-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, L4Tbnd7kH/Z/AmWdAFOA897tPXCuescdi3Fx1tWeQvWGCt643bTuaKZxO8MQyLD3 1HnoiXJIWApWd3katHOxkw== 0000950142-04-002277.txt : 20040629 0000950142-04-002277.hdr.sgml : 20040629 20040629084448 ACCESSION NUMBER: 0000950142-04-002277 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040629 EFFECTIVENESS DATE: 20040629 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EXFO ELECTRO OPTICAL ENGINEERING INC CENTRAL INDEX KEY: 0001116284 STANDARD INDUSTRIAL CLASSIFICATION: INSTRUMENTS FOR MEAS & TESTING OF ELECTRICITY & ELEC SIGNALS [3825] IRS NUMBER: 980131231 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-116945 FILM NUMBER: 04886884 BUSINESS ADDRESS: STREET 1: 400 GODIN AVENUE STREET 2: VANIER STATE: A8 ZIP: G1M 2K2 BUSINESS PHONE: 4186830211 MAIL ADDRESS: STREET 1: 400 GODIN AVENUE STREET 2: VANIER STATE: A8 ZIP: G1M 2K2 S-8 1 form_s8.txt FORM S-8 As filed with the Securities and Exchange Commission on June 28, 2004 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------------- EXFO ELECTRO-OPTICAL ENGINEERING INC. (Exact name of registrant as specified in its charter) CANADA 98-0131231 (State or other (I.R.S. Employer jurisdiction of Identification No.) incorporation or organization) -------------------------- 400 GODIN AVENUE VANIER, QUEBEC CANADA G1M 2K2 (418) 683-0211 (Address, Including Zip Code, and Telephone Number, including Area Code, of Registrant's Principal Executive Offices) -------------------------- STOCK OPTION PLAN (Full title of the plan) -------------------------- CT CORPORATION SYSTEM 111 EIGHTH AVENUE NEW YORK, NEW YORK 10011 (212) 894-8940 (Name and Address, including Zip Code, and Telephone Number, including Area Code of Agent For Service) -------------------------- COPIES TO: EDWIN S. MAYNARD, ESQ. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10019-6064 (212) 373-3000 --------------------------
CALCULATION OF REGISTRATION FEE =========================================================================================================================== PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF EACH CLASS OF SECURITIES AMOUNT OFFERING PRICE AGGREGATE OFFERING AMOUNT OF TO BE REGISTERED TO BE REGISTERED PER SHARE (3) PRICE (3) REGISTRATION FEE - --------------------------------------------------------------------------------------------------------------------------- Subordinate voting shares, 1,835,192 (1)(2) U.S. $4.32 U.S. $7,928,030 U.S. $1,005 without par value - ---------------------------------------------------------------------------------------------------------------------------
(1) Represents 1,835,192 shares issuable upon exercise of options to be granted pursuant to the Registrant's Stock Option Plan. (2) This Registration Statement shall, in accordance with Rule 416 under the Securities Act of 1933, as amended, be deemed to cover such additional shares as may be issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. (3) Estimated solely for the purpose of computing the registration fee in accordance with Rule 457(c) and 457(h)(1) of the Securities Act and based on the average of the high and the low prices of the subordinate voting shares reported on the Nasdaq National Market on June 22, 2004. EXPLANATORY NOTE Pursuant to General Instruction E of Form S-8, the registrant, EXFO Electro-Optical Engineering Inc. (the "Registrant"), is filing this registration statement with respect to the issuance of an additional 1,835,192 shares issuable upon exercise of options to be granted pursuant to the Registrant's Stock Option Plan (the "Plan"). On June 28, 2001, the Registrant filed a registration statement (the "Original Registration Statement") on Form S-8 (File No. 333-64004) with respect to the issuance of 4,470,961 shares issuable upon exercise shares of options to be granted pursuant to the Plan. The contents of the Original Registration Statement are hereby incorporated in this registration statement by reference. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT EXHIBIT NO. DESCRIPTION OF EXHIBIT - ----------- ---------------------- 4.1(a)* Stock Option Plan 5.1 Opinion of Fasken Martineau DuMoulin LLP regarding the legality of the securities being registered 23.1 Consent of PricewaterhouseCoopers LLP 23.2 Consent of Fasken Martineau DuMoulin LLP (contained in Exhibit 5.1) 24.1 Power of attorney (included on the signature page) - ------------ * Incorporated by reference from Form S-8 filed on June 28, 2001 (File No. 333-64004) SIGNATURES Pursuant to the requirements of the Securities Act, 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 Vanier, Province of Quebec, Canada, on June 28, 2004. EXFO ELECTRO-OPTICAL ENGINEERING INC. By: /s/ Germain Lamonde --------------------------------------- Name: Germain Lamonde Title: Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY We, the undersigned, officers and directors of EXFO Electro-Optical Engineering Inc. hereby severally constitute Germain Lamonde and Pierre Plamondon, or any one of them, with full power to act without the other, our true and lawful attorneys, with full power to sign for us and in our names in the capacities indicated below, any and all amendments, including post-effective amendments, to this Registration Statement, and generally do all such things in our name and behalf in such capacities to enable EXFO Electro-Optical Engineering Inc. to comply with the applicable provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, and we hereby ratify and confirm our signatures as they may be signed by our said attorneys to any and all such amendments. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-8 has been signed by the following persons in the capacities indicated on June 28, 2004:
SIGNATURES TITLE /s/ Germain Lamonde - ----------------------------- Chairman of the Board, President and Chief Executive Officer* Germain Lamonde (Principal Executive Officer) /s/ Pierre Plamondon - ----------------------------- Vice-President, Finance and Chief Financial Officer Pierre Plamondon, CA (Principal Financial and Accounting Officer) /s/ Pierre Marcouiller - ----------------------------- Director* Pierre Marcouiller /s/ David A. Thompson - ----------------------------- Director* David A. Thompson /s/ Andre Tremblay - ----------------------------- Director* Andre Tremblay /s/ Michael Unger - ----------------------------- Director* Michael Unger
II-2 SIGNATURES TITLE /s/ Guy Marier - ----------------------------- Director* Guy Marier II-3 Authorized Representative in the United States: EXFO America Inc. By: /s/ Germain Lamonde -------------------------------------------- Name: Germain Lamonde Title: Director - ------------------------ * The Stock Option Plan, under which the Shares being registered pursuant to this Registration Statement are issuable, is subject to administration by the Board of Directors of the Registrant II-4 EXHIBIT NO. DESCRIPTION OF EXHIBIT - ----------- ---------------------- 4.1(a)* Stock Option Plan 5.1 Opinion of Fasken Martineau DuMoulin LLP regarding the legality of the securities being registered 23.1 Consent of PricewaterhouseCoopers LLP 23.2 Consent of Fasken Martineau DuMoulin LLP (contained in Exhibit 5.1) 24.1 Power of attorney (included on the signature page) - ------------------------ * Incorporated by reference from Form S-8 filed on June 28, 2001 (File No. 333-64004) II-5 EX-5 2 ex5-1_forms8.txt EXHIBIT 5.1 EXHIBIT 5.1 ----------- FASKEN MARTINEAU DUMOULIN LLP www.fasken.com Barristers and Solicitors Patent and Trade-mark Agents [GRAPHIC OMITTED] 140, Grande Allee East [LOGO - FASKEN MARTINEAU] Suite 800 Quebec, Quebec, Canada G1R 5M8 418 640 2000 Telephone 418 647 2455 Facsimile June 22, 2004 EXFO ELECTRO-OPTICAL ENGINEERING INC./ THE SECURITIES AND EXCHANGE EXFO INGENIERIE ELECTRO-OPTIQUE INC. COMMISSION 400 Godin Avenue 450 5th Street, NW Vanier, Quebec Canada Washington, DC G1M 1K2 20549 RE: REGISTRATION STATEMENT ON FORM S-8 EXFO ELECTRO-OPTICAL ENGINEERING INC./ EXFO INGENIERIE ELECTRO-OPTIQUE INC. (THE "CORPORATION") Ladies and Gentlemen: We have acted as Canadian counsel for the Corporation in connection with the preparation and filing of a registration statement on Form S-8 ("Registration Statement") under the SECURITIES ACT of 1933, as amended ("Securities Act"), which the Corporation is filing with the Securities and Exchange Commission with respect to the increase of the total number of Subordinate Voting Shares issuable pursuant to the Corporation's Stock Option Plan, as amended (the "Additional Shares"); We have examined the Registration Statement and such documents and records of the Corporation and other documents as we have deemed necessary for the purpose of this opinion. In such examination, we have assumed, without independent investigation, (i) the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as photostatic or facsimile copies, and the authenticity of the originals of such copies, (ii) the accuracy of the factual representations made to us by officers and other representatives of the Corporation, whether evidenced by certificates or otherwise, (iii) the identity and capacity of all individuals acting or purporting to act as public officials, and (iv) that all actions contemplated by the Registration Statement have been and will be carried out only in the manner described therein. Based upon the foregoing, it is our opinion that, pursuant to the CANADA BUSINESS CORPORATIONS ACT: Vancouver Yellowknife Toronto Montreal Quebec New York London [GRAPHIC OMITTED] [LOGO - FASKEN MARTINEAU] 1. The Corporation is incorporated and validly existing as a corporation pursuant to the CANADA BUSINESS CORPORATIONS ACT; 2. The Additional Shares will constitute, when issued upon the exercise of the options under the Corporation's Stock Option Plan, as amended, according to their terms, Subordinate Voting Shares, without nominal value, of the share capital of the Corporation, validly issued and outstanding as fully paid and non-assessable. In rendering this opinion we express no opinion as to the laws of any jurisdiction other than the laws of the Province of Quebec and the federal laws of Canada applicable therein. This opinion is provided exclusively for your benefit and may not be relied on by any other person without our express written consent. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our name under the caption "Legal Matters" in the prospectus to be distributed to participating employees as required by Rule 428 (b) (1) under the Securities Act. In giving this consent, we do not agree or admit that we come within the category of persons whose consent is required by the Securities Act. Yours truly, FASKEN MARTINEAU DUMOULIN LLP EX-23 3 ex23-1_forms8.txt EXHIBIT 23.1 EXHIBIT 23.1 ------------ PricewaterhouseCoopers LLP hereby consents to the incorporation by reference in the Registration Statement on Form S-8 of our Report of Independent Auditors and our Comments by Auditors for U.S. Readers on Canada-U.S. Reporting Differences dated September 26, 2003 relating to the consolidated financial statements which appear in the Form 20-F of EXFO Electro-Optical Engineering Inc. dated January 9, 2004. /s/ PRICEWATERHOUSE COOPERS LLP PRICEWATERHOUSE COOPERS LLP Dated June 21, 2004 -----END PRIVACY-ENHANCED MESSAGE-----