As filed with the Securities and Exchange Commission on __________, 1998
Registration No. 333-__________
================================================================================
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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FEI COMPANY
(Exact name of registrant as specified in its charter)
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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)
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FEI Company
Employee Share Purchase Plan
(Full title of plan)
William G. Langley
Executive Vice President and Chief Financial Officer
FEI Company
7451 NW Evergreen Parkway
Hillsboro, Oregon 97124-5830
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (503) 640-7500
Copy to:
Stephen E. Babson
Stoel Rives LLP
900 SW Fifth Avenue, Suite 2300
Portland, Oregon 97204-1268
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------
Proposed Proposed Maximum
Title of Securities Amount to Maximum Offering Aggregate Offering Amount of
to Be Registered be Registered Price Per Share(1) Price (1) Registration Fee
- ---------------- -------------- ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock 250,000 Shares $7.0468 $1,761,000 $519.70
- -----------------------------------------------------------------------------------------------------------
(1) The proposed maximum offering price per share and the proposed maximum
aggregate offering price are 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
250,000 shares is based on $7.0468, which was the average of the high and
low prices of the Common Stock on June 15, 1998 as reported in The Wall
Street Journal for Nasdaq National Market issues.
</TABLE>
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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
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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.
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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 director 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
(incorporated by reference to Exhibits to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31, 1996
(the "1996 10-K")).
4.2 Restated Bylaws (incorporated by reference to Exhibits 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.
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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 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 a new registration statement relating to the securities offered
therein, and the
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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.
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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 June 16, 1998.
FEI COMPANY
By VAHE SARKISSIAN
-------------------------------------
Vahe Sarkissian,
President and Chief Executive Officer
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 June 16, 1998.
Signature Title
--------- -----
VAHE SARKISSIAN President, Chief Executive Officer and
- ---------------------------------- Director (Principal Executive Officer)
Vahe Sarkissian
WILLIAM G. LANGLEY Executive Vice President, Chief
- ---------------------------------- Financial Officer, Secretary and
William G. Langley Director (Principal Financial Officer)
MARK ALLRED Controller and Assistant Treasurer
- ---------------------------------- (Principal Accounting Officer)
Mark Allred
*LYNWOOD W. SWANSON 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
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*ALFRED B. BOK 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
*WILLIAM A. WHITWARD Director
- ----------------------------------
William A. Whitward
*By: WILLIAM G. LANGLEY
----------------------------------
William G. Langley
Attorney-in-Fact
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EXHIBIT INDEX
Exhibit
Number Document Description
- ------- --------------------
4.1 Second Amended and Restated Articles of Incorporation, as amended,
(incorporated by reference to Exhibits to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31, 1996
(the "1996 10-K")).
4.2 Restated Bylaws (incorporated by reference to Exhibits 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.
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EXHIBIT 5.1
June 19, 1998
Board of Directors
FEI Company
7451 NW Evergreen Parkway
Hillsboro, Oregon 97124-5830
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 250,000
shares of common stock (the "Shares") of the Company issuable in connection with
the Company's Employee Share Purchase Plan (the "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 legally existing under
the laws of the state of Oregon; and
2. The Shares have been duly authorized and, when issued pursuant to the
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,
STOEL RIVES LLP
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
the FEI Company Employee Share Purchase Plan on Form S-8 of our report dated
March 24, 1998, appearing in the Annual Report on Form 10-K of FEI Company for
the year ended December 31, 1997.
DELOITTE & TOUCHE LLP
Portland, Oregon
June 18, 1998
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8, relating to the FEI Company Employee Share Purchase Plan, 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
June 15, 1998
EXHIBIT 24.1
POWER OF ATTORNEY
(FEI Company Employee Share Purchase Plan)
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,
LYNWOOD W. SWANSON 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 FEI Company Employee Share Purchase Plan, 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: January 29, 1998
LYNWOOD W. SWANSON LLOYD R. SWENSON
- ---------------------------------- ----------------------------------
Lynwood W. Swanson Lloyd R. Swenson
WILLIAM G. LANGLEY ALFRED B. BOK
- ---------------------------------- ----------------------------------
William G. Langley Alfred B. Bok
KAREL D. VAN DER MAST WILLIAM CURRAN
- ---------------------------------- ----------------------------------
Karel D. van der Mast William Curran
MARK ALLRED THEO J.H.J. SONNEMANS
- ---------------------------------- ----------------------------------
Mark Allred Theo J.H.J. Sonnemans
DONALD R. VANLUVANEE WILLIAM A. WHITWARD
- ---------------------------------- ----------------------------------
Donald R. VanLuvanee William A. Whitward
