As filed with the Securities and Exchange Commission on March 9, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
Form S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
----------------------
Creo Products Inc.
(Exact name of Registrant as specified in its charter)
Canada None
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
3700 Gilmore Way
Burnaby, British Columbia
V5G 4M1, Canada
(Address, including zip code, of Registrant's principal executive office)
1996 Stock Option Plan
(Full title of the Plan)
----------------------
Kevin Joyce
Creo Inc.
650 Suffolk Street, Suite 100
Lowell, MA 01854
Ph: (978) 937-8200
(Name, address, including zip code, and telephone number, including area
code, of Registrant's agent for service and authorized representative of
Registrant in the United States)
----------------------
Copies to:
Lee Meyerson
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
----------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum Amount of
Securities to Amount to Offering Price Aggregate Registration
be Registered be Registered Per Share<F(1)> Offering Price Fee<F(1)>
<S> <C> <C> <C> <C>
Common shares without
par value . . . . . . . . . . . . . 3,500,000 $35.23 $123,305,000 $32,552.52
</TABLE>
[FN]
<F(1)> Pursuant to Rule 457(c) under the Securities Act of 1933 the proposed
maximum offering price per share and the registration fee relating to
the common shares being registered have been based on the average of
the bid and ask price of the Common Stock, without par value
("Common Stock") reported on the National Association of Securities
Dealers Automated Quotation System on March 3, 2000.
<PAGE>
PART I
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission by Creo Products Inc. (the "Company" or the "Corporation") are
hereby incorporated in this Registration Statement by reference:
(1) The Company's Registration Statement on Form F-1 dated July 1,
1999.
(2) The Company's Quarterly Report on Form 10-Q for the quarterly
periods ended June 30, 1999.
(3) The Company's Current Reports on Form 6-K dated February 3,
2000, January 26, 2000, January 1, 2000, December 6, 1000,
November 9, 1999, November 8, 1999, October 7, 1999, October 1,
1999, and September 30, 1999.
(4) The description of the Company's Common Stock contained in the
registration statement on Form F-1 filed with the SEC on July 1,
1999, including any amendments or reports filed for the purpose
of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, 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 to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing 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 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
<PAGE>
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.
Section 124, Subsections (1) through (4), of the Canada Business
Corporations Act (the "Act") provides as follows:
"124. Indemnification.--(1) Except in respect of an action by or on
behalf of the corporation or body corporate to procure a judgment in
its favour, a corporation may indemnify a director or officer of the
corporation, a former director or officer of the corporation or a
person who acts or acted at the corporation's request as a director or
officer of a body corporate of which the corporation is or was a
shareholder or creditor, and his heirs and legal representatives,
against all costs, charges and expenses, including an amount paid to
settle an action or satisfy a judgment, reasonably incurred by him in
respect of any civil, criminal or administrative action or proceeding
to which he is made a party by reason of being or having been a
director or officer of such corporation or body corporate, if
(a) he acted honestly and in good faith with a view to the best
interests of the corporation; and
(b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, he had
reasonable grounds for believing that his conduct was lawful.
(2) Indemnification in derivative actions.--A corporation may with
the approval of a court indemnify a person referred to in subsection
(1) in respect of an action by or on behalf of the corporation or body
corporate to procure a judgment in its favour, to which he is made a
party by reason of being or having been a director or an officer of
the corporation or body corporate, against all costs, charges and
expenses reasonably incurred by him in connection with such action if
he fulfills the conditions set out in paragraphs (1)(a) and (b).
(3) Indemnity as of right.--Notwithstanding anything in this
section, a person referred to in subsection (1) is entitled to
indemnity from the corporation in respect of all costs, charges and
expenses reasonably incurred by him in connection with the defence of
any civil, criminal or administrative action or proceeding to which he
<PAGE>
is made a party by reason of being or having been a director or
officer of the corporation or body corporate, if the person seeking
indemnity
(a) was substantially successful on the merits in his defence of
the action or proceeding; and
(b) fulfills the conditions set out in paragraphs (1)(a) and (b).
(4) Directors' and officers' insurance.--A corporation may purchase
and maintain insurance for the benefit of any person referred to in
subsection (1) against any liability incurred by him
(a) in his capacity as a director or officer of the corporation,
except where the liability relates to his failure to act
honestly and in good faith with a view to the best interests
of the corporation, or
(b) in his capacity as director or officer of another body
corporate where he acts or acted in that capacity at the
corporation's request, except where the liability relates to
his failure to act honestly and in good faith with a view to
the best interests of the body corporate."
Sections 7.02 and 7.03 of the General By-Laws of the Company provide as
follows:
"Section 7.02--Indemnity. Subject to the limitations contained in the
Act, the Corporation shall indemnify a director or officer, a former
director or officer, or a person who acts or acted at the
Corporation's request as a director or officer of a body corporate of
which the Corporation is or was a shareholder or creditor (or a person
who undertakes or has undertaken any liability on behalf of the
Corporation or any such body corporate) and his heirs and legal
representatives, against all costs, charges and expenses, including an
amount paid to settle an action or satisfy a judgment, reasonably
incurred by him in respect of any civil, criminal or administrative
action or proceeding to which he is made a party by reason of being or
having been a director or officer of the Corporation or such body
corporate, if
(a) he acted honestly and in good faith with a view to the best
interests of the Corporation; and
(b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, he has
reasonable grounds for believing that his conduct was lawful.
<PAGE>
Section 7.03--Insurance. Subject to the limitations contained in the
Act, the Corporation may purchase and maintain such insurance for the
benefit of its directors and officers, as the board may from time to
time determine.".
Form of Indemnification Agreement between the Company and each of its
Directors and Officers, which supplements the indemnification provisions of
the General By-Laws of the Company.
Section 1 and Section 3 of the Indemnification Agreement provide as
follows:
"1. Indemnification.
(a) Third-Party Proceedings. The Company shall indemnify its
directors and officers" (individually, the "Indemnitee"), "if
Indemnitee is or was a party or is threatened to be made a party to
any threatened, pending or completed action or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the Company) by reason of:
(i) the fact that Indemnitee is or was a director, officer,
employee or agent of the Company, or any subsidiary of the Company,
(ii) any action or inaction on the part of Indemnitee while an
officer or director of the Company or,
(iii) the fact that Indemnitee is or was serving at the request
of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including legal fees), judgments, fines and amounts
paid in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld) actually
and reasonably incurred by Indemnitee in connection with such action
or proceeding if Indemnitee acted honestly and in good faith and with
a view to the best interests of the Company, and, with respect to any
criminal or administrative action or proceeding that is enforced by
monetary penalty, if Indemnitee had reasonable grounds for believing
Indemnitee's conduct was lawful. The termination of any action or
proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that (A) Indemnitee did not act honestly, in good faith
and with a view to the best interests of the Company, or (B) with
respect to any criminal or administrative action or proceeding that is
enforced by monetary penalty, Indemnitee did not have reasonable
grounds for believing that Indemnitee's conduct was lawful.
<PAGE>
(b) Proceedings By or in the Right of the Company. The Company
shall indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or proceeding by or in the right of the Company or any
subsidiary of the Company to procure a judgment in its favor by reason
of:
(i) the fact that Indemnitee is or was a director, officer,
employee or agent of the Company, or any subsidiary of the Company,
(ii) any action or inaction on the part of Indemnitee while an
officer or director of the Company or
(iii) the fact that Indemnitee is or was serving at the request
of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including legal fees) and, to the fullest extent
permitted by law, amounts paid in settlement, in each case to the
extent actually and reasonably incurred by Indemnitee in connection
with the defense or settlement of such action or proceeding if
Indemnitee acted honestly and in good faith and with a view to the
best interests of the Company, and, with respect to any criminal or
administrative action or proceeding that is enforced by monetary
penalty, had reasonably grounds for believing Indemnitee's conduct was
lawful, and such indemnification is approved by a court of competent
jurisdiction in accordance with applicable law.
(c) Tax Gross-Up. If Indemnitee is required by law to pay any tax
on account of receipt of any amount under this Agreement, the Company
shall increase the amount payable to Indemnitee such that the amount
received by Indemnitee, after deduction of all applicable taxes, is
equal to the amount that Indemnitee would have received under this
Agreement had such tax not been payable, provided that Indemnitee
takes all reasonable steps to minimize the amount of such tax and
provides the Company with evidence satisfactory to the Company, acting
reasonably, that such steps have been taken."
3. Additional indemnification Rights; Nonexclusivity
(a) Scope. Notwithstanding any other provision of this
Agreement, the Company hereby agrees to indemnify the Indemnitee
to the fullest extent permitted by law, notwithstanding that
such indemnification is not specifically authorized by other
provisions of this Agreement, the Company's Articles of
Incorporation, the Company's By-laws or by statute. In the
event of any change, after the date of this Agreement, in any
<PAGE>
applicable law, statute or rule which expands the right of a
Canadian corporation to indemnify a member of its board of
directors, an officer or other corporate agent, such changes
shall be, ipso facto, within the purview of Indemnitee's rights
and Company's obligations under this Agreement. In the event of
any change in applicable law, statute, or rule which narrows the
right of a Canadian corporation to indemnify a member of its
Board of Directors, an officer, or other, or other corporate
agent, such changes, to the extent not otherwise required by
such law, statute, or rule to be applied to this Agreement,
shall have no effect on this Agreement or the parties' rights
and obligations hereunder.
(b) Nonexclusivity. The indemnification provided by this
Agreement shall not be deemed exclusive of any rights to which
Indemnitee may be entitled under the Company's Articles of
Incorporation, its By-laws, any agreement, any vote of
shareholders or disinterested directors, the Canada Business
Corporations Act, as amended, or otherwise, both as to action in
Indemnitee's official capacity and as to action in another
capacity while holding such office. The indemnification
provided under this Agreement shall continue as to Indemnitee
for any action taken or not taken while serving in an
indemnified capacity even though he may have ceased to serve in
such capacity at the time of any action or other covered
proceeding."
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to
directors, officers or 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 against the
Registrant 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 policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
The directors and officers of the Registrant are covered by insurance
policies indemnifying against certain liabilities, including liabilities
<PAGE>
arising under the Securities Act, which might be incurred by them in such
capacities and against which they cannot be indemnified by the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
4(a) Articles of Incorporation of the Company dated March 9, 1994
(incorporated by reference to Exhibit 3.1 of the Company's
Registration Statement made on Form F-1, dated July 1, 1999),
as amended by Certificate and Articles of Amendment dated May
7, 1999 (incorporated by reference to Exhibit 3.1 of the
Company's Registration Statement made on Form F-1, dated July
1, 1999)
4(b) General By-Laws of the Company, as amended (incorporated by
reference to Exhibit 3.1 of the Company's Registration
Statement made on Form F-1, dated July 1, 1999)
4(c) Creo Products Inc. 1996 Stock Option Plan
5 Opinion of Getz Prince Wells
23(a) Consent of PricewaterhouseCoopers LLP
23(b) Consent of KPMG LLP
24 Power of Attorney (included on the signature page hereto)
99 Form of Indemnification Agreement between the Company and each
of its Directors and Officers (incorporated by reference to
Exhibit 10.2 of the Company's Registration Statement made on
Form F-1, dated July 1, 1999)
Item 9. Undertakings.
The Company 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 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;
(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 set forth in
this Registration Statement;
<PAGE>
provided, however, that the undertakings set forth in paragraphs (i) and
(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 in this
Registration Statement.
(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.
(4) 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 each filing
of each plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this 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.
(5) Insofar as indemnification for liabilities arising under the 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 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 Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Creo
Products Inc. 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 City of Burnaby, Province of British Columbia,
on the __ day of ___, 2000.
CREO PRODUCTS INC.
(Registrant)
/s/ Thomas A. Kordyback
-------------------------
Thomas A. Kordyback
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
of Creo Products Inc. in their respective capacities set forth below
constitutes and appoints Amos Michelson and Thomas A. Kordyback, and each of
them, his or her true and lawful attorneys-in-fact and agents, 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 do any and all acts and
all things and to execute any and all instruments which said attorney and
agent may deem necessary or desirable to enable the Company to comply with
the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission thereunder in
connection with the registration under such Act of shares of Common Stock of
the Company to be issued by the Company pursuant to, or upon exercise of
stock options granted under, the 1996 Stock Option Plan to the extent that
any such registration may be required in the opinion of the executive
officers of the Company, upon the advice of counsel, including without
limitation, the power and authority to sign the name of the undersigned
individual in the capacity indicated below opposite the name of such
individual to the Registration Statement on Form S-8 or any Form relating to
the registration of such Common Stock, to be filed with the Securities and
Exchange Commission with respect to said Common Stock, to sign any and all
amendments (including post-effective amendments) and supplements to such
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, as fully to all intents and purposes as
he or she might or could do in person, hereby ratifying and confirming all
<PAGE>
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 dates indicated.
Signature Title Date
--------- ----- ----
/s/ Amos Michelson Chief Executive Officer March 7, 2000
- --------------------- and Director (Principal
Amos Michelson Executive Officer)
/s/ Thomas Kordyback Vice President, Finance, March 7, 2000
- ---------------------- Chief Financial Officer
Thomas A. Kordyback and Secretary (Principal
Financial and Accounting
Officer)
/s/ Daniel Gelbart President and Director March 7, 2000
- ----------------------
Daniel Gelbart
/s/ Raphael H. Amit Chair of the Board and March 7, 2000
- ---------------------- Director
Raphael H. Amit
/s/ Thomas D. Berman Director March 7, 2000
- ----------------------
Thomas D. Berman
/s/ John J. Bu Authorized Representative March 9, 2000
- ---------------------- in the United States,
John J. Bu Director
/s/ Douglas H. Richardson Director March 8, 2000
- -------------------------
Douglas H. Richardson
/s/ Kenneth A. Spencer Director March 7, 2000
- -------------------------
Kenneth A. Spencer
/s/ Charles Young Director March 7, 2000
- -------------------------
Charles Young
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
4(a) Articles of Incorporation of the Company dated March
9, 1994 (incorporated by reference to Exhibit 3.1 of
the Company's Registration Statement made on Form F-1,
dated July 1, 1999 ), as amended by Certificate and
Articles of Amendment dated May 7, 1999 (incorporated
by reference to Exhibit 3.1 of the Company's
Registration Statement made on Form F-1, dated July 1,
1999)
4(b) General By-Laws of the Company, as amended
(incorporated by reference to Exhibit 3.1 of the
Company's Registration Statement made on Form F-1,
dated July 1, 1999)
4(c)* Creo Products Inc. 1996 Stock Option Plan, as amended
5* Opinion of Getz Prince Wells
23(a)* Consent of PricewaterhouseCoopers LLP
23(b)* Consent of KPMG LLP
24* Power of Attorney (included on the signature page
hereto)
99 Form of Indemnification Agreement between the Company
and each of its Directors and Officers (incorporated by
reference to Exhibit 10.2 of the Company's Registration
Statement made on Form F-1, dated July 1, 1999)
- ---------------------
*Filed herewith
Exhibit 4(c)
------------
As amended pursuant to Board of Directors
Resolution No. 28 of July 26, 1999
CREO PRODUCTS INC.
1996 STOCK OPTION PLAN
1. Purpose of the Plan. The purposes of this Stock Option Plan
are to attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentive to Employees and
Consultants of the Company and its Subsidiaries and to promote the success of
the Company's business. Options granted under the Plan may be Incentive
Stock Options (as defined under Section 422 of the Code) or Non statutory
Stock Options, as determined by the Administrator at the time of grant of an
option and subject to the applicable provisions of Section 422 of the Code,
as amended, and the regulations promulgated thereunder.
2. Definitions. As used herein, the following definitions shall
apply:
(a) "Administrator" means the Board or any of its Committees
appointed pursuant to Section 4 of the Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the United States Internal Revenue Code of 1986,
as amended.
(d) "Committee" means a Committee appointed by the Board of
Directors in accordance with Section 4 of the Plan.
(e) "Common Shares" means the common shares in the capital of the
Company.
(f) "Company" means Creo Products Inc., a Canadian corporation.
(g) "Consultant" means any person who is engaged by the Company or
a Subsidiary to render consulting or advisory services and is
compensated for such services. The term Consultant shall not include
directors who are not compensated for their services or are paid only a
director's fee by the Company.
(h) "Continuous Status as an Employee or Consultant" means that
the employment or consulting relationship with the Company or a
Subsidiary is not interrupted or terminated. Continuous Status as an
<PAGE>
Employee or Consultant shall not be considered interrupted in the case
of: (i) any leave of absence approved by the Company, including sick
leave, military leave, or any other personal leave; provided, however,
that for purposes of Incentive Stock Options, no such leave may exceed
ninety (90) days, unless reemployment upon the expiration of such leave
is guaranteed by contract (including certain Company policies) or
statute; provided, further, that on the ninety-first (91st) day of any
such leave (where reemployment is not guaranteed by contract or statute)
the Optionee's Incentive Stock Option shall cease to be treated as an
Incentive Stock Option and will be treated for tax purposes as a Non
statutory Stock Option; or (ii) transfers between locations of the
Company or between the Company, its Subsidiaries or its successor.
(i) "Employee" means any person, including Officers and directors,
employed by the Company or a Subsidiary of the Company. The payment of
a director's fee by the Company shall not be sufficient to constitute
"employment" by the Company.
(j) "Exchange Act" means the United States Securities Exchange Act
of 1934, as amended.
(k) "Fair Market Value" means, as of any date, the value of Common
Shares determined as follows:
(i) If the Common Shares are listed on any established stock
exchange or a national market system, including without limitation
the National Market System of the National Association of
Securities Dealers, Inc. Automated Quotation ("NASDAQ") System, the
Fair Market Value shall be the closing sales price for such stock
(or the closing bid, if no sales were reported, as quoted on such
exchange or system for the last market trading day prior to the
time of determination) as reported in The Wall Street Journal or
such other source as the Administrator deems reliable;
(ii) If the Common Shares are quoted on the NASDAQ System (but
not on the National Market System thereof) or regularly quoted by a
recognized securities dealer but selling prices are not reported,
the Fair Market Value shall be the mean between the high bid and
low asked prices for the Common Shares or;
(iii) In the absence of an established market for the
Common Shares, the Fair Market Value thereof shall be determined in
good faith by the Administrator.
(l) "Incentive Stock Option" means an Option intended to qualify
as an incentive stock option within the meaning of Section 422 of the
Code.
-2-
<PAGE>
(m) "IPO" means an initial public offering in any jurisdiction of
securities of the Company.
(n) "Nonstatutory Stock Option" means an Option not intended to
qualify as an Incentive Stock Option.
(o) "Officer" means a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(p) "Option" means a stock option granted pursuant to the Plan.
(q) "Optioned Shares" means the Common Shares subject to an
Option.
(r) "Optionee" means an Employee or Consultant who receives an
Option.
(s) "Parent" means a "parent corporation", whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(t) "Plan" means this 1996 Stock Option Plan.
(u) "Share" means a Common Share, as adjusted in accordance with
Section 12 below.
(v) "Subsidiary" means a "subsidiary corporation", whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of
Section 12 of the Plan, the maximum aggregate number of Shares which may be
optioned and sold under the Plan is 8,000,000 Common Shares. The shares may
be authorized, but unissued, or reacquired Common Shares.
If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased Shares which were
subject thereto shall, unless the Plan shall have been terminated, become
available for future grant under the Plan; provided, however, that Shares
that have actually been issued under the Plan shall not be returned to the
Plan and shall not become available for future distribution under the Plan,
except that if unvested Shares are repurchased by the Company at their
original purchase price, and the original purchaser of such Shares did not
receive any benefits of ownership of such Shares, such Shares shall become
available for future grant under the Plan. For purposes of the preceding
sentence, voting rights shall not be considered a benefit of Share ownership.
-3-
<PAGE>
4. Administration of the Plan.
(a) Plan Procedure.
(i) Administration with Respect to Directors and Officers.
With respect to grants of Options to Employees who are also
Officers or directors of the Company, the Plan shall be
administered by (A) the Board if the Board may administer the Plan
in compliance with Rule 16b-3 promulgated under the Exchange Act or
any successor thereto ("Rule 16b-3") with respect to a plan
intended to qualify thereunder as a discretionary plan, or (B) a
Committee designated by the Board to administer the Plan, which
Committee shall be constituted in such a manner as to permit the
Plan to comply with Rule 16b-3 with respect to a plan intended to
qualify thereunder as a discretionary plan. Once appointed, such
Committee shall continue to serve in its designated capacity until
otherwise directed by the Board. From time to time the Board may
increase the size of the Committee and appoint additional members
thereof, remove members (with or without cause) and appoint new
members in substitution therefor, fill vacancies, however caused,
and remove all members of the Committee and thereafter directly
administer the Plan, all to the extent permitted by Rule 16b-3 with
respect to a plan intended to qualify thereunder as a discretionary
plan.
(ii) Multiple Administrative Bodies. If permitted by Rule
16b-3, the Plan may be administered by different bodies with
respect to directors, non-director Officers and Employees who are
neither directors nor Officers.
(iii) Administration With Respect to Consultants and Other
Employees. With respect to grants of Options to Employees or
Consultants who are neither directors nor Officers of the Company,
the Plan shall be administered by (A) the Board or (B) a committee
designated by the Board, which committee shall be constituted in
such a manner as to satisfy all applicable legal requirements
relating to the administration of incentive stock option plans,
including, without limitation, those of the Code, and of any
applicable stock exchange (the "Applicable Laws"). Once appointed,
such Committee shall continue to serve in its designated capacity
until otherwise directed by the Board. From time to time the Board
may increase the size of the Committee and appoint additional
members thereof, remove members (with or without cause) and appoint
new members in substitution therefor, fill vacancies, however
caused, and remove all members of the Committee and thereafter
directly administer the Plan, all to the extent permitted by the
Applicable Laws.
-4-
<PAGE>
(b) Powers of the Administrator. Subject to the provisions of the
Plan and, in the case of a Committee, the specific duties delegated by the
Board to such Committee, and subject to the approval of any relevant
authorities, the Administrator shall have the authority, in its discretion:
(i) to determine the Fair Market Value of the Common Shares,
in accordance with Section 2(k) of the Plan;
(ii) to select the Consultants and Employees to whom Options
may from time to time be granted hereunder;
(iii) to determine whether and to what extent Options are
granted hereunder;
(iv) to determine the number of Common Shares to be covered by
each such award granted hereunder;
(v) to determine forms of agreement for use under the Plan;
(vi) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any award granted hereunder. Such
terms and conditions include, but are not limited to, the exercise
price, the time or times when Options may be exercised (which may
be based on performance criteria), any vesting acceleration or
waiver of forfeiture restrictions, and any restriction or
limitation regarding any Option or the Common Shares relating
thereto, based in each case on such factors as the Administrator,
in its sole discretion, shall determine;
(vii) to determine whether and under what circumstances an
Option may be settled in cash under subsection 9(f) instead of
Common Shares;
(viii) with the prior approval of The Toronto Stock
Exchange, to reduce the exercise price of any Option to the then
current Fair Market Value if the Fair Market Value of the Common
Shares covered by such Option has declined since the date the
Option was granted;
(ix) to construe and interpret the terms of the Plan and
awards granted pursuant to the Plan;
(x) to prescribe, amend and rescind rules and regulations
relating to the Plan, including rules and regulations relating to
sub-plans established for the purpose of qualifying for preferred
tax treatment under foreign tax laws;
-5-
<PAGE>
(xi) to modify or amend each Option (subject to Section 13(b)
of the Plan), including the discretionary authority to extend the
post-termination exercisability period of options longer than is
otherwise provided for in the Plan but in no event shall the
exercised period of any Option be greater than 10 years from the
date of grant thereof;
(xii) to authorize any person to execute on behalf of the
Company any instrument required to effect the grant of an Option
previously granted by the Administrator;
(xiii) to determine, and make rules and restrictions
regarding, the transferability of Options; and
(xiv) to make all other determinations deemed necessary or
advisable for administering the Plan.
(c) Effect of Administrator's Decision. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees and any other holders of any Options.
5. Eligibility.
(a) Nonstatutory Stock Options may be granted to Employees and
Consultants. Incentive Stock Options may be granted only to Employees. An
Employee or Consultant who has been granted an Option may, if otherwise
eligible, be granted additional Options.
(b) Each Option shall be designated in the written option
agreement as either an Incentive Stock Option or a Nonstatutory Stock Option.
However, notwithstanding such designations, to the extent that the aggregate
Fair Market Value of the Shares underlying Incentive Stock Options are
exercisable for the first time by any Optionee during any calendar year
(under all plans of the Company and any Parent or Subsidiary) in excess of
$100,000, such excess shall be treated as Nonstatutory Stock Options.
(c) For purposes of Section 5(b), Incentive Stock Options shall be
taken into account in the order in which they were granted, and the Fair
market Value of the Shares shall be determined as of the time the Option with
respect to such Shares is granted.
(d) The Plan shall not confer upon any Optionee any right with
respect to continuation of employment or consulting relationship with the
Company, nor shall it interfere in any way with his or her right or the
Company's right to terminate his or her employment or consulting relationship
at any time, with or without cause.
-6-
<PAGE>
6. Term of Plan. The Plan shall become effective upon the
earlier to occur of its adoption by the Board of Directors or its approval by
the shareholders of the Company, as described in Section 17 of the Plan. It
shall continue in effect for a term of ten (10) years unless sooner
terminated under Section 11 of the Plan.
7. Term of Option. The term of each Option shall be the term
stated in the Option Agreement; provided, however, that the term shall be no
more than ten (10) years from the date of grant thereof. However, in the
case of an Incentive Stock Option granted to an Optionee who, at the time the
Option is granted, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or
Subsidiary, the term of the Option shall be five years from the date of grant
thereof or such shorter term as may be provided in the Option Agreement.
8. Option Exercise Price and Consideration.
(a) The per share exercise price for the Shares to be issued
pursuant to exercise of an Option shall be such price as it is determined by
the Administrator, but shall be subject to the following:
(i) In the case of an Incentive Stock Option
A. granted to an Employee who, at the time of the
grant of such Incentive Stock Option, owns stock
representing more than ten percent (10%) of the
voting power of all classes of stock of the
Company or any Parent or Subsidiary, the per
Share exercise price shall be no less than 110%
of the Fair Market Value per Share on the date
of grant.
B. granted to any Employee other than an Employee
described in the preceding paragraph, the per
Share exercise price shall be no less than 100%
of the Fair Market Value per Share on the date
of grant.
(ii) In the case of a Nonstatutory Stock Option, the per Share
exercise price shall be determined by the Administrator.
(b) The consideration to be paid for the Shares to be issued upon
exercise of an Option, including the method of payment, shall be determined
by the Administrator.
9. Exercise of Option. (a) Procedure for Exercise; Rights as a
Shareholder. Any Option granted hereunder shall be exercisable at such times
and under such conditions as determined by the Administrator, including
-7-
<PAGE>
performance criteria with respect to the Company and/or the Optionee, and as
shall be permissible under the terms of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of
such exercise has been given to the Company in accordance with the terms of
the Option by the person entitled to exercise the Option and full payment for
the Shares with respect to which the Option is exercised has been received by
the Company. Full payment may, as authorized by the Administrator, consist
of any consideration and method of payment allowable under Section 8(b) of
the Plan. Until the issuance (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the Company)
of the stock certificate evidencing such Shares, no right to vote or receive
dividends or any other rights as a shareholder shall exist with respect to
the Optioned Shares, notwithstanding the exercise of the Option. The Company
shall issue (or cause to be issued) such stock certificate promptly upon
exercise of the Option. No adjustment will be made for a dividend or other
right for which the record date is prior to the date the stock certificate is
issued, except as provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a decrease in
the number of Shares which thereafter may be available, both for purposes of
the Plan and for sale under the Option, by the number of Shares as to which
the Option is exercised.
(b) Termination of Employment or Consulting Relationship. If an
Optionee's Continuous Status as an Employee or Consultant terminates (but not
in the event of a change of status from Employee to Consultant (in which case
an Employee's Incentive Stock Option shall automatically convert to a
Nonstatutory Stock Option on the date three months and one day from the date
of such change of status) or from Consultant to Employee), other than upon
the Optionee's death or disability; the Optionee may exercise his or her
Option, but only to the extent that the Optionee was entitled to exercise it
at the date of termination and in no event later than the expiration of the
term of such Option. If, at the date of termination, the Optionee is not
entitled to exercise his or her entire Option, the Shares covered by the
unexercisable portion of the Option shall revert to the Plan. If, after
termination, the Optionee does not exercise his or her Option within the time
specified by the Administrator, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan.
(c) Disability of Optionee. In the event of termination of an
Optionee's consulting relationship or Continuous Status as an Employee as a
result of his or her disability, Optionee may, but only within six months
from the date of such termination if such termination occurs after completion
by the Company of an IPO (and in no event later than the expiration date of
-8-
<PAGE>
the term of such Option as set forth in the Option Agreement), exercise the
Option to the extent otherwise entitled to exercise it at the date of such
termination; provided, however, that if the Company completes an IPO after
such termination such Option shall terminate on the date which is the later
of the date of the IPO and the 180th day after the date of termination of
Optionee's consulting relationship or Continuous Status as an Employee as a
result of his or her disability. If such disability is not a "disability" as
such term is defined in Section 22(e)(3) of the Code, in the case of an
Incentive Stock Option such Incentive Stock Option shall automatically
convert to a Nonstatutory Stock Option on the day three months and one day
following such termination. To the extent that Optionee is not entitled to
exercise the Option at the date of termination, or if Optionee does not
exercise such Option to the extent so entitled within the time specified
herein, the Option shall terminate, and the Shares covered by such Option
shall revert to the Plan.
(d) Death of Optionee. In the event of the death of an Optionee,
the Option may be exercised at any time, but only within twelve (12) months
following the date of death where such date is after completion by the
Company of an IPO (but in no event later than the expiration of the term of
such Option as set forth in the Notice of Grant), by the Optionee's estate or
by a person who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent that the Optionee was entitled to
exercise the Option at the date of death; provided, however, that if the
Company completes an IPO after such death such Option shall terminate on the
date which is the later of the date of the IPO and the first anniversary of
the date of death. If, at the time of death, the Optionee was not entitled
to exercise his or her entire Option, the Shares covered by the unexercisable
portion of the Option shall immediately revert to the Plan. If, after death,
the Optionee's estate or a person who acquired the right to exercise the
Option by bequest or inheritance does not exercise the Option within the time
specified herein, the Option shall terminate, and the Shares covered by such
Option shall revert to the Plan.
(e) Rule 16b-3. Options granted to person subject to Section
16(b) of the Exchange Act must comply with Rule 16b-3 and shall contain such
additional conditions or restrictions as may be required thereunder to
qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions.
(f) Buyout Provisions. The Administrator may at any time offer to
buy out for a payment in cash or Shares, an Option previously granted, based
on such terms and conditions as the Administrator shall establish and
communicate to the Optionee at the time that such offer is made.
10. Non-Transferability of Options. Subject to any rules to the
contrary established by the Administrator, Options may not be sold, pledged,
-9-
<PAGE>
assigned, hypothecated, transferred, or disposed of in any manner other than
by will or by the laws of descent or distribution and may be exercised,
during the lifetime of the Optionee, only by the Optionee.
11. Adjustments Upon Changes in Capitalization or Merger.
(a) Changes in Capitalization. Subject to any required action by
the shareholders of the Company, the number of Common Shares covered by each
outstanding Option, and the number of Common Shares which have been
authorized for issuance under the Plan but as to which no Options have yet
been granted or which have been returned to the Plan upon cancellation or
expiration of an Option, as well as the price per Common Share covered by
each such outstanding Option, shall be proportionately adjusted for any
increase or decrease in the number of issued Common Shares resulting from a
share subdivision or consolidation, stock dividend, combination or
reclassification of the Common Shares, or any other increase or decrease in
the number of issued Common Shares effected without receipt of consideration
by the Company; provided, however, that conversion of any convertible
securities of the Company shall not be deemed to have been "effected without
receipt of consideration." Such adjustment shall be made by the
Administrator, whose determination in that respect shall be final, binding
and conclusive. Except as expressly provided herein, no issuance by the
Company of shares of any class, or securities convertible into shares of any
class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of Common Shares subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, to the extent that an Option has
not been previously exercised, it will terminate immediately prior to the
consummation of such proposed action. The Administrator may, in the exercise
of its sole discretion in such instances, declare that any Option shall
terminate as of a date fixed by the Administrator and give each Optionee the
right to exercise his or her Option as to all or any part of the Optioned
Shares, including shares as to which the Option would not otherwise be
exercisable.
(c) Merger. In the event of a merger of the Company with or into
another corporation, the Option shall be assumed or an equivalent option
shall be substituted by such successor corporation or a parent or subsidiary
of such successor corporation. If, in such event, the Option is not assumed
or substituted, the Option shall terminate as of the date of the closing of
the merger. For the purposes of this paragraph, the Option shall be
considered assumed if, following the merger, the option confers the right to
purchase, for each Optioned Share subject to the Option immediately prior to
the merger, the consideration (whether stock, cash, or other securities or
property) received in the merger by holders of Common Shares for each Common
Share held on the effective date of the transaction (and if holders were
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<PAGE>
offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding Common Shares); provided, however,
that if such consideration received in the merger was not solely common stock
of the successor corporation or its Parent, the Administrator may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the Option for each Optioned Share subject to
the Option to be solely common stock of the successor corporation or its
Parent equal in fair market value to the per share consideration received by
holders of Common Shares in the merger.
12. Time of Granting Options. The date of grant of an Option
shall, for all purposes, be the date on which the Administrator makes the
determination granting such Option, or such other date as is determined by
the Board. Notice of the determination shall be given to each Employee or
Consultant to whom an Option is so granted within a reasonable time after the
date of such grant.
13. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time amend,
alter, suspend or discontinue, or terminate the Plan. To the extent
necessary and desirable to comply with Rule 16b-3 under the Exchange Act or
with Section 422 of the Code (or any other applicable law or regulation,
including the requirements of any exchange or quotation system on which the
Common Shares are listed or quoted), the Company shall obtain shareholder
approval of any Plan amendment in such a manner and to such a degree as
required by the applicable law, rule or regulation.
(b) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not affect Options already granted, and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee
and the Administrator, which agreement must be in writing and signed by the
Optionee and the Company.
14. Conditions Upon Issuance of Shares. Shares shall not be
issued pursuant to the exercise of an Option unless the exercise of such
Option and the issuance and delivery of such Shares pursuant thereto shall
comply with all applicable laws, including, without limitation, the rules and
regulations promulgated thereunder, and the requirements of any stock
exchange upon which the Shares may then be listed, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance.
As a condition to the exercise of an Option, the Company may
require the person exercising such Option to represent and warrant at the
time of any such exercise that the Shares are being purchased only for
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<PAGE>
investment and without any present intention to sell or distribute such
Shares if, in the opinion of counsel for the Company, such a representation
is required by any applicable laws, rules or regulations.
15. Reservation of Shares. The Company, during the term of this
Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan.
If the Optioned Shares covered by an Option exceeds, as of the date
of grant, the number of Shares which may be issued under the Plan without
additional shareholder approval, such Option shall be void with respect to
such excess Optioned Shares, unless shareholder approval of an amendment
sufficiently increasing the number of Shares subject to the Plan is timely
obtained in accordance with Section 13(a) of the Plan.
The inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed by the
Company's counsel to be necessary to the lawful issuance and sale of any
Shares hereunder, shall relieve the Company of any liability in respect of
the failure to issue or sell such Shares as to which such requisite authority
shall not have been obtained.
16. Agreements. Options shall be evidenced by written agreements
in such form as the Administrator shall approve from time to time.
17. Shareholder Approval. Continuance of the plan shall be
subject to approval by the shareholders of the Company within twelve months
before or after the date the Plan is adopted. Such shareholder approval
shall be obtained in the degree and manner required under applicable law and
the rules of any stock exchange upon which the Common Shares are listed.
-12-
Exhibit 5
---------
March 9, 2000
Email: [email protected]
Creo Products Inc.
3700 Gilmore Way
Burnaby, B.C.
Canada
V5G 4M1
Dear Sirs:
You have requested our opinion with respect to the registration by
Creo Products Inc., a corporation organized under the laws of Canada (the
"Corporation"), pursuant to a Registration Statement on Form S 8 (the
"Registration Statement") under the United States Securities Act of 1933, as
amended, of an aggregate of 3,500,000 shares of the Company's common stock,
without par value (the "Common Stock" or "Common Shares") consisting of
shares which may be issued pursuant to the Corporation's 1996 Stock Option
Plan (the "Plan").
For the purposes of this opinion we have examined originals or
copies, certified or otherwise identified to our satisfaction, of such
documents, corporate records, certificates of public officials and other
instruments, and have conducted such other investigations of fact and law as
we have considered relevant and necessary to form a basis for the opinions
hereinafter expressed. We have assumed (i) the genuineness of all
signatures, (ii) that all documents and instruments submitted to us as copies
conform with the originals, and (iii) the due execution and delivery of all
documents where due execution and delivery are a pre-requisite to the
effectiveness. As to matters of fact, we have relied upon statements and
representations of officers and other representatives of the Corporation and
certificates of public officials. We have not independently verified such
facts.
We are solicitors qualified to practice law only in the Province of
British Columbia, Canada, and we express no opinion as to any laws or any
matters governed by any laws other than the laws of the Province of British
Columbia, Canada and the federal laws of Canada applicable therein.
<PAGE>
Based on and subject to the foregoing, it is our opinion that the Common
Shares which may be issued pursuant to the Plan will, when issued and sold as
contemplated by the Registration Statement, be duly authorized, validly
issued, fully paid and non-assessable.
Yours truly,
/s/ GETZ PRINCE WELLS
- -----------------------
GETZ PRINCE WELLS
-2-
Exhibit 23(a)
-------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement of Creo Products Inc. on Form S-8 and in the related Prospectus of
our reports dated November 20, 1997 and our audits of the consolidated
financial statements, as defined in the notes to the financial statements,
for the years ended September 30, 1997 and September 30, 1996, included in
the Creo Products Inc. Registration Statement on Form F-1 filed with the
Securities and Exchange Commission on July 1, 1999.
/s/ PricewaterhouseCoopers LLP
------------------------------
Vancouver, Canada
March 8, 2000
Exhibit 23(b)
-------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement of Creo Products Inc. on Form S-8 and in the related Prospectus of
our reports dated November 23, 1998 and our audits of the consolidated
financial statements, as defined in the notes to the financial statements,
for the year ended September 30, 1998, included in the Creo Products Inc.
Registration Statement on Form F-1 filed with the Securities and Exchange
Commission on July 1, 1999.
/s/ KPMG LLP
-----------------------
Chartered Accountants
Vancouver, Canada
March 8, 2000
