-----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, PBE00scZ1025bIosE+ChWzVbrtXTgD6GVaAAVk3TwmwaMj0WvVInUUCuig5wBb1g XuXSOQOog93Lre7woYeqVw== 0000893877-99-000766.txt : 19991214 0000893877-99-000766.hdr.sgml : 19991214 ACCESSION NUMBER: 0000893877-99-000766 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19991213 EFFECTIVENESS DATE: 19991213 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FEI CO CENTRAL INDEX KEY: 0000914329 STANDARD INDUSTRIAL CLASSIFICATION: SPECIAL INDUSTRY MACHINERY, NEC [3559] IRS NUMBER: 930621989 STATE OF INCORPORATION: OR FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-92629 FILM NUMBER: 99773524 BUSINESS ADDRESS: STREET 1: 7451 NE EVERGREEN PWY CITY: HILLSBORO STATE: OR ZIP: 97124-5830 BUSINESS PHONE: 5036901500 MAIL ADDRESS: STREET 1: 7451 NE EVERGREEN PARKWAY CITY: HILLSBORO STATE: OR ZIP: 97124 S-8 1 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on December 13, 1999 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 P. Mooney 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: Carolyn M. Vogt Stoel Rives LLP 900 SW Fifth Avenue, Suite 2300 Portland, Oregon 97204-1268
CALCULATION OF REGISTRATION FEE - --------------------------------------------------------------------------------------------------------------------- Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of to Be Registered Registered Price Per Share(1) Offering Price (1) Registration Fee - ------------------- -------------- ------------------------- -------------------------- ---------------- Common Stock 700,000 Shares $9.00 $6,300,000 $1,663.20 - --------------------------------------------------------------------------------------------------------------------- (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 700,000 shares is based on $9.00, which was the average of the high and low prices of the Common Stock on December 6, 1999 as reported in The Wall Street Journal for Nasdaq National Market issues.
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 Business Corporation Act II-1 (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 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. II-3 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 (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 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 a new II-4 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 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 December 9, 1999. FEI COMPANY By VAHE' A. SARKISSIAN -------------------------------------- Vahe' A. Sarkissian, President KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Vahe' A. Sarkissian and William P. Mooney, 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 December 9, 1999. Signature Title --------- ----- LYNWOOD W. SWANSON - ---------------------------------- Chairman of the Board Lynwood W. Swanson VAHE' A. SARKISSIAN - ---------------------------------- President and Chief Executive Officer Vahe' A. Sarkissian (Principal Executive Officer) NICHOLAS P. ECONOMOU - ---------------------------------- Chief Operating Officer and Director Nicholas P. Economou II-6 WILLIAM P. MOONEY - ---------------------------------- Executive Vice President and Chief William P. Mooney Financial Officer (Principal Financial Officer) MARK V. ALLRED - ---------------------------------- Controller and Assistant Treasurer Mark V. Allred (Principal Accounting Officer) KAREL D. VAN DER MAST - ---------------------------------- Executive Vice President, Marketing, Karel D. van der Mast Chief Technical Officer and Director MICHAEL J. ATTARDO - ---------------------------------- Director Michael J. Attardo ALFRED B. BOK - ---------------------------------- Director Alfred B. Bok WILLIAM E. CURRAN - ---------------------------------- Director William E. Curran WILLIAM W. LATTIN - ---------------------------------- Director William W. Lattin - ---------------------------------- Director Jan C. Lobbezoo DONALD R. VANLUVANEE - ---------------------------------- Director Donald R. VanLuvanee II-7 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 (see page II-6 of the Registration Statement). EX-5.1 2 OPINION OF STOEL RIVES LLP EXHIBIT 5.1 December 9, 1999 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 700,000 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, STOEL RIVES LLP EX-23.1 3 CONSENT OF DELOITTE & TOUCHE LLP EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of FEI Company on Form S-8 of our report dated February 26, 1999, included in the Annual Report on Form 10-K/A of FEI Company for the year ended December 31, 1998. DELOITTE & TOUCHE LLP Portland, Oregon December 9, 1999 EX-23.2 4 CONSENT OF KPMG ACCOUNTANTS N.V. EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT To the FEI Company Board of Directors We consent to the incorporation by reference in this Registration Statement on Form S-8 relating to the FEI Company 1995 Stock Incentive Plan As Amended of our report dated April 9, 1997, with respect to the combined statements of income, comprehensive loss, and cash flows for the year ended December 31, 1996 of Philips Electron Optics Operations, which report appears in the 1998 Annual Report on Form 10-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. KPMG ACCOUNTANTS N.V. Eindhoven, the Netherlands 7 December 1999 -----END PRIVACY-ENHANCED MESSAGE-----