fee, in
accordance with Rule 457(h) on the basis of the price of securities of
the same class, as determined in accordance with Rule 457(c), using the
average of the high and low price reported by the Nasdaq National Market
for the Common Stock on November 12, 1997, which was $9.94 per share.
For the purposes of the 150,000 shares of Common Stock to be issued
under the Purchase Plan, the aggregate offering price was estimated
using a per share price of $8.45, or 85% of $9.94 which price per share
is the estimated basis at which the shares will be issued pursuant to
the Purchase Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Prospectus dated October 10, 1997 filed pursuant to
Rule 424(b) of the Securities Act of 1933, as amended (the "Securities Act").
(b) The description of the Registrant's Common Stock which is contained
in the Registrant's Registration Statement on Form 8-A filed under the
Securities Exchange Act of 1934 (the "Exchange Act"), including any amendment or
report filed for the purpose of updating such description.
(c) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act, since the end of the fiscal year covered by the
Annual Report referred to in (a) above.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to the registration statement which indicates that all
of the shares of Common Stock offered have been sold or which deregisters all of
such shares then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
documents, except as to any portion of any future annual or quarterly report to
stockholders or document which is not deemed filed under such provisions. For
the purposes of 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 to the extent that a statement contained
herein or in any other subsequently filed document which also is or 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
(a) The Company's Certificate of Incorporation provides that, pursuant
to Delaware law, its directors shall not be liable for monetary damages for
breach of the directors' fiduciary duty to the Company and its stockholders.
This provision in the Certificate of Incorporation does not eliminate the
directors' fiduciary duty, and in appropriate circumstances equitable remedies
such as injunctive or other forms of non-monetary relief will remain available
under Delaware law. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Company for acts
or omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for actions leading to improper personal benefit to the
director, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
(b) The Company's Bylaws provide that the Company will indemnify its
directors and officers and may indemnify its employees and other agents to the
fullest extent permitted by law. The Company believes that indemnification under
its Bylaws covers at least negligence and gross negligence by indemnified
parties, and permits the Company to advance litigation expenses in the case of
stockholder derivative actions or other actions, against an undertaking by the
indemnified party to repay such advances if it is ultimately determined that the
indemnified party is not entitled to indemnification. The Company has in place
liability insurance for its officers and directors.
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(c) The Company has entered into separate indemnification agreements
with its directors and officers. These agreements require the Company, among
other things, to indemnify them against certain liabilities that may arise by
reason of their status or service as directors or officers (other than
liabilities arising from actions not taken in good faith or in a manner the
indemnitee believed to be opposed to the best interests of the Company) to
advance their expenses incurred as a result of any proceeding against them as to
which they could be indemnified and to obtain directors' insurance if available
on reasonable terms.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this registration statement:
<TABLE>
<CAPTION>
Number Description
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<S> <C>
4.1 Specimen Certificate of the Registrant's Common Stock
(incorporated by reference to the same number exhibit to
the Registrant's Registration Statement on Form S-1
(Registration No. 333-34531)).
4.2 1992 Incentive Stock Option, Nonqualified Stock Option and
Restricted Stock Purchase Plan (incorporated by reference
to Exhibit 10.1 to the Registrant's Registration Statement
on Form S-1 (Registration No. 333-34531)).
4.3 Form of Incentive Option Agreement pertaining to the 1992
Plan (incorporated by reference to Exhibit 10.2 to the
Registrant's Registration Statement on Form S-1
(Registration No. 333-34531)).
4.4 Form of Nonqualified Option Agreement pertaining to the
1992 Plan (incorporated by reference to Exhibit 10.3 to
the Registrant's Registration Statement on Form S-1
(Registration No. 333-34531)).
4.5 Form of Restricted Stock Agreement pertaining to the 1992
Plan (incorporated by reference to Exhibit 10.4 to the
Registrant's Registration Statement on Form S-1
(Registration No. 333-34531)).
4.6 1996 Incentive Stock Option, Nonqualified Stock Option and
Restricted Stock Purchase Plan (incorporated by reference
to Exhibit 10.5 to the Registrant's Registration Statement
on Form S-1 (Registration No. 333-34531)).
4.7 Form of Stock Option Agreement pertaining to the 1996 Plan
(incorporated by reference to Exhibit 10.6 to the
Registrant's Registration Statement on Form S-1
(Registration No. 333-34531)).
4.8 1997 Stock Option Plan for Non-Employee Directors
(incorporated by reference to Exhibit 10.8 to the
Registrant's
</TABLE>
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<TABLE>
<S> <C>
Registration Statement on Form S-1 (Registration No.
333-34531)).
4.9 Form of Stock Option Agreement pertaining to the Director
Plan (incorporated by reference to Exhibit 10.9 to the
Registrant's Registration Statement on Form S-1
(Registration No. 333-34531)).
4.10 1997 Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.10 to the Registrant's
Registration Statement on Form S-1 (Registration No.
333-34531)).
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant.
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit
5.1).
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (included on signature page to this
registration statement).
</TABLE>
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:
(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
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% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(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)(l)(i) and (a)(l)(ii) of this section do
not apply if the registration statement is on Form S-3, Form S-8 or Form F-3 and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
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(2) 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.
(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, 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act maybe 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 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.
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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 City of Irvine, State of California, on the 12th day
of November, 1997.
KOFAX IMAGE PRODUCTS, INC.
By: /s/ DAVID S. SILVER
-------------------------------------
David S. Silver
Chief Executive Officer and President
POWER OF ATTORNEY
We, the undersigned officers and directors of Kofax Image Products,
Inc., do hereby constitute and appoint David S. Silver and Ronald J. Fikert, or
either of them, our 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 to this registration
statement, and to file the same, with exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite or 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 attorney-in-fact and
agent, or his substitute or 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.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ DAVID S. SILVER Chief Executive Officer, November 12, 1997
- ------------------------------- President and Director
David S. Silver (Principal Executive Officer)
/s/ RONALD J. FIKERT Chief Financial Officer November 12, 1997
- ------------------------------- (Principal Financial and
Ronald J. Fikert Accounting Officer)
/s/ DAVID C. SEIGLE Director November 12, 1997
- -------------------------------
David C. Seigle
Director November , 1997
- -------------------------------
B. Allen Lay
/s/ CLIFFORD L. HAAS Director November 12, 1997
- -------------------------------
Clifford L. Haas
/s/ WILLIAM E. DROBSIH Director November 12, 1997
- -------------------------------
William E. Drobish
/S/ ALEXANDER P. CILENTO Director November 12, 1997
- -------------------------------
Alexander P. Cilento
/s/ DEAN A. HOUGH Director November 12, 1997
- -------------------------------
Dean A. Hough
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
<S> <C> <C>
4.1 Specimen Certificate of the Registrant's Common Stock (incorporated --
by reference to the same number exhibit to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-34531)).
4.2 1992 Incentive Stock Option, Non-Qualified Stock Option and --
Restricted Stock Purchase Plan (incorporated by reference to
Exhibit 10.1 to the Registrant's Registration Statement on Form
S-1 (Registration No. 333-34531)).
4.3 Form of Incentive Option Agreement pertaining to the 1992 Plan --
(incorporated by reference to Exhibit 10.2 to the Registrant's
Registration Statement on Form S-1 (Registration No.
333-34531)).
4.4 Form of Nonqualified Option Agreement pertaining to the 1992 --
Plan (incorporated by reference to Exhibit 10.3 to the
Registrant's Registration Statement on Form S-1 (Registration
No. 333-34531)).
4.5 Form of Restricted Stock Agreement pertaining to the 1992 Plan --
(incorporated by reference to Exhibit 10.4 to the Registrant's
Registration Statement on Form S-1 (Registration No.
333-34531)).
4.6 1996 Incentive Stock Option, Non-Qualified Stock Option and --
Restricted Stock Purchase Plan (incorporated by reference to
Exhibit 10.5 to the Registrant's Registration Statement on Form
S-1 (Registration No. 333-34531)).
4.7 Form of Stock Option Agreement pertaining to the 1996 Plan --
(incorporated by reference to Exhibit 10.6 to the Registrant's
Registration Statement on Form S-1 (Registration No.
333-34531)).
4.8 1997 Stock Option Plan for Non-Employee Directors (incorporated --
by reference to Exhibit 10.8 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-34531)).
4.9 Form of Stock Option Agreement Pertaining to the Director Plan --
(incorporated by reference to Exhibit 10.9 to the Registrant's
Registration Statement on Form S-1 (Registration No.
333-34531)).
4.10 1997 Employee Purchase Stock Plan (incorporated by reference to --
Exhibit 10.10 to the Registrant's Registration Statement on
Form S-1 (Registration No. 333-34531)).
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional 9
Corporation, Counsel to the Registrant
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional --
Corporation (included in the Opinion filed as Exhibit 5.1)
23.2 Consent of Deloitte & Touche, LLP. 10
24.1 Power of Attorney (included on signature page to this --
registration statement)
</TABLE>
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EXHIBIT 5.1
STRADLING YOCCA CARLSON & RAUTH
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
660 NEWPORT CENTER DRIVE, SUITE 1600
NEWPORT BEACH, CALIFORNIA 92660-6441
TELEPHONE (714) 725-4000
FACSIMILE (714) 725-4100
SAN FRANCISCO OFFICE
44 MONTGOMERY STREET, SUITE 2950
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE (415) 765-9180
FACSIMILE (415) 765-9187
November 13, 1997
Kofax Image Products
3 Jenner Street
Irvine, California 92618
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-8 (the "Registration Statement") being filed by Kofax Image Products,
Inc., a Delaware corporation (the "Company"), with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of an aggregate of 1,267,562 shares of the Company's common stock,
$0.001 par value ("Common Stock"), issuable under the Company's 1997 Employee
Stock Purchase Plan, 1997 Stock Option Plan for Non-employee Directors, 1996
Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase
Plan and 1992 Amended and Restated Incentive Stock Option, Nonqualified Stock
Option and Restricted Stock Purchase Plan (the "Plans").
We have examined the proceedings heretofore taken and are familiar with
the additional proceedings proposed to be taken by the Company in connection
with the authorization, issuance and sale of the securities referred to above.
Based on the foregoing, it is our opinion that the 1,267,562 shares of
Common Stock to be issued under the Plan against full payment in accordance with
the respective terms and conditions of the Plans will be legally and validly
issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Stradling, Yocca, Carlson & Rauth
STRADLING, YOCCA, CARLSON & RAUTH
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Kofax Image Products, Inc. of our reports dated July 29, 1997
(except as to Note 14, as to which the date is August 27, 1997, and paragraph 1
of Note 12, as to which the date is October 1, 1997) appearing in Registration
Statement No. 333-34531 or Form S-1 of Kofax Image Products, Inc.
/s/ DELOITTE & TOUCHE LLP
Costa Mesa, California
November 12, 1997
