As filed with the Securities and Exchange Commission on August 5, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------
FEI COMPANY
(Exact name of registrant as specified in its charter)
--------------
OREGON 93-0621989
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
7451 NW Evergreen Parkway
Hillsboro, Oregon 97124-5830
(Address of Principal (Zip Code)
Executive Offices)
--------------
FEI Company
1995 Stock Incentive Plan, as amended
(Full title of plan)
William A. Whitward
President
FEI Company
7451 NW Evergreen Parkway
Hillsboro, OR 97124-5830
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (503) 640-7500
Copy to:
Carolyn M. Vogt
Stoel Rives LLP
900 SW Fifth Avenue, Suite 2300
Portland, Oregon 97204-1268
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------
Proposed Proposed Amount
Maximum Maximum of
Amount Offering Aggregate Regis-
Title of Securities to Be Price Per Offering tration
to Be Registered Registered Share(1) Price(1) Fee
- ---------------- ---------- -------- -------- ---
<S> <C> <C> <C> <C>
Common Stock 500,000 Shares $17.9375 $8,968,750 $2,717.80
- -----------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933. The calculation
of the registration fee for the shares is based on $17.9375, which was the
average of the high and low prices of the Common Stock on July 31, 1997 as
reported in The Wall Street Journal for Nasdaq National Market issues.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
----------------------------------------
The following documents filed by FEI Company (the "Company") with the
Securities and Exchange Commission are incorporated herein by reference:
(a) The Company's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 or the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act of 1933 that
contains audited consolidated financial statements for the Company's latest
fiscal year for which such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by
the annual report or prospectus referred to in (a) above.
(c) The description of the authorized capital stock of the Company
contained in the Company's registration statement filed under Section 12 of
the Securities Exchange Act of 1934, including any amendment or report
filed for the purpose of updating the description.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended, 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 date of the filing of such reports and
documents.
Item 4. Description of Securities.
--------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Article VI of the Company's Second Amended and Restated Articles of
Incorporation, as amended (the "Articles"), requires indemnification of current
or former directors or officers of the Company to the fullest extent not
prohibited by the Oregon
II-1
<PAGE>
Business Corporation Act (the "Act"). The effects of the Articles and the Act
(the "Indemnification Provisions") are summarized as follows:
(a) The Indemnification Provisions grant a right of indemnification in
respect of any action, suit or proceeding (other than an action by or in
the right of the Company) against expenses (including attorney fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred, if the person concerned acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of
the Company, was not adjudged liable on the basis of receipt of an improper
personal benefit and, with respect to any criminal action or proceeding,
had no reasonable cause to believe the conduct was unlawful. The
termination of an action, suit or proceeding by judgment, order,
settlement, conviction or plea of nolo contendere does not, of itself,
create a presumption that the person did not meet the required standards of
conduct.
(b) The Indemnification Provisions grant a right of indemnification in
respect of any action or suit by or in the right of the Company against the
expenses (including attorney fees) actually and reasonably incurred if the
person concerned acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the Company,
except that no right of indemnification will be granted if the person is
adjudged to be liable to the Company.
(c) Every person who has been wholly successful on the merits of a
controversy described in (a) or (b) above is entitled to indemnification as
a matter of right.
(d) Because the limits of permissible indemnification under Oregon law
are not clearly defined, the Indemnification Provisions may provide
indemnification broader than that described in (a) and (b).
(e) The Company may advance to a director or officer the expenses
incurred in defending any action, suit or proceeding in advance of its
final disposition if the director or officer affirms in good faith that he
or she has met the standard of conduct to be entitled to indemnification as
described in (a) or (b) above and undertakes to repay any amount advanced
if it is determined that the person did not meet the required standard of
conduct.
The Company may obtain insurance for the protection of its directors and
officers against any liability asserted against them in their official
capacities. The rights of indemnification described above are not exclusive of
any other rights of indemnification to which the persons indemnified may be
entitled under any bylaw, agreement, vote of shareholders or otherwise.
II-2
<PAGE>
In addition, the Company's Restated Bylaws provide that the expenses
incurred by a current or former director or officer in any proceeding shall be
paid by the Company in advance at the written request of the director or
officer, if the direct or officer:
(a) furnishes the Company a written affirmation of such person's good
faith belief that such person is entitled to be indemnified by the Company;
(b) furnishes the Company a written undertaking to repay such advance
to the extent that it is ultimately determined by a court that such person
is not entitled to be indemnified by the Company. Such advances shall be
made without regard to the person's ability to repay such expenses and
without regard to the person's ultimate entitlement to indemnification
under the Restated Bylaws or otherwise; and
(c) the term "expenses" shall be broadly construed and shall include,
without limitation, expense of investigations, judicial or administrative
proceedings or appeals, attorneys' fees and disbursements and any expenses
of establishing a right to indemnification under the Restated Bylaws, but
shall not include amounts paid in settlement by the indemnified party or
the amount of judgment or fines against the indemnified party.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed 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.
Item 7. Exemption From Registration Claimed.
------------------------------------
Not Applicable.
Item 8. Exhibits.
---------
4.1 Second Amended and Restated Articles of Incorporation, as amended, of
the Company (incorporated by reference to Exhibit 3.1 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, File No. 0-22780 (the "1996 10-K")).
4.2 Restated Bylaws of the Company (incorporated by reference to Exhibit
3.2 to the 1996 10-K).
5.1 Opinion of Stoel Rives LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of KPMG Accountants N.V.
II-3
<PAGE>
23.3 Consent of Stoel Rives LLP (included in Exhibit 5.1).
24.1 Powers of Attorney.
Item 9. Undertakings.
-------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of the securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed 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
II-4
<PAGE>
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act 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 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the 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 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.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Hillsboro, State of Oregon, on July 22, 1997.
FEI COMPANY
By WILLIAM A. WHITWARD
--------------------------------------
William A. Whitward,
President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on July 22, 1997.
Signature Title
WILLIAM A. WHITWARD President and Chief Executive Officer
- ---------------------------------- (Principal Executive Officer)
William A. Whitward
WILLIAM G. LANGLEY Executive Vice President, Chief
- ---------------------------------- Financial Officer, Secretary and
William G. Langley Director (Principal Financial Officer)
FREDERICK A. M. GORDON Controller and Assistant Treasurer
- ---------------------------------- (Principal Accounting Officer)
Frederick A. M. Gordon
LYNWOOD W. SWANSON, PH.D. Chairman of the Board
- ----------------------------------
Lynwood W. Swanson, Ph.D.
KAREL D. VAN DER MAST Executive Vice President, Marketing,
- ---------------------------------- Technical Officer and Director
Karel D. Van Der Mast
II-6
<PAGE>
Director
- ----------------------------------
Alfred B. Bok
WILLIAM CURRAN Director
- ----------------------------------
William Curran
THEO J.H.J. SONNEMANS Director
- ----------------------------------
Theo J.H.J. Sonnemans
LLOYD R. SWENSON Director
- ----------------------------------
Lloyd R. Swenson
DONALD R. VANLUVANEE Director
- ----------------------------------
Donald R. VanLuvanee
II-7
<PAGE>
EXHIBIT INDEX
Exhibit
Number Document Description
- ------ --------------------
4.1 Second Amended and Restated Articles of Incorporation, as amended, of
the Company (incorporated by reference to Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31,
1996, File No. 0-22780 (the "1996 10-K")).
4.2 Restated Bylaws of the Company (incorporated by reference to Exhibit
3.2 to the 1996 10-K).
5.1 Opinion of Stoel Rives LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of KPMG Accountants N.V.
23.3 Consent of Stoel Rives LLP (included in Exhibit 5.1).
24.1 Powers of Attorney.
EXHIBIT 5.1
July 31, 1997
Board of Directors
FEI Company
7451 NW Evergreen Parkway
Hillsboro, Oregon 97006-6063
We have acted as counsel for FEI Company (the "Company") in connection with
the filing of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, covering 500,000
shares of common stock (the "Shares") of the Company issuable in connection with
the Company's 1995 Stock Incentive Plan, as amended (the "Amended Plan"). We
have reviewed the corporate actions of the Company in connection with this
matter and have examined those documents, corporate records, and other
instruments we deemed necessary for the purposes of this opinion.
Based on the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the state of Oregon; and
2. The Shares have been duly authorized and, when issued pursuant to the
Amended Plan and in accordance with the resolutions adopted by the Board of
Directors of the Company, will be legally issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/
STOEL RIVES LLP
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
the FEI Company 1995 Stock Incentive Plan As Amended on Form S-8 of our report
dated January 31, 1997, appearing in the Annual Report on Form 10-K of FEI
Company for the year ended December 31, 1996 and to the reference to us under
the heading "Experts" in the Prospectus, which is part of this Registration
Statement.
DELOITTE & TOUCHE LLP
Portland, Oregon
July 31, 1997
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
the FEI Company 1995 Stock Incentive Plan As Amended on Form S-8 of our report
dated April 9, 1997, appearing in the Current Report on Form 8-K/A of FEI
Company and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
KPMG ACCOUNTANTS N.V.
Eindhoven, The Netherlands
August 5, 1997
EXHIBIT 24.1
POWER OF ATTORNEY
(FEI Company 1995 Stock Incentive Plan As Amended)
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer and/or
director of FEI COMPANY, does hereby constitute and appoint WILLIAM A. WHITWARD
and WILLIAM G. LANGLEY his true and lawful attorney and agent to do any and all
acts and things and to execute in his name (whether on behalf of FEI Company or
as an officer or director of said Company, or otherwise) any and all instruments
which said attorney and agent may deem necessary or advisable in order to enable
FEI Company to comply with the Securities Act of 1933, as amended, and any
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of FEI Company issuable pursuant to the 1995 Stock
Incentive Plan As Amended, including specifically, but without limitation
thereto, power and authority to sign his name (whether on behalf of FEI Company
or as an officer or director of said Company, or otherwise) to a Registration
Statement on Form S-8 and any amendment thereto (including any post-effective
amendment) or application for amendment thereto in respect to such Common Stock
or any exhibits filed therewith; and to file the same with the Securities and
Exchange Commission; and the undersigned does hereby ratify and confirm all that
said attorney and agent shall do or cause to be done by virtue hereof.
DATED: July 22, 1997
LYNWOOD W. SWANSON LLOYD R. SWENSON
- ---------------------------------- ----------------------------------
Lynwood W. Swanson Lloyd R. Swenson
WILLIAM G. LANGLEY
- ---------------------------------- ----------------------------------
William G. Langley Alfred B. Bok
KAREL D. VAN DER MAST WILLIAM CURRAN
- ---------------------------------- ----------------------------------
Karel D. Van Der Mast William Curran
FREDERICK A. M. GORDON THEO J.H.J. SONNEMANS
- ---------------------------------- ----------------------------------
Frederick A. M. Gordon Theo J.H.J. Sonnemans
DONALD R. VANLUVANEE
- ----------------------------------
Donald R. VanLuvanee
