Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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CYBEROPTICS CORPORATION
(Exact name of issuer as specified in its charter)
Minnesota 41-1472057
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5900 Golden Hills Drive
Golden Valley, Minnesota 55416
(Address of Principal Executive Offices) (Zip Code)
CYBEROPTICS CORPORATION STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
CYBEROPTICS CORPORATION RESTATED STOCK OPTION PLAN
(Full title of the plan)
John D. Beagan Copy to:
Vice President--Finance Thomas Martin
CyberOptics Corporation Dorsey & Whitney LLP
5900 Golden Hills Drive 220 South Sixth Street
Golden Valley, Minnesota 55416 Minneapolis, MN 55402
(Name and address of agent for service)
(612) 542-5000
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price(2) Fee
- --------------------------------------------------------------------------------
Common Stock
no par value 480,000 $25.875 $12,420,000 $3,764
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(1) The number of shares being registered represents 400,000 additional shares
of Common Stock which may be issued pursuant to the CyberOptics Corporation
Restated Stock Option Plan and 80,000 shares which may be issued pursuant to the
CyberOptics Corporation Stock Option Plan for Non-Employee Directors, in
addition to shares previously registered.
(2) Estimated solely for the purpose of determining the registration fee. The
proposed maximum offering price is based upon the average of the high and low
selling prices of the Common Stock quoted on NASDAQ NMS for October 28, 1997.
Pursuant to General Instruction E of the General Instructions to the Form S-8,
this Registration Statement incorporates by reference the Registrant's
Registration Statement on Form S-8 filed April 6, 1988 (No. 33-21092) and the
Registrant's Registration Statement on Form S-8 filed July 1, 1991 (No.
33-41509), the Registrant's Registration Statement on Form S-8 filed June 25,
1994 (No. 33-80838) and the Registrant's Registration Statement on Form S-8
filed July 1, 1991 (33-41515).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
Exhibit Number Description
-------------- -----------
4.1 Restated Stock Option Plan of the Company, as amended.
4.2 Stock Option Plan for Non-Employee Directors, as amended.
5 Opinion of Dorsey & Whitney LLP.
24.1 Consent of Coopers & Lybrand L.L.P.
24.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5 above).
25 Power of Attorney (included in the signature page to this
Registration Statement).
Item 9. Undertakings.
A. Post-Effective Amendments
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 of 1933;
(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;
(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 subparagraphs (i) and (ii) above will not apply if
the information required to be included in a post-effective amendment by
those subparagraphs is contained in periodic reports filed 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
<PAGE>
B. Subsequent Documents Incorporated by Reference
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Claims for Indemnification
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the indemnification provisions described herein, 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 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 of 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, 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 Minneapolis, State of Minnesota, on this 27th day of
October, 1997.
CYBEROPTICS CORPORATION
By: /s/ STEVEN K.CASE
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Steven K. Case, President
POWER OF ATTORNEY
The officers and directors of CyberOptics Corporation, whose signatures
appear below, hereby constitute and appoint Steven K. Case and John D. Beagan,
and each of them (with full power to each of them to act alone), the true and
lawful attorney-in-fact to sign and execute on behalf of the undersigned, any
amendment or amendments to this Registration Statement of CyberOptics
Corporation, and each of the undersigned does hereby ratify and confirm all that
said attorneys shall do or cause to be done by virtue thereof.
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:
<TABLE>
<CAPTION>
Name Title
---- -----
<S> <C> <C>
/s/ STEVEN K.CASE President and Director October 27, 1997
----------------------------- (PRINCIPAL EXECUTIVE OFFICER)
Steven K. Case
/s/ JOHN D. BEAGAN Vice President-Operations and October 27, 1997
----------------------------- Chief Financial Officer
John D. Beagan (PRINCIPAL FINANCIAL OFFICER)
/s/ SCOTT LARSON Controller October 27, 1997
----------------------------- (PRINCIPAL ACCOUNTING OFFICER)
Scott Larson
/s/ ALEX B. CIMOCHOWSKI Director October 27, 1997
-----------------------------
Alex B. Cimochowski
/s/ ERWIN A. KELEN Director October 27, 1997
-----------------------------
Erwin A. Kelen
/s/ GEORGE E. KLINE Director October 27, 1997
-----------------------------
George E. Kline
/s/ STEVEN M. QUIST Director October 27, 1997
-----------------------------
Steven M. Quist
/s/ P. JUNE MIN Director October 27, 1997
-----------------------------
P. June Min
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit Number Description Page
- -------------- ----------- ----
4.1 Restated Stock Option Plan, as amended.
4.2 Stock Option Plan for Non-Employee Directors, as
amended.
5 Opinion of Dorsey & Whitney LLP.
24.1 Consent of Coopers & Lybrand L.L.P.
24.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5
above).
25 Powers of Attorney (included in the signature page to
this Registration Statement)
Exhibit 4.1
As Amended on
April 22, 1988, April 17, 1990,
May 12, 1992, May 11, 1993,
May 10, 1994 and May 14, 1996.
CYBEROPTICS CORPORATION
RESTATED STOCK OPTION PLAN
1. Purpose of Plan.
This Plan shall be known as the "CyberOptics Corporation Restated Stock
Option Plan" and is hereinafter referred to as the "Plan". The purpose of the
Plan is to aid in maintaining and developing personnel capable of assuring the
future success of CyberOptics Corporation, a Minnesota Corporation (the
"Company"), to offer such personnel additional incentives to put forth maximum
efforts for the success of the business, and to afford them an opportunity to
acquire a proprietary interest in the Company through stock options as provided
herein. Options granted under this Plan may be either incentive stock options
("Incentive Stock Options") within the meaning of Section 422A of the Internal
Revenue Code of 1954, as in effect prior to January 1, 1987 or the Internal
Revenue Code of 1986, whichever is applicable (the "Code"), or options which do
not qualify as Incentive Stock Options.
2. Stock Subject to Plan.
Subject to the provisions of Section 12 hereof, the stock to be subject to
options under the Plan shall be the Company's authorized Common Stock, no par
value per share. Such shares may be either authorized but unissued shares, or
issued shares which have been reacquired by the Company. Subject to the
adjustment as provided in Section 12 hereof, the maximum number of shares on
which options may be exercised under this Plan shall be 1,436,250 shares, less
the number of shares issued upon exercise of options under the Plan since its
initial adoption. If an option under the Plan expires, or for any reason is
terminated or unexercised with respect to any shares, such shares shall again be
available for options thereafter granted during the term of the Plan.
3. Administration of Plan.
(a) The Plan shall be administered by a committee (the "Committee") of
one or more directors of the Company who are not also employees of the Company
and all of whom shall be "disinterested persons" with respect to the Plan within
the meaning of Rule 16b-3(d)(3) of the Securities and Exchange Commission, or
any successor section. The members of the Committee shall be appointed by and
serve at the pleasure of the Board of Directors of the Company.
(b) The Committee shall have plenary authority in its discretion, but
subject to the express provisions of this Plan, to determine: (i) the purchase
price of the Common Shares covered by each option, (ii) the employees to whom
and the time or times at which such options shall be granted and the number of
shares to be subject to each option, (iii) the terms of exercise of each option,
(iv) to accelerate the time at which all or any part of an option may be
exercised, (v) to amend or modify the terms of any option with the consent of
the optionee, (vi) to interpret the Plan, (vii) to prescribe, amend and rescind
rules and regulations relating to the Plan, (viii) to determine the terms and
provisions of each option agreement under this Plan (which agreements need not
be identical) including the designation of those options intended to be
Incentive Stock Options, and (ix) to make all other determinations necessary or
advisable for the administration of the Plan, subject to the exclusive authority
of the Board of Directors under Section 13 herein to amend or terminate the
Plan. The Committee's determinations on the foregoing matters shall be final and
conclusive.
<PAGE>
(c) The Committee shall select one of its members as its Chairman and
shall hold its meetings at such times and places as it may determine. A majority
of its members shall constitute a quorum. All determinations of the Committee
shall be made by not less than a majority of its members. Any decision or
determination reduced to writing and signed by all of the members of the
Committee shall be fully effective as if it had been made by a majority vote at
a meeting duly called and held. The granting of an option pursuant to the Plan
shall be effective only if a written agreement shall have been duly executed and
delivered by and on behalf of the Company and the employee to whom such right is
granted. The Committee may appoint a Secretary and may make such rules and
regulations for the conduct of its business as it shall deem advisable.
4. Eligibility.
Incentive Stock Options may only be granted to any full or part-time
employee (which terms as used herein includes, but is not limited to, officers
and directors who are also employees) of the Company and of its present and
future subsidiary corporations (herein called "subsidiaries"). Consultants or
independent contractors providing valuable services to the Company or one of its
subsidiaries who are not also employees thereof shall be eligible to receive
options which do not qualify as Incentive Stock Options. Members of the
Committee shall not be eligible to receive options under the Plan. In
determining the employees to whom options shall be granted and the number of
shares subject to each option, the Committee may take into account the nature of
services rendered by the respective employees, their present and potential
contributions to the success of the Company and such other factors as the
Committee in its discretion shall deem relevant. A person who has been granted
an option under this Plan may be granted an additional option or options under
the Plan if the Committee shall determine; provided, however, that (a) for
Incentive Stock Options granted before January 1, 1987, the aggregate fair
market value (determined as of the time the option is granted) of the Common
Stock for which any employee may be granted Incentive Stock Options in any
calendar year (under all plans described in Subsection (b) of Section 422A of
the Code of his employer corporation and its parent and subsidiary corporations)
shall not exceed $100,000 plus any unused limit carryover to such year,
determined in the manner set forth in Section 422A(c)(4) of the Code, (b) for
Incentive Stock Options granted after December 31, 1986, the aggregate fair
market value (determined at the time the Incentive Stock Option is granted) of
the stock with respect to which all Incentive Stock Options are exercisable for
the first time by an employee during any calendar year (under all plans
described in subsection (b)(7) of Section 422A of the Code of his employer
corporation and its parent or subsidiary corporations) shall not exceed
$100,000, and (c) notwithstanding any other provision in this Plan, no person
may be granted an option or options under the Plan for more than 100,000 Shares
in the aggregate in any one calendar year period. The foregoing annual
limitation specifically includes the grant of any "performance-based" awards
within the meaning of Section 162(m) of the Code.
5. Price.
The option price for all Incentive Stock Options granted under the Plan
shall be determined by the Committee but shall not be less than 100% of the fair
market value of the Common Stock at the date of granting of such option. The
option price for options granted under the Plan which do not qualify as
Incentive Stock Options shall also be determined by the Committee but may be
less than 100% of the fair market value of the Common Stock. For purposes of the
preceding sentence and for all other valuation purposes under the Plan, the fair
market value of the Common Stock shall be as reasonably determined by the
Committee, but shall not be less than (i) the closing price of the stock as
reported for composite transactions, if the Common Stock is then traded on a
National Securities Exchange, (ii) the last sale price if the Common Stock is
then quoted on the NASDAQ National Market System or (iii) the average of the
closing representative bid and asked prices of the Common Stock as reported on
NASDAQ. If on the date of grant of any option granted under the Plan the Common
Stock of the Company is not publicly traded, the Committee shall make a good
faith attempt to satisfy the option price requirement of this Section 5 and in
connection therewith shall take such action as it deems
<PAGE>
necessary or advisable, which may include obtaining and relying on the opinion
of one or more completely independent and well-qualified experts as to the fair
market value of such Common Stock and such other facts and circumstances as it
deems relevant.
6. Term.
Each option and all rights and obligations thereunder shall, subject to
the provisions of Section 9, expire on the date determined by the Committee and
specified in the option agreement. The Committee shall be under no duty to
provide terms of like duration for options granted under the Plan, but the term
of an option may not extend more than ten (10) years from the date of granting
of the option.
7. Exercise of Option.
(a) The Committee shall have full and complete authority to determine,
subject to Section 9 herein, whether the option will be exercisable in full at
any time or from time to time during the term of the option, or to provide for
the exercise thereof in such installments and at such times during the term of
the option as the Committee may determine.
(b) No Incentive Stock Option granted before January 1, 1987, shall be
exercisable while there is outstanding (within the meaning of subsection (c)(7)
of Section 422A of the Code) any other Incentive Stock Option which was
previously granted to the optionee to purchase stock in the Company or in a
corporation which (at the time of the grant) was a parent or subsidiary
corporation of the Company, or a predecessor corporation of any of such
corporations.
(c) The exercise of any option granted hereunder shall only be
effective at such time as counsel to the Company shall have determined that the
issuance and delivery of Common Stock pursuant to such exercise will not violate
any state or federal securities or other laws. An optionee desiring to exercise
an option may be required by the Company, as a condition of the effectiveness of
any exercise of an option granted hereunder, to agree in writing that all Common
Stock to be acquired pursuant to such exercise shall be held for his or her own
account without a view to any further distribution thereof, that the
certificates for such shares shall bear an appropriate legend to that effect and
that such shares will not be transferred or disposed of except in compliance
with applicable federal and state laws. The Company may, in its sole discretion,
defer the effectiveness of any exercise of an option granted hereunder in order
to allow the issuance of Common Stock pursuant theret to be made pursuant to
registration or an exemption from registration or other methods for compliance
available order federal or state securities laws. The Company shall be under no
obligation to effect the registration pursuant to the Securities Act of 1933 of
any Common Stock to be issued hereunder or to effect similar compliance under
any state laws. The Company shall inform the optionee in writing of its decision
to defer the effectiveness of the exercise of an option granted hereunder.
During the period that the effectiveness of the exercise of an option has been
deferred, the optionee may, by written notice, withdraw such exercise and obtain
the refund of any amount paid with respect thereto.
(d) An optionee electing to exercise an option shall give written
notice to the Company of such election and of the number of shares subject to
such exercise. The full purchase price of such shares shall be tendered with
such notice of exercise. Payment shall be made to the Company either in cash
(including check, bank draft or money order), or, at the discretion of the
Committee, (i) by delivering the Company's Common Stock already owned by the
optionee having a fair market value equal to the full purchase price of the
shares, or (ii) a combination of cash and such shares; provided, however, that
an optionee shall not be entitled to tender shares of the Company's Common Stock
pursuant to successive, substantially simultaneous exercises of options granted
under this or any other stock option plan of the Company. The fair market value
of such shares shall be determined as provided in Section 5 herein. Until such
person has been issued a certificate or certificates for the shares subject to
such
<PAGE>
exercise, he shall possess no rights as a stockholder with respect to such
shares.
8. Additional Restrictions.
The Committee shall have full and complete authority to determine
whether all or any part of the Common Stock of the Company acquired upon
exercise of any of the options granted under the Plan shall be subject to
restrictions on the transferability thereof or any other restrictions affecting
in any manner the optionee's rights with respect thereto.
9. Effect of Termination of Employment or Death.
(a) In the event that the holder of an Incentive Stock Option shall
cease to be employed by the Company or its subsidiaries, if any, for any reason
other than his gross and willful misconduct or his death or disability, such
holder shall have the right to exercise the option at any time within one month
after such termination of employment to the extent of the full number of shares
he was entitled to purchase under the option on the date of termination, subject
to the condition that no option shall be exercisable after the expiration of the
term of the option.
(b) In the event that the holder of an Incentive Stock option shall
cease to be employed by the Company or its subsidiaries, if any, by reason of
his gross and willful misconduct during the course of his employment, including
but not limited to wrongful appropriation of funds of his employer or the
commission of a gross misdemeanor or felony, the option shall be terminated as
of the date of the misconduct.
(c) If the holder of an Incentive Stock Option shall die while in the
employ of the Company or a subsidiary, if any, or within one month after
termination of employment for any reason other than gross and willful
misconduct, or become disabled (within the meaning of Code Section 105(d)(4))
while in the employ of the Company or a subsidiary, if any, and such optionee
shall not have fully exercised the Incentive Stock Option, such option may be
exercised at any time within twelve months after his death or such disability by
the personal representatives, administrators or, if applicable, guardian, of the
optionee or by any person or persons to whom the option is transferred by will
or the applicable laws of descent and distribution, to the extent of the full
number of shares he was entitled to purchase under the option on the date of
death, disability or termination of employment, if earlier, and subject to the
condition that no option shall be exercisable after the expiration of the term
of the option.
(d) Nothing in the Plan or in any agreement thereunder shall confer on
any employee any right to continue in the employ of the Company or any of its
subsidiaries or affect, in any way, the right of the Company or any of its
subsidiaries to terminate his employment at anytime.
10. Ten Percent Shareholder Rule.
Notwithstanding any other provision in the Plan, if at the time an
option is otherwise to be granted pursuant to the Plan the optionee owns
directly or indirectly (within the meaning of Section 425(d) of the Code) Common
Stock of the Company possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or its parent or
subsidiary corporations, if any, (within the meaning of Section 422A(b)(6) of
the Code) then any Incentive Stock Option to be granted to such optionee
pursuant to the Plan shall satisfy the requirements of Section 422A(c)(8) of the
Code, and the option price shall be not less than 110% of the fair market value
of the Common Stock of the Company determined as described herein, and such
option by its terms shall not be exercisable after the expiration of five (5)
years from the date such option is granted.
<PAGE>
11. Non-Transferability.
No option granted under the Plan shall be transferable by an optionee,
otherwise than by will or the laws of descent or distribution as provided in
Section g(c) herein. During the lifetime of an optionee the option shall be
exercisable only by such optionee.
12. Dilution of Other Adjustments.
If there shall be any change in the Common Stock through merger,
consolidation, reorganization, recapitalization, stock dividend (of whatever
amount), stock split or other change in the corporate structure, appropriate
adjustments in the Plan and outstanding options shall be made by the Committee.
In the event of any such changes, adjustments shall include, where appropriate,
changes in the aggregate number of shares subject to the Plan and in the number
of shares and the price per share subject to outstanding options, in order to
prevent dilution or enlargement of option rights.
13. Amendment or Discontinuance of Plan.
The Board of Directors may amend or discontinue the Plan at any time.
Subject to the provisions of Section 12, no amendment of the Plan, however,
shall without shareholder approval: (i) increase the maximum number of shares
under the Plan as provided in Section 2 herein, (ii) decrease the minimum option
price provided in Section 5 herein, (iii) extend the maximum option term under
Section 6, or (iv) materially modify the eligibility requirements for
participation in the Plan. The Board of Directors shall not alter or impair any
option theretofore granted under the Plan without the consent of the holder of
the option.
14. Time of Granting.
Nothing contained in the Plan or in any resolution adopted or to be
adopted by the Board of Directors or by the stockholders of the Company, and no
action taken by the Committee or the Board of Directors (other than the
execution and delivery of an option), shall constitute the granting of an option
hereunder.
15. Effective Date and Termination of Plan.
Unless the Plan shall have been discontinued as provided in Section 13
hereof, the Plan shall terminate on March 2, 2004. No option may be granted
after such termination, but termination of the Plan shall not, without the
consent of the optionee, alter or impair any rights or obligations under any
option theretofore granted.
Exhibit 4.2
As amended October 12, 1993 and May 8, 1997
CYBEROPTICS CORPORATION
STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
1. Purpose of Plan
This plan shall be known as the "CyberOptics Corporation Stock Option
Plan For Non-Employee Directors" and is hereinafter referred to as the "Plan."
The purpose of the Plan is to promote the interests of CyberOptics Corporation,
a Minnesota corporation (the "Company"), by enhancing its ability to attract and
retain the services of experienced and knowledgeable non-employee directors and
by providing additional incentive for such directors to increase their interest
in the Company's long-term success and progress. Options granted under this Plan
shall be nonqualified stock options which do not qualify as incentive stock
options within the meaning of Section 422A of the Internal Revenue Code of 1986,
as amended (the "Code").
2. Stock Subject to Plan
Subject to the provisions of Section 10 hereof, the stock to be subject
to options under the Plan shall be authorized but unissued shares of the
Company's common stock, no par value per share (the "Common Stock"). Subject to
the adjustment as provided in Section 10 hereof, the maximum number of shares on
which options may be exercised under this Plan shall be 245,000 shares. If an
option under the Plan expires, or for any reason is terminated or unexercised
with respect to any shares, such shares shall again be available for options
thereafter granted during the term of the Plan.
3. Administration of Plan
The Plan shall be administered by a committee composed of members of
the Board of Directors of the Company other than those new Eligible Directors
who have received options under paragraph 4(c) during the preceding 13 months
(the "Committee"). The Committee shall have plenary authority in its discretion,
subject to the express provisions of this Plan, to interpret the Plan, to
prescribe, amend, and rescind rules and regulations relating to the Plan, and to
make all other determinations necessary or advisable for the administration of
the Plan. The Committee's determinations on the foregoing matters shall be final
and conclusive.
4. Eligibility
(a) Upon adoption of the amendments to the Plan at the 1997 annual
meeting of the Shareholders, each director of the Company who is not otherwise
an employee of the Company or any subsidiary of the Company (an "Eligible
Director") shall receive an option under the Plan to purchase 12,000 shares of
Common Stock under the Plan.
(b) Each new Eligible Director shall receive, upon his or her initial
election as a director of the Company, an option to purchase 12,000 shares of
Common Stock under the Plan.
5. Price
The option price for all options granted under the Plan shall be the
fair market value of the shares covered by the option on the date the option is
granted. For purposes of this Plan, the fair market value of the Common Stock on
a given date shall be (i) the average of the closing representative bid and
asked prices of the Common Stock as reported on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") on such date, if the
Common Stock is then quoted on
<PAGE>
NASDAQ; (ii) the last sale price of the Common Stock as reported on the NASDAQ
National Market System on such date, if the Common Stock is then quoted on the
NASDAQ National Market System; or (iii) the closing price of the Common Stock on
such date on a national securities exchange, if the Common Stock is then being
traded on a national securities exchange. If on the date as of which the fair
market value is being determined the Common Stock is not publicly traded, the
Committee shall make a good faith attempt to determine such fair market value
and, in connection therewith, shall take such actions and consider such factors
as it deems necessary or advisable.
6. Term
Each option and all rights and obligations thereunder shall, subject to
the provisions of Section 8 herein, expire ten years from the date of granting
of the option.
7. Exercise of Option
(a) Options granted to Eligible Directors as of the date of adoption by
directors of this Plan shall not be exercisable until the annual meeting of the
Shareholders held in 1994 and may be exercised with respect to 3,000 shares
thereafter and with respect to additional 3,000 shares on the date of the annual
meeting in each year thereafter at which such director is reelected until the
annual meeting of Shareholders held in 1997 when such options shall be
exercisable in full. Other options granted under the Plan may not be exercised
by the optionee until the date of the first annual Shareholders' meeting after
the date of grant of the option, and may be exercised during the option period
only as follows:
Number of Annual Meetings Cumulative percentage
resulting in reelection since of shares as to when
date of grant option is exercised
------------------------- ---------------------
less than 1 none
1 25%
2 50%
3 75%
4 100%
Such installments shall cumulate and, if in any year the full amount
purchasable in such year is not purchased, the shares not purchased shall be
purchasable in any subsequent year during the term of the option, subject to the
provisions of Section 8 hereof.
(b) The exercise of any option granted hereunder shall only be
effective at such time as counsel to the Company shall have determined that the
issuance and delivery of Common Stock pursuant to such exercise will not violate
any state or federal securities or other laws. An optionee desiring to exercise
an option may be required by the Company, as a condition of the effectiveness of
any exercise of an option granted hereunder, to agree in writing that all Common
Stock to be acquired pursuant to such exercise shall be held for his or her own
account without a view to any further distribution thereof, that the
certificates for such shares shall bear an appropriate legend to that effect and
that such shares will not be transferred or disposed of except in compliance
with applicable federal and state securities laws.
(c) An optionee electing to exercise an option shall give written
notice to the Company of such election and of the number of shares subject to
such exercise. The full purchase price of such shares shall be tendered with
such notice of exercise. Payment shall be made to the Company either (i) in cash
(including check, bank draft or money order), or (ii) by delivering the
Company's Common Stock already owned by the optionee having a fair market value
on the date of exercise equal to the full
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purchase price of the shares, or (iii) by any combination of cash and the method
specified in (ii) of this sentence; provided, however, that an optionee shall
not be entitled to tender shares of Common Stock pursuant to successive,
substantially simultaneous exercises of options granted hereunder or in any
manner tantamount to the technique commonly referred to as "pyramiding." For
purposes of the preceding sentence, the fair market value of Common Stock
tendered shall be determined as provided in Section 5 hereof as of the date of
exercise. Until such person has been issued a certificate or certificates for
the shares subject to such exercise, he or she shall possess no rights as a
shareholder with respect to such shares.
8. Effect of Termination of Directorship or Death or Disability
(a) In the event that an optionee shall cease to be a director of the
Company for any reason other than his or her gross and willful misconduct, such
optionee (or such optionee's guardian, administrators or personal representative
in the case of disability or death) shall have the right to exercise the option
at any time after such termination of directorship to the extent of the full
number of shares he or she was entitled to purchase under the option on the date
of termination, subject to the condition that no option shall be exercisable
after the expiration of the term of the option.
(b) In the event that an optionee shall cease to be a director of the
Company by reason of his or her gross and willful misconduct during the course
of his or her service as a director of the Company, including but not limited to
wrongful appropriation of funds of the Company, or the commission of a gross
misdemeanor or felony, the option shall be terminated as of the date of the
misconduct.
(c) Nothing in this Plan or in any agreement hereunder shall confer on
any optionee any right to continue as a director of the Company or affect in any
way any legal rights with respect to termination of such directorship or removal
of such optionee as a director.
9. Non-Transferability
No option granted under the Plan shall be transferable by optionee,
otherwise than by will or the laws of descent or distribution. Except as
provided in Section 8 herein with respect to disability of the optionee, during
the lifetime of an optionee, the option shall be exercisable only by such
optionee.
10. Dilution or Other Adjustments
If there shall be any change in the Common Stock through merger,
consolidation, reorganization, recapitalization, stock dividend (of whatever
amount), stock split or other change in the corporate structure, appropriate
adjustments in the Plan and outstanding options shall be made. In the event of
any such changes, adjustments shall include, where appropriate, changes in the
aggregate number of shares subject to the Plan, the number of shares subject to
outstanding options and the exercise prices thereof in order to prevent dilution
or enlargement of option rights.
11. Amendment or Discontinuance of Plan
The Committee may amend or discontinue the Plan at any time; provided
that, notwithstanding any other provision in this Plan to the contrary, in no
event shall this plan be amended more than once during any six month period,
except to comport with changes in the Internal Revenue Code or the rules
thereunder. Subject to the provisions of Section 10, no amendment of the Plan
shall, without shareholder approval: (a) increase the maximum number of shares
with respect to which options may be granted under the Plan as provided in
Section 2 hereof, (b) modify the eligibility requirements for participation in
the Plan as provided in Section 4 hereof, or (c) change the date of
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grant or exercise price of, or the number of shares subject to, options granted
or to be granted to Eligible Directors, as provided in Section 4 and 5 hereof.
The Committee shall not alter or impair any option theretofore granted under the
Plan.
12. Time of Granting
Nothing contained in the Plan or in any resolution adopted or to be
adopted by the Committee, the Board of Directors or the shareholders of the
Company, and no action taken by the Committee (other than the execution and
delivery of an option), shall constitute the granting of an option hereunder.
13. Effective Date and Termination of Plan
(a) The Plan was amended by the shareholders of the Company on May 8,
1997 and shall be effective, as so amended, thereafter.
(b) Unless the Plan shall have been discontinued as provided in Section
11 hereof, the Plan shall terminate on October 12, 2003. No option may be
granted after such termination, but termination of the Plan shall not, without
the consent of the optionee, alter or impair any rights or obligations under any
option theretofore granted.
Exhibit 5
CyberOptics Corporation
5900 Golden Hills Drive
Golden Valley, Minnesota 55416
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8 filed by
CyberOptics Corporation (the "Company") with the Securities and Exchange
Commission on or about the date hereof, relating to the registration of 480,000
common shares, no par value, which may be issued pursuant to exercise of options
granted or which may be granted under the Company's Restated Stock Option Plan
and Stock Option Plan for Non-Employee Directors (the "Plans"), please be
advised that as counsel to the Company, upon examination of such corporate
documents and records as we have deemed necessary or advisable for the purposes
of this opinion, it is our opinion that:
1. The Company is a validly existing corporation in good standing under
the laws of the State of Minnesota.
2. The 480,000 shares which may be issued by the Company under the
Plans will be, when issued and paid for as described in the Registration
Statement, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Dated: October 29, 1997
Very truly yours,
DORSEY & WHITNEY
Exhibit 24.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated February 6, 1997, except for the
first paragraph of Note 8, as to which the date is March 3, 1997, on our audits
of the consolidated financial statements and financial statement schedule of
CyberOptics Corporation as of December 31, 1996 and 1995, and for the years
ended December 31, 1996, 1995, and 1994, which reports are included and
incorporated by reference in CyberOptics Corporation's Annual Report on Form
10-K for the year ended December 31, 1996.
COOPERS & LYBRAND L.L.P.
Minneapolis, Minnesota
October 29, 1997
