As filed with the Securities and Exchange Commission on April 12, 2005December 21, 2012
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
FARO TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction of incorporation or organization) | ( Identification | ||
250 Technology Park
Lake Mary, Florida 32746
(407) 333-9911
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Keith S. Bair
Senior Vice President and Chief Financial Officer
FARO Technologies, Inc.
250 Technology Park
Lake Mary, Florida 32746
(407) 333-9911
(Name, address, including zip code, and telephone number, including area code, of agent for service)
The Commission is requested to send copies of all communications to:
David C. Lowance, Jr., Esq.
Alston & Bird LLP
One Atlantic Center
1202 West Peachtree Street
Atlanta, Georgia 30309
(404) 881-7000
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement, as determined by the selling shareholders.registration statement.
If the only securities being registered on this Formform are being offered pursuant to dividend or interest reinvestment plans, please check the following box.o¨
If any of the securities being registered on this Formform are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box.x
If this Formform is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.o¨
If this Formform is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.o¨
If delivery ofthis form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the prospectus is expected to be madeCommission pursuant to Rule 434, please462(e) under the Securities Act, check the following box.¨
oIf this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filerx | Accelerated filer ¨ | |
| Non-accelerated filer ¨ (Do not check if a smaller reporting company) | Smaller reporting company ¨ | |
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to Be Registered | Amount to Be Registered(1) | Proposed Maximum Offering Price Per Share(2) | Proposed Maximum Aggregate Offering Price(2) | Amount of Registration Fee |
Common Stock, par value $.001 per share | 314,736 shares | $24.97 | $7,858,958 | $941.60 |
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| Title of each class of securities to be registered(1) | Amount to be registered(1) | Proposed maximum offering price per unit(1)(2) | Proposed maximum aggregate offering price(1)(2) | Amount of registration fee(2)(3) | ||||
Common Stock, $0.001 par value per share(4) | ||||||||
Preferred Stock, $0.001 par value per share(4) | ||||||||
Warrants(5) | ||||||||
Units | ||||||||
Total: | $250,000,000 | $34,100 | ||||||
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| (1) | This registration statement registers an indeterminate number or aggregate principal amount of securities of each identified class as may at various times be issued at indeterminate prices, with an aggregate public offering price not to exceed $250,000,000. For each class of security, the |
| (2) | Not specified as to each class of |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule |
| (4) | In addition to any shares of common stock or preferred stock that may be issued directly under this registration statement, there are being registered hereunder an indeterminate number of shares of common stock or preferred stock as may from time to time be issued upon conversion or exchange of preferred stock registered hereunder that provide for conversion or exchange or upon the exercise of warrants registered hereunder. No separate consideration will be received for any shares of common stock or preferred stock so issued upon conversion or exchange of preferred stock. In addition, pursuant to Rule 416 under the Securities Act of 1933, |
| (5) | Warrants to purchase preferred stock or common stock of the |
The Registrantregistrant hereby amends this Registration Statementregistration statement on such date or dates as may be necessary to delay its effective date until the Registrantregistrant shall file a further amendment which specifically states that this Registration Statementregistration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statementthe registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
Prospectus
Subject to Completion – Dated December 21, 2012
PROSPECTUS
$250,000,000
FARO Technologies, Inc.
Common Stock
Preferred Stock
Warrants
Units
FARO Technologies, Inc. (“FARO”) may offer from time to time any combination of up to 314,736 shares ofthe securities described in this prospectus, either individually or in units. We may also offer common stock upon conversion of FARO Technologies, Inc. bypreferred stock or common stock or preferred stock upon exercise of warrants. We may offer these securities in one or more offerings in amounts, at prices, and on terms determined at the shareholders namedtime of the offering.
This prospectus provides a general description of these securities. When we offer securities, we will provide you with a prospectus supplement describing the specific terms of the offering and the securities, including the offering price of the securities. The prospectus supplements may also add, update or change information contained in this prospectus. These shareholders acquired these sharesYou should read this prospectus and any supplements carefully before you invest. This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
We may sell the securities directly from usto investors or through agents or underwriters and dealers we select, on a continuous or delayed basis. See “Plan of Distribution” beginning on page 8 of this prospectus. If we use agents, underwriters or dealers, we will name them and describe their compensation in connection with our acquisition of iQvolution Ag on March 29, 2005.
Our common stock is traded on the Nasdaq NationalGlobal Select Market under the symbol “FARO.”FARO. On April 11, 2005,December 18, 2012, the last reported saleper share closing price of our common stock as reported on the Nasdaq Global Select Market was $24.84$35.10 per share.
Investing in our common stocksecurities involves risks. See “Risk Factors”“Risk Factors” beginning on page 1 for a discussion2 of these risks.this prospectus, in our most recent Annual Report on Form 10-K and in our subsequent Quarterly Reports on Form 10-Q incorporated by reference herein, which may be amended, supplemented or superseded from time to time by other reports we file with the Securities and Exchange Commission in the future and by any applicable prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved the sale of the common stockthese securities or determined that the information inif this prospectus is accurate andtruthful or complete. ItAny representation to the contrary is illegal for any person to tell you otherwise.a criminal offense.
The date of this prospectus is April ___, 2005.
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This prospectus is a part of thea registration statement that we filed with the Securities and Exchange Commission. The selling shareholders namedCommission (“SEC”) using a “shelf” registration process. By using a shelf registration process, we may offer our securities, as described in this prospectus, may from time to time sellin one or more offerings up to a total initial issuance amount of $250,000,000. We may use the shelf registration statement to offer shares of common stock or preferred stock or warrants to purchase any of such securities, describedeither individually, together or in units. Each time we offer securities under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of such offering and such securities. We may also authorize one or more free writing prospectuses to be provided to you, which may contain material information relating to these offerings. The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change information contained in this prospectus or incorporated by reference into this prospectus. YouBefore purchasing any securities, you should carefully read this prospectus, together with the more detailed information regarding our company, our common stock, and our financial statements and notes to those statements that appear elsewhere in thisany prospectus supplement and any applicablerelated free writing prospectus, supplement together with the additional information that we incorporate inincorporated into this prospectus by reference which we describeas described under the heading “Incorporation of Certain Documents By Reference.“Where You Can Find More Information.”
You should rely only on the information contained in, or incorporated by reference in this prospectus, any prospectus supplement, the registration statement and in any accompanyingfree writing prospectus supplement.that we may authorize to be provided to you. We have not authorized anyoneany other person to provide you with different information. If anyone provides you with different or inconsistent information, different from that contained in, or incorporated by reference in, this prospectus. The common stock isyou should not being offeredrely on it. We will not make an offer to sell securities in any jurisdiction where the offer or sale is not permitted. You should not assume that the information appearing in this prospectus, or any prospectus supplement or any related free writing prospectus, as well as information incorporated by reference, is accurate only as of any date other than the date on the front of thesuch document. Our business, financial condition, results of operations and prospects may have changed since that date.
We may not use this prospectus orto sell securities unless it is accompanied by a prospectus supplement as applicable.
Unless the context otherwise requires, references in this prospectus and supportany prospectus supplement to “we,” “us,” “our,” the “Company,” and “FARO” refer to FARO Technologies, Inc. and its subsidiaries.
The Company designs, develops, manufactures, markets and supports portable, software-driven,software driven, 3-D measurement and imaging systems that are used in a broad range of manufacturing, industrial, building construction and industrialforensic applications. Our principal products are the Faro Arm,The Company’s FaroArm®, FARO Scan ArmLaser ScanArm® and FaroFARO Gage articulated measuring devices, the FaroFARO Laser Tracker Vantage, the FARO Focus3D, the FARO 3D Imager AMP, and their companion CAM2® software, which provide for computer-aided design (CAD)-basedComputer-Aided Design, or CAD, based inspection and/or factory-level statistical process control.control and high-density surveying. Together, these products integrate the measurement, and quality inspection, functionand reverse engineering functions with CAD software to improve productivity, enhance product quality and decrease rework and scrap in the manufacturing process. We useThe Company uses the acronym “CAM2” for this process, which stands for computer-aided measurement. As of December 2011, the computer-aided measurement market. Our products bring precision measurement, quality inspection and specification conformance capabilities, integrated with leading CAD software, to the factory floor. We are a pioneer in the development, marketing and manufacturing of 3-D measurement technology in manufacturing and industrial applications. OurCompany’s products have been purchased by approximately 3,80013,000 customers worldwide, ranging from small machine shops to such large manufacturing and industrial companies as Audi, Bell Helicopter, Boeing, British Aerospace, Caterpillar, Daimler Chrysler,Bombadier, Ford, General Electric, General Motors, Honda, Johnson Controls, Komatsu Dresser,America International, Lockheed Martin, Nissan,NASA, Northrup Grumman, Siemens and Volkswagen, among many others.
The Company was founded in 1982 and re-incorporated in Florida in 1992. The Company’s worldwide headquarters are located at 125250 Technology Park, Lake Mary, Florida 32746, and ourits telephone number at that address is (407) 333-9911. OurWe maintain a website addresson the Internet at www.faro.com. The information on or accessible through our Internet website iswww.faro.com. Information on our website does not constituteconsidered part of this prospectus.
FARO, FaroArm, FARO Laser ScanArm, FARO Gage, FARO Laser Tracker and the FARO logo are registered trademarks of FARO Technologies, Inc. Other trademarks and service marks appearing in this prospectus are the property of their respective holders.
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Investing in our securities involves a high degree of risk. Before you invest in our securities, you should be aware thatcarefully consider the occurrence of any of the events described in this Risk Factors section andrisks discussed elsewhere in this prospectus and under the heading “Risk Factors” in any prospectus supplement, as well as the risks discussed in the documents we incorporate by reference herein. The occurrence of these risks or in a supplementother risks not presently known to this prospectusus could have a material adverse effect on our business, financial condition and results of operations. You should carefully consider these risk factorsoperations and you may lose all or part of your investment in the specific risks set forth under the caption “Risk Factors” in any supplement to this prospectus, together with alloffered securities.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the other information includedstatements in this prospectus, the documents incorporated by reference herein and in any prospectus supplement may be deemed forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, which reflect our plans, beliefs, and current views with respect to, among other things, future events and our financial performance. We often identify these forward-looking statements by the use of forward-looking words such as “expect,” “potential,” “continue,” “may,” “will,” “should,” “could,” “would,” “seek,” “intend,” “plan,” “estimate,” “project,” “anticipate” or in a supplementsimilar forward-looking words. Specifically, this prospectus contains, among others, forward-looking statements regarding:
the amount, timing, types and price of any securities offered under this prospectus;
the plan of distribution with respect to any securities offered under this prospectus;
our decision to list on an exchange any preferred stock offered under this prospectus;
the use of proceeds from any offering under this prospectus and the types of investment of any net proceeds pending their use; and
our decision to pay cash dividends in documents we incorporate by reference before you decide to purchase our securities. You can obtain the informationfuture.
The forward-looking statements included herein, in any prospectus supplements and in the documents incorporated by reference, into this prospectus without chargeas well as any expectations based on such forward-looking statements, are subject to risks and uncertainties and other important factors that could cause actual results to differ materially from the results contemplated by following the instructionsforward-looking statements, including:
economic downturn in the “Where You Can Find More Information” sectionmanufacturing industry or the domestic and international economies in the regions of this prospectus.the world where the Company operates;
the Company’s inability to further penetrate the potential market of a specific customer, which may delay our ability to generate additional revenue.
development by others of our customers have a decentralized buying process for measurement devices. Thus, we must spend significant time and resources to increase revenues from a specific customer. For example, we may provide products to only one of our customers manufacturing facilities or for a specific product line within a manufacturing facility. We cannot be certain that we will be able to maintain or increase the amount of sales to our existing customers.
the Company’s inability to maintain ourits technological advantage by developing new products and applicationsenhancing its existing products;
the Company’s inability to successfully identify and enhancing our existing products. Developing new products and applications and enhancing our existing products can be complex and time-consuming and will require substantial investment by us. Significant delays in new product releasesacquire target companies or difficulties in developing new products could adversely affect our revenues and results of operations. Because our customersachieve expected benefits from acquisitions that are concentrated in a few industries, a reduction in sales to any one of these industries could cause a significant decline in our revenues.consummated;
the automotive, aerospace and heavy equipment industries. We are dependent upon the continued growth, viability and financial stability of our customers in these industries, which are highly cyclical and dependent upon the general health of the economy and consumer spending. The cyclical nature of thesethe industries may exert significant influence on our revenues and results of operations. In addition, the volume of orders from ourCompany’s customers and material adverse changes in its customers access to liquidity and capital;
the prices of our products may be adversely impacted by decreases in capital spending by a significant portion of our customers during recessionary periods. In addition, we generate significant accounts receivable in connection with providing products and services to our customers. If one or more of our significant customers were to become insolvent or otherwise were unable to paymarket potential for the products provided by us, our operating resultscomputer-aided measurement (“CAM2”) market and financial condition would be adversely affected.
the CAM2 market does not continue to expand or does not expand at least as quickly as we anticipate, we will not be able to continue our sales growth, which will affect our profitability.
fluctuations in the United States and other countries. We also rely upon trade secrets, technical know-how and continuing inventions to maintain our competitive position. We seek to protect our technology and trade secrets, in part, by confidentiality agreements with our employees and contractors. Our employees may breach these agreements or our trade secrets may otherwise become known or be independently discovered by inventors. If we are unable to obtain or maintain protection of our patents, trade secrets and other proprietary rights, we may not be able to prevent third parties from using our proprietary rights.
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(xiv) start-up costs |
| States, (xv) fluctuations in revenue without proportionate adjustments in fixed |
| costs, (xvi) the efficiencies achieved in managing inventories and fixed |
| assets, (xvii) investments in potential acquisitions or strategic sales, product or other initiatives, (xviii) shrinkage or other inventory losses due to product obsolescence, scrap or material price changes, (xix) adverse changes in the manufacturing industry and general economic |
changes in gross margins due to changing mix of these factors could adversely affect our annualproducts sold and quarterly operating results in the future.different gross margins on different products;
the Company’s inability to successfully maintain the requirements of Restriction of use of Hazardous Substances (“RoHS”) and our growth depends on Waste Electrical and Electronic Equipment (“WEEE”) compliance into its products;
the abilityinability of ourthe Company’s products to attain broad market acceptance.
the impact of ourcompetitive products requires significant effort to convince manufacturers to reevaluate their historical measurement procedures and methodologies.
the effects of these productsincreased competition as a result of recent consolidation in the CAM2 market;
risks associated with expanding international operations, such as fluctuations in currency exchange rates, difficulties in staffing and softwaremanaging foreign operations, political and we plan to continue our business strategyeconomic instability, compliance with import and export regulations, and the burdens and potential exposure of focusing on complying with a wide variety of U.S. and foreign laws and labor practices;
the portable software-driven, 3-D measurement and inspection market. Consequently, our financial performance will dependloss of the Company’s Chief Executive Officer or other key personnel;
difficulties in large part on portable, computer-based measurement and inspection products achieving broad market acceptance. If our products cannot attain broad market acceptance, we will not grow as anticipated and may be required to make increased
the failure to effectively manage the effects of portable measurement systems and traditional measurement devices, many of which have more resources than us and may develop products or technologies that will directly compete with us.
variations in the broad market for measurement devices for manufacturing and industrial applications, which, in addition to portable articulated arms and laser tracker products, consists of fixed-base CMMs, check fixtures, and handheld measurement tools. The broad market for measurement devices is highly competitive. In the Faro Gage product line, manufacturers of handheld measurement tools and fixed-base CMMs include a significant number of well-established companies that are substantially larger and possess substantially greater financial, technical and marketing resources than we possess. In the Faro Arm product line, we compete with Hexagon Metrology, a division of Hexagon. Hexagon is significantly larger than us. In the Faro Laser Tracker product line, we compete primarily with Leica Geosystems, a division of Leica. Leica is significantly larger than us. We will be required to make continued investments in technology and product development to maintain our technological advantage over our competition. We cannot assure you that we will have sufficient resources to make additional investments in technology and product development or that our product development efforts will allow us to successfully compete as the industry evolves.
the loss of the world, including the United States, Asia and Europe could be significantly impaired and our results of operations would suffer. In our experience, entry into new international markets requires considerable management time as well as start-up expenses for market development, hiring and establishing office facilities before any significant revenues are generated. As a result, initial operations in a new market may operate at low margins or may be unprofitable. Our international operations may be subject to a number of risks including:
as well as other risks and uncertainties identified under the manufacture of components of our potential products, we may experience delays or interruptionsheading “Risk Factors” in this prospectus, in our operations,most recent Annual Report on Form 10-K, and in our subsequent Quarterly Reports on Form 10-Q incorporated by reference herein, which would adversely affect our results of operations and financial condition.
You should not place undue reliance on theseany forward-looking statements. We do not intendstatement. The forward-looking statements in this prospectus, any prospectus supplements and the documents incorporated by reference speak only as of the date of such document. Except as otherwise required by applicable law, we undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events, or otherwise.
We may offer shares of common stock and preferred stock or warrants to purchase any of such securities, either individually or in units, from time to time under this prospectus at prices and on terms to be determined by market conditions at the time of any offering. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that could cause a material difference inwill describe the actual results from those contemplated in such forward-looking statements include among others those under “Risk Factors”specific amounts, prices and other important terms of the securities, including, to the extent applicable:
designation or classification;
aggregate offering price;
rates and times of payment of interest or dividends, if any;
redemption, conversion, exercise, or exchange terms, if any;
ranking;
restrictive covenants, if any;
voting or other rights, if any;
conversion prices, if any; and
important U.S. federal income tax considerations.
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The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add or update information contained in this prospectus or in anydocuments we have incorporated by reference. However, no prospectus supplement to thisor free writing prospectus together with all of the other information includedwill offer a security that is not registered and described in this prospectus or in a supplement toat the time of the effectiveness of the registration statement of which this prospectus is a part.
We may sell the securities directly to investors or to or through agents, underwriters or dealers. We, and in documentsour agents or underwriters, reserve the right to accept or reject all or part of any proposed purchase of securities. If we incorporate by reference. You can obtain the information incorporated by reference into this prospectus without charge by following the instructionsdo offer securities to or through agents or underwriters, we will include in the “Where You Can Find More Information” sectionapplicable prospectus supplement:
the names of this prospectus.those agents or underwriters;
applicable fees, discounts and commissions to be paid to them;
details regarding over-allotment options, if any; and
the net proceeds to us.
Unless otherwise specified in any prospectus supplement, we intend to use the net proceeds from the sale of the common stocksecurities offered by this prospectus. prospectus and any prospectus supplement for one or more of the following:
repayment or refinancing of any then outstanding debt;
acquisition of additional businesses or technologies; and
working capital and general corporate purposes.
We will not receive anydescribe the specific use of the proceeds from the sale of securities in the applicable prospectus supplement. We will have significant discretion in the use of any net proceeds, and investors will rely on the judgment of our management regarding the application of the proceeds of any sale of the securities. Pending such uses, we anticipate that we will invest the net proceeds in short-term, investment-grade securities.
RATIO OF COMBINED FIXED CHARGES AND PREFERENCE DIVIDENDS TO EARNINGS
If we offer preferred stock pursuant to this registration statement, we will provide a ratio of earnings to fixed charges and/or ratio of combined fixed charges and preference dividends to earnings in the applicable prospectus supplement for such offering.
The following summary of the terms of our common stock offeredmay not be complete and is subject to, and qualified in its entirety by reference to, the selling shareholders underterms and provisions of our articles of incorporation and our bylaws. You should refer to, and read this prospectus, but we have agreedsummary together with, our articles of incorporation and bylaws to pay the expenses of preparing this prospectus and the related registration statement.
Under our articles of incorporation, we are authorized to issue a total of 50,000,000 shares of common stock, par value $0.001 per share and 10,000,000 shares of preferred stock, par value $0.001 per share. As of December 18, 2012 we had issued and outstanding 16,973,644 shares of common stock held by approximately 56 holders of record and no shares of preferred stock issued and outstanding. All outstanding shares of our common stock are fully paid and nonassessable. Our common stock is listed on the Nasdaq Global Select Market under the symbol FARO.
Dividends
Subject to preferences that might be applicable to any then outstanding preferred stock, holders of our common stock are entitled to participate equally in dividends when our Board of Directors declares dividends on our common stock out of legally available funds. We have never declared or paid any cash dividends on our common stock and do not anticipate paying any such cash dividends in the foreseeable future. Future dividends, if any, will be determined by our Board of Directors and will be based on our earnings, capital requirements and operating and financial condition, among other factors, at the time any such dividends are considered by our Board of Directors.
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Voting Rights
The holders of our common stock are entitled to one vote for each share of common stock held; our articles of incorporation do not provide for cumulative voting. Directors are elected by a plurality of votes cast by shares entitled to vote in the election of directors. On all other matters, unless a greater number of affirmative votes is required, an action is approved by a majority of votes cast at the meeting.
Liquidation and Dissolution
In the event of our liquidation, dissolution, or winding up, voluntarily or involuntarily, holders of our common stock will have the right to a ratable portion of the assets remaining after satisfaction in full of the prior rights of our creditors and of all liabilities, subject to prior distribution rights of any preferred stock then outstanding.
Other
Holders of our common stock are not entitled to any preemptive or preferential right to purchase or subscribe for shares of capital stock of any class and have no conversion, redemption or sinking fund rights.
Certain Statutory and Other Provisions
Statutory Provisions. The Company is subject to several anti-takeover provisions under Florida law that apply to public corporations organized under Florida law unless the corporation has elected to opt out of those provisions in its articles of incorporation or (depending on the provision in question) its bylaws. The Company has not elected to opt out of these provisions. The Florida Business Corporation Act, which we refer to as the FBCA, prohibits the voting of shares in a publicly held Florida corporation that are acquired in a “control share acquisition” unless the Board of Directors approves the control share acquisition or the holders of a majority of the corporation’s voting shares (exclusive of shares held by officers of the corporation, inside directors or the acquiring party) approve the granting of voting rights as to the selling shareholdersshares acquired in connection with ourthe control share acquisition. A “control share acquisition” is defined as an acquisition that immediately thereafter entitles the acquiring party to, directly or indirectly, exercise voting power in the election of iQvolution AG. That issuance was exempt from the registration requirementsdirectors within any of the Securities Actfollowing ranges: (i) one-fifth or more but less than one-third of 1933, as amended. We are registering these shares to permitsuch voting power, (ii) one-third or more but less than a majority of such voting power and (iii) a majority or more of such voting power. This statutory voting restriction is not applicable in certain circumstances set forth in the sellingFBCA.
The FBCA also contains an “affiliated transaction” provision that prohibits a publicly-held Florida corporation from engaging in a broad range of business combinations or other extraordinary corporate transactions with an “interested shareholder” unless (i) the transaction is approved by a majority of disinterested directors, (ii) the Company has not had more than 300 shareholders to offer and sell these shares for resale from time to time. The selling shareholders may sell all, some, or none of the shares covered by this prospectus. All information with respect to beneficial ownership has been furnished to us by the respective selling shareholders. For more information, see “Plan of Distribution.” None of the selling shareholders has had any material relationship with us withinrecord during the past three years, (iii) the interested shareholder has owned at least 80% of the Company’s outstanding voting shares for at least five years, (iv) the interested shareholder is the beneficial owner of at least 90% of the voting shares (excluding shares acquired directly from the Company in a transaction not approved by a majority of the disinterested directors), (v) consideration is paid to the holders of the Company’s shares equal to the highest amount per share paid by the interested shareholder for the acquisition of Company shares in the last two years or fair market value and certain other conditions are met or (vi) the transaction is approved by the holders of two-thirds of the Company’s voting shares other than (i)those owned by the interested shareholder. An interested shareholder is defined as a resultperson who, together with affiliates and associates, beneficially owns (as defined in Section 607.0901(1) (e) of the ownershipFBCA) more than 10% of these sharesthe Company’s outstanding voting shares.
, (ii)Classified Board of Directors. The Company’s articles of incorporation and bylaws provide that the Board of Directors of the Company will be divided into three classes, with staggered terms of three years for each selling shareholder otherclass. The term of one class expires each year. The Company’s bylaws provide that any vacancies on the Board of Directors will be filled only by the affirmative vote of a majority of the directors then in office, even if less than cubixx GmbHa quorum. The articles of incorporation and Dr. Wilfried Sihn has been employed by onebylaws of the Company also provide that any director may be removed from office, but only for cause and only upon the affirmative vote of the holders of at least two-thirds of our subsidiaries since our acquisitioncommon stock.
Special Voting Requirements. The Company’s articles of iQuolution AG, and (iii) eachincorporation provide that all actions taken by the shareholders must be taken at an annual or special meeting of the shareholders or by written consent of cubixx GmbH has been employedthe holders of not less than two-thirds of the Company’s outstanding voting shares. The articles of incorporation provide that special meetings of the shareholders may be called only by onethe President, the Chairman of our subsidiaries since our acquisition the Board, a majority
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of iQuolution AG.
Selling Shareholder | Shares Owned PriorTo This Offering | Shares Being OfferedHereby | Shares Owned After Offering(1) | |
Number | Percentage(2) | |||
| cubixx GmbH | 297,432 | 297,432 | 0 | 0 |
| Jurgen Gittinger | 1,573 | 1,573 | 0 | 0 |
| Dr. Martin Ossig | 1,573 | 1,573 | 0 | 0 |
| Regis Derimay | 1,573 | 1,573 | 0 | 0 |
| Steffen Gehring | 1,573 | 1,573 | 0 | 0 |
| Rainer Simon | 3,147 | 3,147 | 0 | 0 |
| Dr. Hansjorg Volz | 1,573 | 1,573 | 0 | 0 |
| Bernard Broutechoux | 1,573 | 1,573 | 0 | 0 |
| Rick Ruitermann | 1,573 | 1,573 | 0 | 0 |
| Dr. Wilfried Sihn | 1,573 | 1,573 | 0 | 0 |
| Advanced Technical Solutions | 1,573 | 1,573 | 0 | 0 |
Transfer Agent
We may resellissue warrants for the purchase of our common stock or redistribute the shares being offered by this prospectus from time to timepreferred stock in one or more transactions onseries. We may issue warrants independently or together with our common stock or preferred stock. While the Nasdaq National Market or otherwise, at fixed prices thatterms summarized below will apply generally to any warrants we may be changed, at market prices prevailing atoffer, we will describe the time of sale, at prices related to prevailing market prices or at negotiated prices. Selling shareholders may sell the shares by one or more of the following methods, without limitation:
We will issue each series of business and they have notwarrants under a separate warrant agreement to be entered into any agreements, understandingsbetween us and the warrant holders or arrangements with any underwriters or broker-dealers regardinga warrant agent identified in the sale of their shares of common stock, nor is there an underwriter or coordinating broker actingapplicable prospectus supplement. The warrant agent will act solely as our agent in connection with the series of warrants and will not assume any obligation or relationship of agency or trust for or with any holders of the warrants. We will file as an exhibit to the registration statement of which this prospectus forms a proposed salepart, or incorporate by reference from reports that we file with the SEC, the form of warrant agreement, including the form of warrant certificate, that describes the particular terms of the series of warrants we are offering before we issue such series, and the following summary is qualified in its entirety by reference to such exhibit. You should read the following summary, the applicable prospectus supplement and any related free writing prospectuses, together with the complete applicable warrant agreement and warrant certificate.
General
The applicable prospectus supplement will describe the terms of the series of warrants, including:
the offering price and aggregate number of warrants offered;
the currency for which the warrants may be purchased;
if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security;
if applicable, the date on and after which the warrants and the related securities will be separately transferable;
in the case of warrants to purchase our common stock or preferred stock, the number of shares of common stock byor preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
the effect of any selling shareholder. If we are notified by merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
the terms of our rights to redeem or sell the warrants;
any selling shareholder thatprovisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
the dates on which the right to exercise the warrants will commence and expire;
the manner in which the warrant agreements and warrants may be modified;
a discussion of any material arrangement has been entered into with a broker-dealer forU.S. federal income tax consequences of holding or exercising the sale of shares of common stock, if required, we will file a supplement to this prospectus.warrants;
the securities. These brokers, dealers, or underwriters may act as principals, or as an agent of a selling shareholder. Broker-dealers may agree with a selling shareholder to sell a specified numberterms of the securities issuable upon exercise of the warrants; and
any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Exercise
Each warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at a stipulatedan exercise price per security. Ifset forth in the broker-dealer is unableapplicable prospectus supplement. Holders of the warrants may exercise the warrants at any time up to sell securities actingthe specified time on the expiration date set forth in the applicable prospectus supplement. After such time on the expiration date, unexercised warrants will become void.
Holders may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised, together with specified information, and paying the required amount to the warrant agent in immediately available funds, as agent for a selling shareholder, it may purchase as principal any unsold securitiesprovided in the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver to the warrant agent.
Upon receipt of the required payment and the warrant certificate properly completed and duly executed at the stipulated price. Broker-dealers who acquirecorporate trust office of the shares as principals may thereafter resellwarrant agent or any other office indicated in the shares from time to time in transactions in any stock exchange or automated interdealer quotation system on whichapplicable prospectus supplement, we will issue and deliver the securities are then listed, at prices and on terms then prevailing at the time of sale, at prices related to the then-current market price or in negotiated transactions. Broker-dealers may use block transactions and sales to and through broker-dealers, including transactionspurchasable upon such exercise. If fewer than all of the nature described above. The selling shareholders may also sellwarrants represented by the securities in accordance with Rule 144 underwarrant certificate are exercised, then we will issue a new warrant certificate for the Securities Act rather than pursuant to this prospectus, regardlessremaining amount of whether the securities are covered by this prospectus.
Governing Law
Unless we provide otherwise in the sale or distribution ofapplicable prospectus supplement, the shareswarrants and warrant agreements will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended,governed by and the related rules and regulations adopted by the SEC, including Regulation M. This regulation may limit the timing of purchases and sales of any of the shares by the selling shareholders and any other person. The anti-manipulation rules under the Exchange Act may apply to sales of shares in the market and to the activities of the selling shareholders and their affiliates. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of the shares to engage in market-making activities with respect to the particular shares being distributed for a period of up to five business days before the distribution. These restrictions may affect the marketability of the shares and the ability of any person or entity to engage in market-making activities with respect to the shares.
We may be indemnified by a selling shareholder against civil liabilities, including liabilities underissue, in one more series, units consisting of our common stock, preferred stock and warrants in any combination. We may issue units in such amounts and in such numerous distinct series as we determine. While the Securities Act,terms we have summarized below will apply generally to any units that may arise from any written information furnished to us by the selling shareholder specifically for use in this prospectus, in accordance with the registration rights agreement, or we may be entitled to contribution. The selling shareholders may agree to indemnify any brokers, dealers, or agents who participate in transactions involving sales of the shares against specified liabilities arising under the federal securities laws in connection with the offering and sale of the shares.
We will issue each series of units under a separate unit agreement to be entered into between us and the selling shareholders pursuantunit holders or a unit agent identified in the applicable prospectus supplement. The unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to an exemption frominitiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the registration requirementsconsent of the Securities Act. related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
We agreedwill file as an exhibit to register the shares under the Securities Act and to keep the registration statement of which this prospectus is a part, effective untilor incorporate by reference from reports that we file with the earlierSEC, the form of (a)unit agreement that describes the dateterms of the series of units we are offering, and any supplemental agreements, before we issue such series, and the following summary is qualified in its entirety by reference to such exhibit. The following summaries of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable to a particular series of units. You should read the following summary, the applicable prospectus supplement and any related free writing prospectuses, together with the complete applicable unit agreement and any supplemental agreements containing the terms of the units.
General
Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Accordingly, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
The applicable prospectus supplement will describe the terms of the series of units being offered, including:
the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
any provisions of the governing unit agreement that differ from those described below; and
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
The provisions described in this section, as well as those described under “Description of Capital Stock” and “Description of Warrants” will apply to each unit and to any common stock, preferred stock or warrant included in each unit, respectively.
Title
We, and any unit agent and any of their agents, may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary.
We may sell the securities offered by this prospectus from time to time in any one or more of the following ways:
directly to one or more purchasers;
directly to or through brokers or dealers;
to the public through underwriting syndicates;
to one or more underwriters for resale to purchasers or to the public; or
directly to or through agents.
Each time that we use this prospectus to offer securities, we will also provide a prospectus supplement that contains the specific terms of the offering and the method of distribution, including:
the name or names of any underwriters, dealers or agents;
the amounts of the securities underwritten or purchased by each of them and any over-allotment options under which the underwriters may purchase additional securities from us;
the purchase price of the securities and the proceeds to us from the sale;
any public offering price;
any underwriting discounts or other items constituting compensation to underwriters, dealers or agents;
any discounts, commissions or concessions allowed or reallowed or paid to dealers; and
any securities exchange or market on which all the sharessecurities may be listed.
The distribution of common stockthe securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, at varying prices determined at the time of sale, or at negotiated prices.
Only those underwriters identified in the applicable prospectus supplement are deemed to be underwriters in connection with the securities offered in the prospectus supplement. If underwriters are used in the sale of any securities, the underwriters will acquire the securities for their own account and may resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or directly through underwriters without a syndicate. The underwriters’ obligations to purchase any securities will be subject to this registration statement have been sold under this registration statementcertain conditions set forth in the applicable underwriting agreement. However, if they purchase any of the securities, the underwriters will generally be obligated to purchase all of the securities, other than the securities covered by any over-allotment option.
We may sell the securities through agents from time to time. The prospectus supplement will name any agent involved in the offer or sale of the securities, as well as any commissions we pay the agents. Generally, any agent will be acting on a best efforts basis for the period of its appointment.
We may authorize underwriters, dealers or agents to solicit offers by certain purchasers to purchase the securities from us at the public offering price set forth in the prospectus supplement pursuant to Rule 144delayed delivery contracts providing for payment and delivery on a specified date in the future. The contracts will be subject only to
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those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions we pay for solicitation of these contracts.
Agents and underwriters may be entitled to indemnification by us against certain civil liabilities, including liabilities under the Securities Act of 1933, as amended, or to contribution with respect to payments which the agents or underwriters may be required to make in respect thereof. Agents and underwriters may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
Unless otherwise or (b)specified in the date on which all therelated prospectus supplement, each series of securities will be a new issue with no established trading market, other than shares of our common stock, subject to this registration statementwhich are eligible to belisted on the NASDAQ Global Select Market. Any common stock sold pursuant to Rule 144(k)a prospectus supplement will be listed on NASDAQ, subject to official notice of issuance. We may elect to list preferred stock on an exchange, but we are not obligated to do so. It is possible that one or more underwriters may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We can offer no assurance as to the liquidity of, or the trading market for, any offered securities.
In connection with an offering, the underwriters may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of securities than they are required to purchase in an offering. Stabilizing transactions consist of bids or purchases made for the purpose of preventing or retarding a decline in the market price of the Securities Act. We have agreedsecurities while an offering is in progress. The underwriters also may impose a penalty bid. This occurs when a particular underwriter repays to pay all expenses in connection with this offering, but not including underwriting discounts, concessions, commissions, or fees (legal or otherwise)the underwriters a portion of the selling shareholders.
In compliance with the guidelines of the Financial Industry Regulatory Authority, Inc., or FINRA, the maximum discount or commission to be received by any portionFINRA member or independent broker-dealer may not exceed 8% of the aggregate offering price of the shares offered under this prospectus.
The consolidated financial statements of FARO Technologies, Inc. appearingas of December 31, 2011 and 2010 and for each of the years in FARO Technologies, Inc.’sthe three-year period ended December 31, 2011, and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2011, all of which appear in FARO’s Annual Report on Form 10-K for the year ended December 31, 20042011, have been auditedincorporated by reference in this prospectus and elsewhere in the registration statement in reliance upon the reports of Grant Thornton LLP, independent registered public accountants, as set forth in their report thereon included therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in relianceaccounting firm, upon such report given on the authority of suchsaid firm as experts in accounting and auditing.
Certain legal matters with respect to the sharesvalidity of the securities offered by this prospectus. This prospectus does not contain all the information set forthwill be passed upon for FARO by Alston & Bird LLP in Atlanta, Georgia. If legal matters in connection with offerings made pursuant to this prospectus are passed upon by counsel to any underwriters, dealers or agents, such counsel will be named in the registration statement because certain information has been incorporated into the registration statement by reference in accordance with the rules and regulations of the Securities and Exchange Commission. Please review the documents incorporated by reference for a more complete description of the matters to which such documents relate. The registration statement may be inspected at the public reference facilities maintained by the Securities and Exchange Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and is available to you on the Securities and Exchange Commission’s web site.
The Securities and Exchange CommissionSEC allows us to incorporate“incorporate by referencereference” into this prospectus the information we file with the Securities and Exchange Commission, whichSEC. This means that we can disclose important information to you by referring you to those documents. documents without restating that information in this document. The information incorporated by reference into this prospectus is considered to be part of this prospectus, and information we file with the SEC after the date of this prospectus will automatically update and supersede the information contained in this prospectus and in the documents listed below. We
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incorporate by reference into this prospectus the documents listed below and any future filings made by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including reports filed after the date of the initial filing of the registration statement and prior to the effectiveness of the registration statement, until we file a post-effective amendment to the registration statement that indicates that all securities offered have been sold or that deregisters all securities that remain unsold:
| (a) | The Company’s Annual Report on Form 10-K for the year ended December 31, 2011, filed with the SEC on February 28, 2012, as amended by 10-K/As filed on March 28, 2012 and August 24, 2012; |
| (b) | The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2012, filed with the SEC on May 1, 2012; |
| (c) | The Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2012, filed with the SEC on July 31, 2012; |
| (d) | The Company’s Quarterly Report on Form 10-Q for the quarter ended September 29, 2012, filed with the SEC on October 31, 2012; |
| (e) | The Company’s Current Reports on Form 8-K, filed with the SEC on February 28, 2012, March 19, 2012, May 21, 2012, June 22, 2012, October 16, 2012 and November 7, 2012; and |
| (f) | The description of our common stock contained in the Company’s Registration Statement on Form 8-A filed under Section 12 of the Exchange Act on September 15, 1997, including all amendments or reports filed for the purpose of updating such description. |
The information incorporated by reference is considered to be part of this prospectus, and information that we file later with the Securities and Exchange CommissionSEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made by us with the Securities and Exchange Commission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until the sale of all of the shares of common stock that are part of this offering. The documents we are incorporating by reference areinformation, as follows:
This prospectus is a part of our Registration Statement on Form S-3 filed with the SEC. This prospectus does not contain all of the information set forth in the registration statement and the exhibits to the registration statement. Statements about the contents of agreements or other documents contained in this prospectus or in any other filing to which we refer you are not necessarily complete. You should review the actual copy of these documents filed as an exhibit to the registration statement or such other filing. You may requestobtain a copy of these filingsthe registration statement and the exhibits filed with it from the SEC at no cost (other thanany of the locations listed above.
We will provide to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, a copy of any or all of the information that we have incorporated by reference into this prospectus (excluding exhibits to such documents unless such exhibits are specifically incorporated by reference). We will provide this information upon written or oral request at no cost to the requester. You may request this information by writing or telephoning uscontacting our corporate headquarters at the following address and telephone number:
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy, at prescribed rates, any documents we have filed with the SEC at its Public Reference Room located at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. We also file these documents with the SEC electronically. You can access the electronic versions of these filings on the SEC’s Internet website found at http://www.sec.gov. You can also obtain copies of materials we file with the SEC from our Internet website found at www.faro.com. The information on or accessible through our Internet website is not considered part of this prospectus.
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PART II
| ITEM 14. | OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. |
The table below itemizes the expenses payable by the registrant in connection with the registration and Distribution.
| Securities and Exchange Commission filing fee | $ | 941.60 | ||
| Nasdaq National Market listing fee | $ | 315.00 | ||
| Accounting fees and expenses | $ | 6,000.00 | ||
| Legal fees and expenses | $ | 15,000.00 | ||
| Miscellaneous | $ | 2,743.40 | ||
| Total expenses | $ | 25,000.00 |
SEC Registration Fee | $ | 34,100 | ||
Legal Fees and Expenses | $ | * | ||
Accounting Fees and Expenses | $ | * | ||
Nasdaq Fees | $ | * | ||
Transfer Agent’s Fees and Expenses | $ | * | ||
Printing and Duplicating Expenses | $ | * | ||
Miscellaneous Expenses | $ | * | ||
Total | $ | * | ||
| * | To be filed by amendment, Form 8-K or Rule 424 filing. |
| ITEM 15. | INDEMNIFICATION OF DIRECTORS AND OFFICERS. |
The Company is a Florida corporation. Section 607.0850 of Directors and Officers.
The Company’s articles of incorporation and bylaws provide that the Company shall indemnify directors and executive officers to the fullest extent now or hereafter permitted by the Florida Act. In addition,FBCA. The Company’s articles of incorporation and bylaws further state that the Company may enter into Indemnification Agreements with its directors and executive officers in which the Registrant has agreed to indemnify such persons to the fullest extent now or hereafter permitted by the Florida Act. The indemnification provided byunder the Florida Actarticles of incorporation and the Company's Bylawsbylaws is not exclusive of any other rights to which a director or officer may be otherwise entitled. The Company has also purchased insurance with respect to, among other things, liabilities that may arise under the statutory provisions referred to above.
The general effect of the foregoing provisions may be to reduce the circumstances in which an officer or director may be required to bear the economic burden of the foregoing liabilities and expense. The Company may obtain a liability insurance policy for its directors and officers as permitted by the Florida Act which may extend to, among other things, liability arising under the Securities Act.
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| ITEM 16. | EXHIBITS. |
Exhibit | Description | |
| 1.1 | ||
| 4.1 | Specimen Certificate for Registrant’s Common Stock (filed as Exhibit 4.1 to the Company’s Registration Statement on Form S-1, No. 333-32983, and incorporated herein by reference) | |
| 4.2 | Amended and Restated Articles of Incorporation (filed as Exhibit 3.1 to the Company’s Registration Statement on Form S-1, No. 333-32983, and incorporated herein by reference) | |
| 4.3 | Amended and Restated Bylaws (Filed as Exhibit 3.1 to Registrant’s Current Report on Form 8-K, dated February 3, 2010, and incorporated herein by reference) | |
| 4.4 | Form of Specimen Preferred Stock Certificate* | |
| 4.5 | Form of Preferred Stock Certificate of Designation* | |
| 4.6 | Form of Warrant Agreement (together with form of Warrant Certificate)* | |
| 4.7 | Form of Unit Agreement* | |
| 5.1 | Opinion of Alston & Bird LLP | |
| 12.1 | Statement of Computation of Ratio of Combined Fixed Charges and Preference Dividends to Earnings* | |
| 23.1 | Consent of Grant Thornton LLP | |
| 24.1 | Power of Attorney (included on the signature page to this Registration | |
| * | To be filed by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of our securities. |
| ITEM 17. | UNDERTAKINGS. |
A. Rule 415 Offering
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 |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the |
II-2 (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 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. (5) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(6) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
B. Filings Incorporating Subsequent Exchange Act Documents By Reference 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 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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 initialbona fide offering thereof. II-3 H. Request for Acceleration of Effective Date or Filing of Registration Statement Becoming Effective Upon Filing 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 Securities Act of 1933 and will be governed by the final adjudication of such issue. I. Registration Statement Permitted by Rule 430A Under the Securities Act of 1933 The undersigned registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(l) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the
POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS,that each person whose signature appears below constitutes and appoints Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
EXHIBIT INDEX
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