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 1998 STOCK INCENTIVE PLAN
CYBEROPTICS CORPORATION STOCK OPTION AGREEMENT WITH STEVEN M. QUIST
(Full title of the plan)
John D. Beagan Copy to:
Vice President--Operations 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 Offering Price(2) Fee
- --------------------------------------------------------------------------------
Common Stock
no par value 350,000 (2) $5,442,187.50 $1,605.45
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(1) The number of shares being registered represents 250,000 shares of Common
Stock which may be issued pursuant to the CyberOptics Corporation 1998 Stock
Incentive Plan and 100,000 shares which may be issued pursuant to the
CyberOptics Corporation Stock Option Agreement with Steven M. Quist.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933, as
amended. The proposed maximum offering price is based upon (i) an exercise price
of $19.50 per share for the 100,000 shares of such Common Stock issuable
pursuant to the CyberOptics Corporation Stock Option Agreement with Steven M.
Quist and (ii) the average of the high and low selling prices of such Common
Stock as quoted on the Nasdaq National Market on August 13, 1998 for the 250,000
shares of such Common Stock issuable pursuant to the CyberOptics Corporation
1998 Stock Incentive Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by CyberOptics
Corporation (the "Company") with the Securities and Exchange Commission (the
"Commission"), are incorporated by reference in this Registration Statement, as
of their respective dates:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998;
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998; and
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, and any
amendment or report filed to update such description filed
subsequent to the date of this Registration Statement and
prior to the termination of the offering of the Common Stock
offered hereby.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to
the date hereof and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the respective dates of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Certain Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 302A.521 of the Minnesota Business Corporation Act (the "MBCA")
provides that a corporation shall indemnify any person made or threatened to be
made a party to a proceeding by reason of the former or present official
capacity of such person against judgments, penalties, fines (including, without
limitation, excise taxes assessed against such person with respect to any
employee benefit plan), settlements and reasonable expenses, including
attorneys' fees and disbursements, incurred by such person in connection with
the proceeding, if, with respect to the acts or omissions of such person
complained of in the proceeding, such person (1) has not been indemnified
therefor by another organization or employee benefit plan for the same
judgments, penalties, fines or expenses; (2) acted in good faith; (3) received
no improper personal benefit and Section 302A.255 (with respect to director
conflicts of interest), if applicable, has been satisfied; (4) in the case of a
criminal proceeding, had no reasonable cause to believe the conduct was
unlawful; and (5)in the case of acts or omissions in such person's official
capacity for the corporation, reasonably believed that the conduct was in the
best interests of the corporation, or in the case of acts or omissions in such
person's official capacity for other affiliated organizations, reasonably
believed that the conduct was not opposed to the best interests of the
corporation. Section 302A.521 also requires payment by a corporation, upon
written request, of
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reasonable expenses in advance of final disposition of the proceeding in certain
instances. A decision as to required indemnification is made by a disinterested
majority of the board of directors present at a meeting at which a disinterested
quorum is present, or by a designated committee of the board of directors, by
special legal counsel, by the shareholders or by a court.
The Company's Articles of Incorporation limit the liability of its
directors to the extent permitted by the MBCA, and the Company's Bylaws require
that the Company indemnify all directors and officers for such expenses and
liabilities to the extent permitted by the MBCA as now enacted or hereafter
amended.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit Number Description
-------------- -----------
4.1 CyberOptics Corporation 1998 Stock Incentive Plan.
4.2 CyberOptics Corporation Stock Option Agreement with
Steven M. Quist.
5 Opinion of Dorsey & Whitney LLP.
24.1 Consent of PricewaterhouseCoopers LLP.
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;
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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.
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 Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, State of Minnesota, on this 27th day of
July, 1998.
CYBEROPTICS CORPORATION
By: /s/ Steven M. Quist
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Steven M. Quist, President
POWER OF ATTORNEY
The officers and directors of CyberOptics Corporation, whose signatures
appear below, hereby constitute and appoint Steven M. Quist 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:
Name Title
---- -----
/s/ Steven K. Case Chairman and Director July 27, 1998
- --------------------------- (PRINCIPAL EXECUTIVE OFFICER)
Steven K. Case
/s/ John D. Beagan Vice President-Operations and July 27, 1998
- --------------------------- Chief Financial Officer
John D. Beagan (PRINCIPAL FINANCIAL OFFICER)
/s/ Scott Larson Controller July 27, 1998
- --------------------------- (PRINCIPAL ACCOUNTING OFFICER)
Scott Larson
/s/ Steven M. Quist President and Director July 27, 1998
- ---------------------------
Steven M. Quist
/s/ Alex B. Cimochowski Director July 27, 1998
- ---------------------------
Alex B. Cimochowski
/s/ Erwin A. Kelen Director July 27, 1998
- ---------------------------
Erwin A. Kelen
/s/ George E. Kline Director July 27, 1998
- ---------------------------
George E. Kline
/s/ Kathleen P. Iverson Director July 27, 1998
- ---------------------------
Kathleen P. Iverson
/s/ P. June Min Director July 27, 1998
- ---------------------------
P. June Min
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EXHIBIT INDEX
Exhibit Number Description Page
- -------------- ----------- ----
4.1 CyberOptics Corporation 1998 Stock Incentive Plan.
4.2 CyberOptics Corporation Stock Option Agreement with
Steven M. Quist.
5 Opinion of Dorsey & Whitney LLP.
24.1 Consent of PricewaterhouseCoopers LLP.
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
CYBEROPTICS CORPORATION
1998 STOCK INCENTIVE PLAN
Section 1. Purpose.
The purpose of the Plan is to aid in attracting and retaining
management personnel and other persons providing valuable services to the
CYBEROPTICS Corporation (the "Company") capable of assuring the future success
of the Company, to offer such personnel incentives to put forth maximum efforts
for the success of the Company's business and to afford such personnel an
opportunity to acquire a proprietary interest in the Company.
Section 2. Definitions.
As used in the Plan, the following terms shall have the
meanings set forth below:
(a) "Affiliate" shall mean (i) any entity that, directly or
indirectly through one or more intermediaries, is controlled by the Company and
(ii) any entity in which the Company has a significant equity interest, in each
case as determined by the Committee.
(b) "Award" shall mean any Option, Stock Appreciation Right,
Restricted Stock, Restricted Stock Unit, Performance Award, Dividend Equivalent
or Other Stock-Based Award granted under the Plan.
(c) "Award Agreement" shall mean any written agreement,
contract or other instrument or document evidencing any Award granted under the
Plan.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and any regulations promulgated thereunder.
(e) "Committee" shall mean a committee of the Board of
Directors of the Company designated by such Board to administer the Plan, which
shall consist of members appointed from time to time by the Board of Directors.
Each member of the Committee shall be an "outside director" as defined in
Section 162(m) of the Code.
(f) "Company" shall mean CYBEROPTICS Corporation, a Minnesota
corporation, and any successor corporation.
(g) "Dividend Equivalent" shall mean any right granted under
Section 6(e) of the Plan.
(h) "Eligible Person" shall mean any employee, officer,
consultant or independent contractor providing services to the Company or any
Affiliate who the Committee determines to be an Eligible Person.
(i) "Fair Market Value" shall mean, with respect to any
property (including, without limitation, any Shares or other securities), the
fair market value of such property determined by such methods or procedures as
shall be established from time to time by the Committee.
(j) "Incentive Stock Option" shall mean an option granted
under Section 6(a) of the Plan that is intended to meet the requirements of
Section 422 of the Code or any successor provision.
(k) "Non-Qualified Stock Option" shall mean an option granted
under Section 6(a) of the Plan that is not intended to be an Incentive Stock
Option.
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(l) "Option" shall mean an Incentive Stock Option or a
Non-Qualified Stock Option, and shall include Restoration Options.
(m) "Other Stock-Based Award" shall mean any right granted
under Section 6(f) of the Plan.
(n) "Participant" shall mean an Eligible Person designated to
be granted an Award under the Plan.
(o) "Performance Award" shall mean any right granted under
Section 6(d) of the Plan.
(p) "Person" shall mean any individual, corporation,
partnership, association or trust.
(q) "Plan" shall mean this 1998 Stock Incentive Plan, as
amended from time to time.
(r) " Reload Option" shall mean any Option granted under
Section 6(a)(iv) of the Plan.
(s) "Restricted Stock" shall mean any Share granted under
Section 6(c) of the Plan.
(t) "Restricted Stock Unit" shall mean any unit granted under
Section 6(c) of the Plan evidencing the right to receive a Share (or a cash
payment equal to the Fair Market Value of a Share) at some future date.
(u) "Rule 16b-3" shall mean Rule 16b-3 promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended, or any successor rule or regulation.
(v) "Shares" shall mean shares of Common Stock, no par value,
of the Company or such other securities or property as may become subject to
Awards pursuant to an adjustment made under Section 4(c) of the Plan.
(w) "Stock Appreciation Right" shall mean any right granted
under Section 6(b) of the Plan.
Section 3. Administration.
(a) Power and Authority of the Committee. The Plan shall be
administered by the Committee. Subject to the express provisions of the Plan and
to applicable law, the Committee shall have full power and authority to: (i)
designate Participants; (ii)determine the type or types of Awards to be granted
to each Participant under the Plan; (iii) determine the number of Shares to be
covered by (or with respect to which payments, rights or other matters are to be
calculated in connection with) each Award; (iv) determine the terms and
conditions of any Award or Award Agreement; (v)amend the terms and conditions of
any Award or Award Agreement and accelerate the exercisability of Options or the
lapse of restrictions relating to Restricted Stock, Restricted Stock Units or
other Awards; (vi)determine whether, to what extent and under what circumstances
Awards may be exercised in cash, Shares, other securities, other Awards or other
property, or canceled, forfeited or suspended; (vii) determine whether, to what
extent and under what circumstances cash, Shares, other securities, other
Awards, other property and other amounts payable with respect to an Award under
the Plan shall be deferred either automatically or at the election of the holder
thereof or the Committee; (viii)interpret and administer the Plan and any
instrument or agreement relating to, or Award made under, the Plan; (ix)
establish, amend, suspend or waive such rules and regulations and appoint such
agents as it shall deem appropriate for the proper administration of the Plan;
and (x) make any other determination and take any other action that the
Committee deems necessary or desirable for the administration of the Plan.
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Unless otherwise expressly provided in the Plan, all designations,
determinations, interpretations and other decisions under or with respect to the
Plan or any Award shall be within the sole discretion of the Committee, may be
made at any time and shall be final, conclusive and binding upon any
Participant, any holder or beneficiary of any Award and any employee of the
Company or any Affiliate.
(b) Delegation. The Committee may delegate its powers and
duties under the Plan to one or more officers of the Company or any Affiliate or
a committee of such officers, subject to such terms, conditions and limitations
as the Committee may establish in its sole discretion.
Section 4. Shares Available for Awards.
(a) Shares Available. Subject to adjustment as provided in
Section 4(c), the number of Shares available for granting Awards under the Plan
shall be 250,000. If any Shares covered by an Award or to which an Award relates
are not purchased or are forfeited, or if an Award otherwise terminates without
delivery of any Shares, then the number of Shares counted against the aggregate
number of Shares available under the Plan with respect to such Award, to the
extent of any such forfeiture or termination, shall again be available for
granting Awards under the Plan.
(b) Accounting for Awards. For purposes of this Section 4, if
an Award entitles the holder thereof to receive or purchase Shares, the number
of Shares covered by such Award or to which such Award relates shall be counted
on the date of grant of such Award against the aggregate number of Shares
available for granting Awards under the Plan.
(c) Adjustments. In the event that the Committee shall
determine that any dividend or other distribution (whether in the form of cash,
Shares, other securities or other property), recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase or exchange of Shares or other securities of the
Company, issuance of warrants or other rights to purchase Shares or other
securities of the Company or other similar corporate transaction or event
affects the Shares such that an adjustment is determined by the Committee to be
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Committee shall, in such manner as it may deem equitable, adjust any or all of
(i) the number and type of Shares (or other securities or other property) which
thereafter may be made the subject of Awards, (ii) the number and type of Shares
(or other securities or other property) subject to outstanding Awards and (iii)
the purchase or exercise price with respect to any Award; provided, however,
that the number of Shares covered by any Award or to which such Award relates
shall always be a whole number.
(d) Limitation on Annual Awards to Individuals.
Notwithstanding any other provision in this Plan, no Participant may be granted
an Award or Awards under the Plan, the value of which is based solely on an
increase in the value of the Shares after the date of grant of such Award or
Awards, 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.
Section 5. Eligibility.
Any Eligible Person, including any Eligible Person who is an
officer or director of the Company or any Affiliate, shall be eligible to be
designated a Participant. In determining which Eligible Persons shall receive an
Award and the terms of any Award, the Committee may take into account the nature
of the services rendered by the respective Eligible Persons, their present and
potential contributions to the success of the Company or such other factors as
the Committee, in its discretion, shall deem relevant. Notwithstanding the
foregoing, an Incentive Stock Option may only be
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granted to full or part-time employees (which term as used herein includes,
without limitation, officers and directors who are also employees) and an
Incentive Stock Option shall not be granted to an employee of an Affiliate
unless such Affiliate is also a "subsidiary corporation" of the Company within
the meaning of Section 424(f) of the Code or any successor provision.
Section 6. Awards.
(a) Options. The Committee is hereby authorized to grant
Options to Participants with the following terms and conditions and with such
additional terms and conditions not inconsistent with the provisions of the Plan
as the Committee shall determine:
(i) Exercise Price. The purchase price per Share purchasable
under an Option shall be determined by the Committee; provided,
however, that such purchase price shall not be less than 100% of the
Fair Market Value of a Share on the date of grant of such Option.
(ii) Option Term. The term of each Option shall be fixed by
the Committee.
(iii) Time and Method of Exercise. The Committee shall
determine the time or times at which an Option may be exercised in
whole or in part and the method or methods by which, and the form or
forms (including, without limitation, cash, Shares, promissory notes,
other securities, other Awards or other property, or any combination
thereof, having a Fair Market Value on the exercise date equal to the
relevant exercise price) in which, payment of the exercise price with
respect thereto may be made or deemed to have been made.
(iv) Reload Options. The Committee may grant Reload Options,
separately or together with another Option, pursuant to which, subject
to the terms and conditions established by the Committee and any
applicable requirements of Rule 16b-3 or any other applicable law, the
Participant would be granted a new Option when the payment of the
exercise price of the option to which such Reload Option relates is
made by the delivery of Shares owned by the Participant pursuant to the
relevant provisions of the plan or agreement relating to such option,
which new Option would be an Option to purchase the number of Shares
not exceeding the sum of (A) the number of Shares so provided as
consideration upon the exercise of the previously granted option to
which such Reload Option relates and (B) the number of Shares, if any,
tendered or withheld as payment of the amount to be withheld under
applicable tax laws in connection with the exercise of the option to
which such Reload Option relates pursuant to the relevant provisions of
the plan or agreement relating to such option. Reload Options may be
granted with respect to options previously granted under the Plan or
any other stock option plan of the Company, and may be granted in
connection with any option granted under the Plan or any other stock
option plan of the Company at the time of such grant.
(b) Stock Appreciation Rights. The Committee is hereby
authorized to grant Stock Appreciation Rights to Participants subject to the
terms of the Plan and any applicable Award Agreement. A Stock Appreciation Right
granted under the Plan shall confer on the holder thereof a right to receive
upon exercise thereof the excess of (i) the Fair Market Value of one Share on
the date of exercise (or, if the Committee shall so determine, at any time
during a specified period before or after the date of exercise) over (ii) the
grant price of the Stock Appreciation Right as specified by the Committee, which
price shall not be less than 100% of the Fair Market Value of one Share on the
date of grant of the Stock Appreciation Right. Subject to the terms of the Plan
and any applicable Award Agreement, the grant price, term, methods of exercise,
dates of exercise, methods of settlement and any other terms and conditions of
any Stock Appreciation Right shall be as determined by the Committee. The
Committee may impose such conditions or restrictions on the exercise of any
Stock Appreciation Right as it may deem appropriate.
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(c) Restricted Stock and Restricted Stock Units. The Committee
is hereby authorized to grant Awards of Restricted Stock and Restricted Stock
Units to Participants with the following terms and conditions and with such
additional terms and conditions not inconsistent with the provisions of the Plan
as the Committee shall determine:
(i) Restrictions. Shares of Restricted Stock and Restricted
Stock Units shall be subject to such restrictions as the Committee may
impose (including, without limitation, any limitation on the right to
vote a Share of Restricted Stock or the right to receive any dividend
or other right or property with respect thereto), which restrictions
may lapse separately or in combination at such time or times, in such
installments or otherwise as the Committee may deem appropriate.
(ii) Stock Certificates. Any Restricted Stock granted under
the Plan shall be evidenced by issuance of a stock certificate or
certificates, which certificate or certificates shall be held by the
Company. Such certificate or certificates shall be registered in the
name of the Participant and shall bear an appropriate legend referring
to the terms, conditions and restrictions applicable to such Restricted
Stock. In the case of Restricted Stock Units, no Shares shall be issued
at the time such Awards are granted.
(iii) Forfeiture; Delivery of Shares. Except as otherwise
determined by the Committee, upon termination of employment (as
determined under criteria established by the Committee) during the
applicable restriction period, all Shares of Restricted Stock and all
Restricted Stock Units at such time subject to restriction shall be
forfeited and reacquired by the Company; provided, however, that the
Committee may, when it finds that a waiver would be in the best
interest of the Company, waive in whole or in part any or all remaining
restrictions with respect to Shares of Restricted Stock or Restricted
Stock Units. Any Share representing Restricted Stock that is no longer
subject to restrictions shall be delivered to the holder thereof
promptly after the applicable restrictions lapse or are waived. Upon
the lapse or waiver of restrictions and the restricted period relating
to Restricted Stock Units evidencing the right to receive Shares, such
Shares shall be issued and delivered to the holders of the Restricted
Stock Units.
(d) Performance Awards. The Committee is hereby authorized to
grant Performance Awards to Participants subject to the terms of the Plan and
any applicable Award Agreement. A Performance Award granted under the Plan (i)
may be denominated or payable in cash, Shares (including, without limitation,
Restricted Stock), other securities, other Awards or other property and (ii)
shall confer on the holder thereof the right to receive payments, in whole or in
part, upon the achievement of such performance goals during such performance
periods as the Committee shall establish. Subject to the terms of the Plan and
any applicable Award Agreement, the performance goals to be achieved during any
performance period, the length of any performance period, the amount of any
Performance Award granted, the amount of any payment or transfer to be made
pursuant to any Performance Award and any other terms and conditions of any
Performance Award shall be determined by the Committee.
(e) Dividend Equivalents. The Committee is hereby authorized
to grant to Participants Dividend Equivalents under which such Participants
shall be entitled to receive payments (in cash, Shares, other securities, other
Awards or other property as determined in the discretion of the Committee)
equivalent to the amount of cash dividends paid by the Company to holders of
Shares with respect to a number of Shares determined by the Committee. Subject
to the terms of the Plan and any applicable Award Agreement, such Dividend
Equivalents may have such terms and conditions as the Committee shall determine.
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(f) Other Stock-Based Awards. The Committee is hereby
authorized to grant to Participants such other Awards that are denominated or
payable in, valued in whole or in part by reference to, or otherwise based on or
related to, Shares (including, without limitation, securities convertible into
Shares), as are deemed by the Committee to be consistent with the purpose of the
Plan; provided, however, that such grants must comply with Rule 16b-3 and
applicable law. Subject to the terms of the Plan and any applicable Award
Agreement, the Committee shall determine the terms and conditions of such
Awards. Shares or other securities delivered pursuant to a purchase right
granted under this Section 6(f) shall be purchased for such consideration, which
may be paid by such method or methods and in such form or forms (including
without limitation, cash, Shares, promissory notes, other securities, other
Awards or other property or any combination thereof), as the Committee shall
determine, the value of which consideration, as established by the Committee,
shall not be less than 100% of the Fair Market Value of such Shares or other
securities as of the date such purchase right is granted.
(g) General.
(i) No Cash Consideration for Awards. Awards shall be granted
for no cash consideration or for such minimal cash consideration as may
be required by applicable law.
(ii) Awards May Be Granted Separately or Together. Awards may,
in the discretion of the Committee, be granted either alone or in
addition to, in tandem with or in substitution for any other Award or
any award granted under any plan of the Company or any Affiliate other
than the Plan. Awards granted in addition to or in tandem with other
Awards or in addition to or in tandem with awards granted under any
such other plan of the Company or any Affiliate may be granted either
at the same time as or at a different time from the grant of such other
Awards or awards.
(iii) Forms of Payment under Awards. Subject to the terms of
the Plan and of any applicable Award Agreement, payments or transfers
to be made by the Company or an Affiliate upon the grant, exercise or
payment of an Award may be made in such form or forms as the Committee
shall determine (including, without limitation, cash, Shares,
promissory notes, other securities, other Awards or other property or
any combination thereof), and may be made in a single payment or
transfer, in installments or on a deferred basis, in each case in
accordance with rules and procedures established by the Committee. Such
rules and procedures may include, without limitation, provisions for
the payment or crediting of reasonable interest on installment or
deferred payments or the grant or crediting of Dividend Equivalents
with respect to installment or deferred payments.
(iv) Limits on Transfer of Awards. No Award and no right under
any such Award shall be transferable by a Participant otherwise than by
will or by the laws of descent and distribution; provided, however,
that, if so determined by the Committee, a Participant may, in the
manner established by the Committee, designate a beneficiary or
beneficiaries to exercise the rights of the Participant and receive any
property distributable with respect to any Award upon the death of the
Participant. Each Award or right under any Award shall be exercisable
during the Participant's lifetime only by the Participant or, if
permissible under applicable law, by the Participant's guardian or
legal representative. No Award or right under any such Award may be
pledged, alienated, attached or otherwise encumbered, and any purported
pledge, alienation, attachment or encumbrance thereof shall be void and
unenforceable against the Company or any Affiliate.
(v) Term of Awards. The term of each Award shall be for such
period as may be determined by the Committee.
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(vi) Restrictions; Securities Exchange Listing. All
certificates for Shares or other securities delivered under the Plan
pursuant to any Award or the exercise thereof shall be subject to such
stop transfer orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations and other
requirements of the Securities and Exchange Commission and any
applicable federal or state securities laws, and the Committee may
cause a legend or legends to be placed on any such certificates to make
appropriate reference to such restrictions. If the Shares or other
securities are traded on a securities exchange, the Company shall not
be required to deliver any Shares or other securities covered by an
Award unless and until such Shares or other securities have been
admitted for trading on such securities exchange.
Section 7. Amendment and Termination; Adjustments.
Except to the extent prohibited by applicable law and unless
otherwise expressly provided in an Award Agreement or in the Plan:
(a) Amendments to the Plan. The Board of Directors of the
Company may amend, alter, suspend, discontinue or terminate the Plan; provided,
however, that, notwithstanding any other provision of the Plan or any Award
Agreement, without the approval of the stockholders of the Company, no such
amendment, alteration, suspension, discontinuation or termination shall be made
that, absent such approval:
(i) would cause Rule 16b-3 to become unavailable with respect
to the Plan;
(ii) would violate the rules or regulations of the New York
Stock Exchange, any other securities exchange or the National
Association of Securities Dealers, Inc. that are applicable to the
Company; or
(iii) would cause the Company to be unable, under the Code, to
grant Incentive Stock Options under the Plan.
(b) Amendments to Awards. The Committee may waive any
conditions of or rights of the Company under any outstanding Award,
prospectively or retroactively. The Committee may not amend, alter, suspend,
discontinue or terminate any outstanding Award, prospectively or retroactively,
without the consent of the Participant or holder or beneficiary thereof, except
as otherwise herein provided.
(c) Correction of Defects, Omissions and Inconsistencies. The
Committee may correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any Award in the manner and to the extent it shall
deem desirable to carry the Plan into effect.
Section 8. Income Tax Withholding; Tax Bonuses.
(a) Withholding. In order to comply with all applicable
federal or state income tax laws or regulations, the Company may take such
action as it deems appropriate to ensure that all applicable federal or state
payroll, withholding, income or other taxes, which are the sole and absolute
responsibility of a Participant, are withheld or collected from such
Participant. In order to assist a Participant in paying all or a portion of the
federal and state taxes to be withheld or collected upon exercise or receipt of
(or the lapse of restrictions relating to) an Award, the Committee, in its
discretion and subject to such additional terms and conditions as it may adopt,
may permit the Participant to satisfy such tax obligation by (i) electing to
have the Company withhold a portion of the Shares otherwise to be delivered upon
exercise or receipt of (or the lapse of restrictions relating to) such Award
with a Fair Market Value equal to the amount of such taxes or (ii) delivering to
the Company Shares
7
<PAGE>
other than Shares issuable upon exercise or receipt of (or the lapse of
restrictions relating to) such Award with a Fair Market Value equal to the
amount of such taxes. The election, if any, must be made on or before the date
that the amount of tax to be withheld is determined.
(b) Tax Bonuses. The Committee, in its discretion, shall have
the authority, at the time of grant of any Award under this Plan or at any time
thereafter, to approve cash bonuses to designated Participants to be paid upon
their exercise or receipt of (or the lapse of restrictions relating to) Awards
in order to provide funds to pay all or a portion of federal and state taxes due
as a result of such exercise or receipt (or the lapse of such restrictions). The
Committee shall have full authority in its discretion to determine the amount of
any such tax bonus.
Section 9. General Provisions.
(a) No Rights to Awards. Participant or other Person shall
have any claim to be granted any Award under the Plan, and there is no
obligation for uniformity of treatment of Eligible Persons, Participants or
holders or beneficiaries of Awards under the Plan. The terms and conditions of
Awards need not be the same with respect to any Participant or with respect to
different Participants.
(b) Award Agreements. No Participant will have rights under an
Award granted to such Participant unless and until an Award Agreement shall have
been duly executed on behalf of the Company.
(c) No Limit on Other Compensation Arrangements. Nothing
contained in the Plan shall prevent the Company or any Affiliate from adopting
or continuing in effect other or additional compensation arrangements, and such
arrangements may be either generally applicable or applicable only in specific
cases.
(d) No Right to Employment. The grant of an Award shall not be
construed as giving a Participant the right to be retained in the employ of the
Company or any Affiliate, nor will it affect in any way the right of the Company
or an Affiliate to terminate such employment at any time, with or without cause.
In addition, the Company or an Affiliate may at any time dismiss a Participant
from employment free from any liability or any claim under the Plan, unless
otherwise expressly provided in the Plan or in any Award Agreement.
(e) Governing Law. The validity, construction and effect of
the Plan or any Award, and any rules and regulations relating to the Plan or any
Award, shall be determined in accordance with the laws of the State of
Minnesota.
(f) Severability. If any provision of the Plan or any Award is
or becomes or is deemed to be invalid, illegal or unenforceable in any
jurisdiction or would disqualify the Plan or any Award under any law deemed
applicable by the Committee, such provision shall be construed or deemed amended
to conform to applicable laws, or if it cannot be so construed or deemed amended
without, in the determination of the Committee, materially altering the purpose
or intent of the Plan or the Award, such provision shall be stricken as to such
jurisdiction or Award, and the remainder of the Plan or any such Award shall
remain in full force and effect.
(g) No Trust or Fund Created. Neither the Plan nor any Award
shall create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Affiliate and a Participant or
any other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Affiliate pursuant to an Award, such right
shall be no greater than the right of any unsecured general creditor of the
Company or any Affiliate.
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<PAGE>
(h) No Fractional Shares. No fractional Shares shall be issued
or delivered pursuant to the Plan or any Award, and the Committee shall
determine whether cash shall be paid in lieu of any fractional Shares or whether
such fractional Shares or any rights thereto shall be canceled, terminated or
otherwise eliminated.
(i) Headings. Headings are given to the Sections and
subsections of the Plan solely as a convenience to facilitate reference. Such
headings shall not be deemed in any way material or relevant to the construction
or interpretation of the Plan or any provision thereof.
Section 10. Effective Date of the Plan.
The Plan shall be effective as of the date on which it is
approved by the shareholders of the Company.
Section 11. Term of the Plan.
Unless the Plan shall have been discontinued or terminated as
provided in Section 7(a), the Plan shall terminate on the date which is ten
years after the date on which the Plan receives shareholder approval. No Award
shall be granted after the termination of the Plan. However, unless otherwise
expressly provided in the Plan or in an applicable Award Agreement, any Award
theretofore granted may extend beyond the termination of the Plan, and the
authority of the Committee provided for hereunder with respect to the Plan and
any Awards, and the authority of the Board of Directors of the Company to amend
the Plan, shall extend beyond the termination of the Plan.
9
EXHIBIT 4.2
CYBEROPTICS CORPORATION
STOCK OPTION AGREEMENT
THIS AGREEMENT, made as of the 12th day of January, 1998 by
and between CyberOptics Corporation, a Minnesota corporation ("the Company"),
and Steven M. Quist ("Employee").
WITNESSETH, THAT:
WHEREAS, the Company wishes to grant this stock option to
Employee.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the parties hereto hereby agree as follows:
1. Definitions
For all purposes of this Option, the following terms shall
have the meanings ascribed to them below:
(a) An "Adverse Change" in Employee's employment shall mean
the occurrence of any of the following events:
(i) the assignment to Employee of employment
responsibilities which are not of comparable responsibility
and status as the employment responsibilities held by
Executive immediately prior to a Change in Control;
(ii) a reduction by the Company in Employee's
compensation (including targeted bonus compensation) as in
effect immediately prior to a Change in Control;
(iii) the Company's requiring Employee to be based
anywhere after a Change of Control other than within fifty
(50) miles of Employee's office location immediately prior to
a Change in Control, except for requirements of temporary
travel on the Company's business to an extent substantially
consistent with Employee's business travel obligations
immediately prior to a Change in Control; or
(d) except to the extent otherwise required by
applicable law, the failure by the Company to continue in
effect after a Change in Control any benefit or compensation
plan, stock ownership plan, stock purchase plan, bonus plan,
life insurance plan, health-and-accident plan or disability
plan in which Employee is participating immediately prior to a
Change in Control (or plans providing Employee with
substantially similar benefits), the taking of any action by
the Company which would adversely affect Employee's
participation in, or materially reduce Employee's benefits
under, any of such plans or deprive Employee of any material
fringe benefit enjoyed by Employee immediately prior to such
Change in Control, or the failure by the Company to provide
Employee with the number of paid vacation days to which
Employee is entitled immediately prior to such Change in
Control in accordance with the Company's vacation policy as
then in effect.
(b) "Change in Control" shall mean:
(i) a change in control of a nature that would be
required to be reported in response to Item 6(e) of Schedule
14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), whether
or not the Company is then subject to such reporting
requirement;
(ii) the public announcement (which, for purposes of
this definition, shall
<PAGE>
include, without limitation, a report filed pursuant to
Section 13(d) of the Exchange Act) by the Company or any
"person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) that such person has become the "beneficial
owner" (as defined in Rule 13d-3 promulgated under the
Exchange Act), directly or indirectly, of securities of the
Company representing 40% or more of the combined voting power
of the Company's then outstanding securities;
(ii) the Continuing Directors cease to constitute a
majority of the Company's Board of Directors;
(iii) the shareholders of the Company approve (x) any
consolidation or merger of the Company in which the Company is
not the continuing or surviving corporation or pursuant to
which shares of Company stock would be converted into cash,
securities or other property, other than a merger of the
Company in which shareholders immediately prior to the merger
have the same proportionate ownership of stock of the
surviving corporation immediately after the merger; (y) any
sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all or substantially all
of the assets of the Company; or (z) any plan of liquidation
or dissolution of the Company; or
(iv) the majority of the Continuing Directors
determine in their sole and absolute discretion that there has
been a change in control of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(d) "Company" shall mean CyberOptics Corporation, a Minnesota
corporation, and with respect to any reference to Employee's employer, any
subsidiary of CyberOptics Corporation.
(e) "Common Stock" shall mean the common stock, no par value,
of the Company.
(f) "Continuing Director" shall mean any person who is a
member of the Board of Directors of the Company, while such person is a member
of the Board of Directors, who is not an Acquiring Person (as defined below) or
an Affiliate or Associate (as defined below) of an Acquiring Person, or a
representative of an Acquiring Person or of any such Affiliate or Associate, and
who (x) was a member of the Board of Directors on the effective date of this
Option or (y) subsequently becomes a member of the Board of Directors, if such
person's initial nomination for election or initial election to the Board of
Directors is recommended or approved by a majority of the Continuing Directors.
For purposes of this subparagraph (ii), "Acquiring Person" shall mean any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
who beneficially owns (as defined in Rule 13d-3 of the Exchange Act), directly
or indirectly, securities of the Company representing 40% or more of the
combined voting power of the Company's then outstanding securities, but shall
not include the Company, any subsidiary of the Company or any employee benefit
plan of the Company or of any subsidiary of the Company or any entity holding
shares of Common Stock organized, appointed or established for, or pursuant to
the terms of, any such plan; and "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 promulgated under the
Exchange Act.
(g) "Disabled" or "Disability" shall have the meaning
attributed to it by Section 105(d)(4) of the Code or any successor section.
(h) "Option" shall mean the right to purchase Common Stock of
the Company represented by this Agreement.
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<PAGE>
(i) "Resign" or "Resignation" shall mean the voluntary
termination by Employee of employment with the Company, unless the Company
agrees, through its Board of Directors, that such voluntary termination shall
not constitute a resignation for purposes of this Option.
2. Grant of Option
The Company hereby grants to Employee, on the date set forth
above and at the times and subject to the conditions set forth below, the right
and option to purchase all or any part of an aggregate of 100,000 shares of
Common Stock at the price of $19.50 per share on the terms and conditions set
forth herein. This Option is not intended to be an incentive stock option within
the meaning of Section 422 of the Code.
3. Duration and Exercisability
(a) Except as provided in paragraph 3(b) or 4(b) below, this
Option may not be exercised by Employee until the expiration of one (1) year
from the date that Employee commences full-time employment with the Company (the
"Commencement Date") and shall become exercisable on the first anniversary of
the Commencement Date with respect to 25% of the shares subject hereto and with
respect to an additional cumulative 25% of the shares subject to this Option on
the anniversary of the Commencement Date in each year thereafter until the
fourth anniversary of the Commencement Date when this Option shall be
exercisable in full. This Option shall terminate in all events five (5) years
after the date of grant.
(b) Notwithstanding Section 3(a), the exercisability of this
Option shall be accelerated, and this Option shall become exercisable with
respect to all of the shares subject to this Option, in the event of an Adverse
Change in Employee's employment after a Change In Control.
(c) During the lifetime of Employee, the Option shall be
exercisable only by Employee and shall not be assignable or transferable by
Employee, other than by will or the laws of descent and distribution.
4. Effect of Termination of Employment
(a) In the event that Employee (i) shall cease to be employed
by the Company after the Commencement Date and prior to a Change of Control for
any reason other than Employee's gross and willful misconduct or Employee's
death or Disability, or (ii) shall Resign after a Change of Control and prior to
an Adverse Change, then Employee shall have the right to exercise the Option at
any time within three months after such termination of employment or Resignation
to the extent of the full number of shares Employee was entitled to purchase
under the Option on the date of termination or resignation, subject to the
condition that no Option shall be exercisable after the expiration of the term
of the option.
(b) In the event that Employee employment with the Company is
terminated by the Company after the Commencement Date and within two years after
a Change of Control, Employee shall have the right to exercise the Option at any
time within three months after such termination of employment with respect to
the full number of shares subject to this Option.
(c) In the event that Employee shall cease after the
Commencement Date to be employed by the Company by reason of Employee's gross
and willful misconduct during the course of employment, including but not
limited to wrongful appropriation of the Company funds or the commission of a
gross misdemeanor or felony, the option shall be terminated as of the date of
the misconduct.
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<PAGE>
(d) If Employee shall die while in the employ of the Company
or within three months after termination of employment for any reason other than
gross and willful misconduct or become Disabled while in the employ of the
Company and Employee shall not have fully exercised the option, such option may
be exercised at any time within twelve months after Employee's death or
Disability by the personal representatives or administrators, or if applicable
guardian, of Employee 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 Employee 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.
5. Manner of Exercise
(a) The option can be exercised only by Employee or other
proper party by delivering within the option period written notice to the
Company at its principal office. The notice shall state the number of shares as
to which the option is being exercised and be accompanied by payment in full of
the option price for all shares designated in the notice.
(b) Employee may pay the option price by check (bank check,
certified check or personal check) or with the approval of the Company by
delivering to the Company for cancellation Common Stock of the Company with a
fair market value equal to the option price; provided, however, that Employee
shall not be entitled to tender shares of the Common Stock pursuant to
successive, substantially simultaneous exercises of this Option or any other
stock option of the Company. For these purposes, the fair market value of the
Common Stock shall be as reasonably determined by the Company but shall not be
less than, if applicable, (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 on
the date as of which fair market value is being determined.
6. Miscellaneous
(a) This Agreement shall not confer on Employee any right with
respect to employment or continuance of employment by the Company, nor will it
interfere in any way with the right of the Company to terminate such employment
at any time. Employee shall have none of the rights of a shareholder with
respect to shares subject to this Option until such shares shall have been
issued to Employee upon exercise of this Option.
(b) The exercise of all or any parts of this Option shall only
be effective at such time that the sale of Common Stock pursuant to such
exercise will not violate any state or federal securities or other laws.
(c) If Employee exercises all or any portion of the Option
subsequent to any change in the number or character of the Common Stock (through
merger, consolidation, reorganization, recapitalization, stock dividend or
otherwise), Employee shall then receive for the aggregate price paid by Employee
on such exercise of the Option, the number and type of securities or other
consideration which Employee would have received if such Option had been
exercised prior to the event changing the number or character of outstanding
shares.
(d) The Company shall at all times during the term of the
Option reserve and keep available such number of shares as will be sufficient to
satisfy the requirements of this Agreement.
(e) In order to provide the Company with the opportunity to
claim the benefit of any
4
<PAGE>
income tax deduction which may be available to it upon the exercise of the
Option, and in order to comply with all applicable federal or state income tax
laws or regulations, the Company may take such action as it deems appropriate to
insure that, if necessary, all applicable federal or state payroll, withholding,
income or other taxes are withheld or collected from Employee. Employee may
elect to satisfy his federal and state income tax withholding obligations upon
exercise of the Option by (i)having the Company withhold a portion of its common
shares otherwise to be delivered upon exercise of the Option having a fair
market value equal to the amount of federal and state income tax required to be
withheld upon such exercise, or (ii)delivering to the Company shares of Common
Stock other than the shares issuable upon exercise of the Option with a fair
market value equal to such taxes.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the day and year first above written.
CYBEROPTICS CORPORATION
By /s/ Steven K. Case
----------------------------
Its Founder
----------------------------
/s/ Steven M. Quist
-------------------------------
Employee
5
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
350,000 common shares, no par value, which may be issued pursuant to the
exercise of options granted or which may be granted under the Company's 1998
Stock Incentive Plan and Stock Option Agreement with Steven M. Quist (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 350,000 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: August 17, 1998
Very truly yours,
/s/ Dorsey & Whitney LLP
TOM
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 January 30, 1998, except for the
second paragraph of Note 8, as to which the date is March9, 1998, on our audits
of the consolidated financial statements and financial statement schedule of
CyberOptics Corporation as of December 31, 1997 and 1996, and for the years
ended December 31, 1997, 1996, and 1995, which reports are included or
incorporated by reference in CyberOptics Corporation's Annual Report on Form
10-K for the year ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Minneapolis, Minnesota
August 17, 1998
