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As filed with the Securities and Exchange Commission on August 31, 2000
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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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)
JOHN S. HODGSON
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:
CAROLYN M. VOGT
STOEL RIVES LLP
900 SW FIFTH AVENUE, SUITE 2300
PORTLAND, OREGON 97204-1268
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
----------------------- --------------------------- ------------------------------- ----------------------------- ------------------
Title of Securities Proposed Maximum Offering Proposed Maximum Aggregate Amount of
To be Registered Amount to be Registered Price Per Share(1) Offering Price (1) Registration Fee
---------------- ----------------------- ------------------ ------------------ ----------------
----------------------- --------------------------- ------------------------------- ----------------------------- ------------------
<S> <C> <C> <C> <C>
Common Stock 600,000 Shares $30.00 $18,000,000 $4,752
----------------------- --------------------------- ------------------------------- ----------------------------- ------------------
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(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
600,000 shares is based on $30.00 per share, which was the average of the
high and low price per share of the Common Stock on August 29, 2000.
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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 III of the Registrant's Second Amended and Restated Articles of
Incorporation requires indemnification of current or former directors of FEI to
the fullest extent not prohibited by the Oregon Business Corporation Act. The
Oregon Business Corporation Act
II-1
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permits or requires indemnification of directors and officers in certain
circumstances. The effects of the indemnification provisions are as follows:
(a) The indemnification provisions grant a right of
indemnification in respect of any proceeding (other than an action by
or in the right of FEI), 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 interest of FEI, 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 a proceeding by judgment,
order, settlement, conviction or plea of nolo centendere, or its
equivalent, is not, of itself, determinative that the person did not
meet the required standards of conduct.
(b) The indemnification provisions grant a right of
indemnification in respect of any proceeding by or in the right of FEI
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 FEI, except that no right of indemnification will be
granted if the person is adjudged to be liable to FEI.
(c) Every person who has been wholly successful, on the
merits or otherwise, in the defense of any proceeding to which the
person was a party because of the person's status as a director or
officer 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 Registrant may advance to a director or officer
the expenses incurred in defending any proceeding in advance of its
final disposition if the director or officer affirms in writing 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 Registrant has obtained 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 directors 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 Stoel Rives LLP (included in Exhibit 5.1).
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24.1 Powers of Attorney (see page II-6 of the Registration
Statement).
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 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.
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(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 August 31, 2000.
FEI COMPANY
By: /s/ VAHE A. SARKISSIAN
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Vahe A. Sarkissian
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Vahe A. Sarkissian and John S. Hodgson,
and each of them, his true and lawful attorneys-in-fact and agents, each with
full power of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any or all amendments to this Registration Statement on
Form S-8, and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
with this Registration Statement, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents shall, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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 August 31, 2000.
Signature Title
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/s/ DR. LYNWOOD W. SWANSON Chairman of the Board of Directors
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Dr. Lynwood W. Swanson
/s/ VAHE A. SARKISSIAN President, and Chief Executive
------------------------------ Officer and Director
Vahe A. Sarkissian (Principal Executive Officer)
/s/ JOHN S. HODGSON Senior Vice President and Chief
------------------------------ Financial Officer
John S. Hodgson (Principal Financial Officer)
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/s/ MARK V. ALLRED Corporate Controller
------------------------------ (Principal Accounting Officer)
Mark V. Allred
/s/ MICHAEL J. ATTARDO Director
------------------------------
Michael J. Attardo
Director
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Eric H. Goeld
/s/ WILLIAM E. CURRAN Director
------------------------------
William E. Curran
Director
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Dr. William W. Lattin
/s/ DR. JAN C. LOBBEZOO Director
------------------------------
Dr. Jan C. Lobbezoo
Director
------------------------------
Donald R. VanLuvanee
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EXHIBIT INDEX
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Exhibit
Number Document Description
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<S> <C>
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 Stoel Rives LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (see page II-6 of the Registration Statement).
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