As filed with the
Securities and Exchange
Commission on April 23, 1998
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
FAFCO, INC.
(Exact name of Registrant as specified in its charter)
California 94-2159547
(State of Incorporation) (I.R.S. Employer Identification No.)
2690 Middlefield Road
Redwood City, California 94063
(Address, including zip code, of Registrant's principal executive offices)
1991 STOCK OPTION PLAN
(Full title of the plan)
FREEMAN A. FORD
President and Chief Executive Officer
FAFCO, Inc.
2690 Middlefield Road
Redwood City, California 94063
(650) 363-2690
(Name, address, and telephone number, including area code, of agent
for service)
Copy to:
ANN YVONNE WALKER, ESQ.
Wilson, Sonsini, Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
Title of Securities Amount to be Proposed Proposed Amount of
to be Registered Registered Maximum Maximum Registration
Offering Aggregate Fee
Price Per Share Offering
Price
Common Stock issuable
under 1991 Stock
Option Plan 250,000 (1) $ 1.25/sh (2) $ 312,500(2) $ 92.19
</TABLE>
(1) The shares to be registered under this Registration Statement
represent additional shares authorized to be issued under the 1991
Stock Option Plan. An aggregate of 250,000 shares were previously
registered on Registrant's registration statement on Form S-8 (SEC File No.
33-76220) filed with the Securities and Exchange Commission on March 10, 1994.
Pursuant to Rule 429, this prospectus relating to this Registration Statement
also constitutes the prospectus relating to such previously filed
registration statement. (2) Estimated in accordance with Rule 457(c) under
the Securities Act of 1933, as amended (the "Securities Act") solely for
the purpose of calculating the total registration fee. Because the price at
which options to be granted in the future may be exercised is not currently
determined, computation is based upon the average of the bid and asked price
of the Common Stock in the over-the-counter market as of the close of
business on April 21, 1998.
FAFCO, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Explanatory Note
This Registration Statement on Form S-8 is being filed for the purpose of
registering an additional 250,000 shares of the Registrant's Common Stock
to be issued pursuant to the Registrant's 1991 Stock Option Plan. The
Registration Statement on Form S-8 previously filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of 1933,
as amended (the "Securities Act") relating to the Registrant's 1991
Stock Option Plan (SEC File No. 33-76220) is incorporated herein by reference.
Item 3. Incorporation of Documents by Reference
There are hereby incorporated by reference into this Registration Statement
and into the Prospectus relating to this Registration Statement pursuant to
Rule 428 the following documents and information heretofore filed with the
Commission:
1. The Registrant's annual report on Form 10-K for the fiscal year ended
December 31, 1997.
2. The description of Registrant's Common Stock contained in Registrant's
Registration Statement on Form 8-A, filed January 26, 1982 pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including any amendment or report filed for purposes
of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof, and prior to the filing
of a post-effective amendment that indicates that all securities offered
have been sold or that deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be part hereof
from the date of filing of such documents.
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 317 of the California General Corporation Law (the "CGCL")
authorizes a court to award, or a corporation's board of directors to grant,
indemnity to directors and officers who are parties or are threatened to be
made parties to any proceeding (with certain exceptions) by reason of the
fact that the person is or was an agent of the corporation, against expenses,
judgments, fines, settlements and other amounts actually and reasonably
incurred in connection with the proceeding if that person acted in good
faith and in a manner the person reasonably believed to be in the best
interests of the corporation. Section 204 of the CGCL provides that this
limitation on liability has no effect on a director's liability (i) for acts
or omissions that involve intentional misconduct or a knowing and culpable
violation of law, (ii) for acts or omissions that a director believes to be
contrary to the best interests of the corporation or its shareholders or
that involve the absence of good faith on the part of the director, (iii)
for any transaction from which a director derived an improper personal
benefit, (iv) for acts or omissions that show a reckless disregard for the
director's duty to the corporation or its shareholders in circumstances in
which the director was aware, or should have been aware, in the ordinary
course of performing a director's duties, of a risk of a serious injury to
the corporation or its shareholders, (v) for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an abdication
of the director's duty to the corporation or its shareholders, (vi) under
Section 310 of the CGCL (concerning contracts or transactions between the
corporation and a director) or (vii) under Section 316 of the CGCL
(directors' liability for improper dividends, loans and guarantees).
Section 317 does not extend to acts or omissions of a director in his or her
capacity as an officer. Further, Section 317 has no effect on claims
arising under federal or state securities laws and does not affect the
availability of injunctions and other equitable remedies available to the
Company's shareholders for any violation of a director's fiduciary duty
to the Company or its shareholders. Although the validity and scope of the
legislation underlying Section 317 have not yet been interpreted to any
significant extent by the California courts, Section 317 may relieve
directors of monetary liability to the Company for grossly negligent conduct,
including conduct in situations involving attempted takeovers of the Company.
The Company's Bylaws provide that the Company shall indemnify its directors
and officers and may indemnify its employees and other agents to the
fullest extent permitted by law. The Company's Bylaws also permit the Company
to secure insurance on behalf of any officer, director, employee or other
agent for any liability arising out of his or her actions in such capacity,
regardless of whether the Company would have the power to indemnify him or
her against such liability under the California General Corporation Law.
The Company also maintains insurance policies that insure its officers and
directors against certain liabilities.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit
Number Document
4.1 Registrant's 1991 Stock Option Plan and form of Stock Option
Agreement used thereunder.
5.1 Opinion of Counsel as to legality of securities being registered.
23.1 Consent of Burr, Pilger & Mayer, Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page 6).
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 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.
(h) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the items described in Item 6 of Part II of this
Registration Statement, or otherwise, the Registrant has been advised that
in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action,suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
FAFCO, 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 the City of Redwood City, State of California,
on the 23 day of April, 1998.
FAFCO, INC.
By:
/S/Alex N. Watt, Executive Vice
President and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Freeman A. Ford and Alex N. Watt, or
either of them, acting individually, as his attorney-in-fact, with full power
of substitution, for him and in any and all capacities, to sign any and
all amendments to this Registration Statement (including post-effective
amendments) and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be
signed by our said attorney to any and all amendments to the Registration
Statement.
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/Freeman A. Ford Chairman of the Board, President April 23,1998
and Chief Executive Officer
(Principal Executive Officer) and
Director
/S/Alex N. Watt Vice President, Finance & April 23, 1998
Administration and Chief Financial
Officer (Principal Financial and
Accounting Officer)
/S/William A. Berry Director April 23,1998
/S/Robert W. Selig, Jr.Director April 23, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
Registration Statement on Form S-8
FAFCO, INC.
INDEX TO EXHIBITS
Number Description
4.1* Registrant's 1991 Stock Option Plan
5.1 Opinion of Counsel as to legality of securities being registered
23.1 Consent of Burr, Pilger & Mayer, Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page 6)
EXHIBIT 5.1
(*) Incorporated by reference to Exhibit file with Registrant's Annual
Report on Form 10K for the fiscal year ended December 31, 1994.
April 27, 1998
FAFCO, Inc.
2960 Middlefield Rd.
Redwood City, CA 94063
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined (i) the Registration Statement on Form S-8 (the Registration
Statement) to be filed by FAFCO, Inc., a California corporation (the
"Company" or "you"), with the Securities and Exchange Commission on or about
April 27, 1998 in connection with the registration under the Securities Act
of 1933, as amended (the "Act"), of an aggregate of 250,000 shares of
Common Stock (the "Shares") reserved for issuance upon exercise of options
granted under the Company's to be 1991 Stock Option Plan (the "1991 Stock
Plan"), and (ii) the Prospectus dated as of the filing date of the
Registration Statement that relates to the 1991 Stock Plan and to such
Registration Statement pursuant to Rule 428(a)(1) promulgated under the
Act the "Prospectus"). As your legal counsel, we have reviewed the actions
proposed to be taken by you in connection with the proposed sale and
issuance of the shares by the Company under the 1991 Stock Plan.
It is our opinion that, upon completion of the actions being taken, or
contemplated by us as your counsel to be taken, by you prior to the
issuance of the shares pursuant to the Registration Statement, the
Prospectus and the 1991 Stock Plan. The Shares when issued in compliance
with the provisions of the 1991 Stock Plan, 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, and further consent to the use of our name wherever
appearing in the Registration Statement, the Prospectus and any subsequent
amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICK & ROSATI
Professional Corporation
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 17, 1998, which appears
in the Company's annual report on Form 10-K for the fiscal year ended
December 31, 1997.
/s/ BURR, PILGER & MAYER
San Francisco, California
April 21, 1998
This Registration Statement has several tables set up using
tabbing, instead of tables or columns. This is a rush revision right
now, but in the near future, those tables need to be properly formatted.
Thanks!
TABLE DEF HERE
This is CG Times 12pt
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