As filed with the Securities and Exchange Commission on August 31, 2004
Registration No. 333-_________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Scan-Optics, Inc.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 06-0851857
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
169 Progress Drive
Manchester, Connecticut 06040
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(Address of Principal Executive Offices) (Zip Code)
Scan-Optics, Inc. 2004 Incentive and Non-Qualified Stock Option Plan
Scan-Optics, Inc. 2002 Incentive and Non-Qualified Stock Option Plan
Scan-Optics, Inc. 1999 Incentive and Non-Qualified Stock Option Plan
Scan-Optics, Inc. Amended and Restated Senior Executive Stock Option Plan
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(Full Title of the Plans)
James C. Mavel
Scan-Optics, Inc.
President and Chief Executive Officer
169 Progress Drive
Manchester, Connecticut 06040
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(Name and Address of Agent For Service)
(860) 645-7878
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(Telephone Number, Including Area Code, of Agent for Service)
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Copy to Andrea M. Teichman, Esq.
Day, Berry & Howard LLP
260 Franklin Street
Boston, Massachusetts 02110
(617) 345-4809
CALCULATION OF REGISTRATION FEE
- ---------------------------- ---------------------- --------------------- ---------------------- ---------------------
Title Of Securities To Be Amount To Be Proposed Maximum Proposed Maximum Amount Of
Registered Registered (1) Offering Price Per Aggregate Registration Fee
Share (2) Offering Price (2)
- ---------------------------- ---------------------- --------------------- ---------------------- ---------------------
2004 Incentive and 2,391,268 shares $0.24(3) $573,904.32(3) $72.71(3)
Non-Qualified Stock
Option Plan
Common Stock,
par value $0.02 per
share
- ---------------------------- ---------------------- --------------------- ---------------------- ---------------------
- ---------------------------- ---------------------- --------------------- ---------------------- ---------------------
2002 Incentive and 500,000 shares $0.28(4) $140,000.00(4) $17.74(4)
Non-Qualified Stock
Option Plan
Common Stock,
par value $0.02 per
share
- ---------------------------- ---------------------- --------------------- ---------------------- ---------------------
1999 Incentive and 500,000 shares $0.990(4) $495,000.00(4) $62.72(4)
Non-Qualified Stock
Option Plan
Common Stock, par
value $0.02 per share
- ---------------------------- ---------------------- --------------------- ---------------------- ---------------------
Amended and Restated 6,470,929 shares $0.24(5) $1,553,023.00(5) $172.15(5)
Senior Executive Stock
Option Plan
Common Stock, par
value $0.02 per share
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(1) If, as a result of stock splits, stock dividends or similar transactions,
the number of securities purported to be registered on this Registration
Statement changes, the provisions of Rule 416 shall apply to this Registration
Statement and this Registration Statement shall be deemed to cover the
additional securities resulting from the split of, or the dividend on, the
securities covered by this Registration Statement.
(2) Estimated pursuant to Rule 457(h) under the Act solely for purposes of
calculating the registration fee.
(3) The Proposed Maximum Aggregate Offering Price and the registration fee are
based upon the average of the high and low prices of the Company's common stock
on August 25, 2004, as reported on the Over-the-Counter Bulletin Board.
(4) Shares under the 2002 and 1999 Plans are issuable upon exercise of
outstanding options with fixed exercise prices under the applicable plan. The
Proposed Maximum Aggregate Offering Price and the fee have been computed upon
the basis of the price at which the options may be exercised under the
applicable plan. With respect to the 2002 Plan, the Proposed Maximum Offering
Price Per Share represents the actual exercise price at which all options under
such plan were issued. With respect to the 1999 Plan, the Proposed Maximum
Offering Price Per Share represents a weighted average of the exercise prices
for such shares.
(5) Of the 6,470,929 shares to be offered and sold under the Amended and
Restated Senior Executive Stock Option Plan (the "Amended and Restated Plan"),
5,355,929 shares are new shares being registered pursuant to this Registration
Statement and 1,115,000 shares were registered under a prior Registration
Statement on Form S-8 (File No. 333-83598) (the "Prior Registration Statement).
The Proposed Maximum Aggregate Offering Price and the registration fee are based
upon the average of the high and low prices of the Company's common stock on
August 25, 2004, as reported on the Over-the-Counter Bulletin Board and, in
accordance with Instruction E to Form S-8, the registration fee of $24.62
previously paid by the Registrant in connection with the Prior Registration
Statement is hereby offset against the registration fee payable hereunder with
respect to the Amended and Restated Plan.
PART I
Information Required in the Section 10(a) Prospectus
Item 1. Plan Information
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This Registration Statement on Form S-8 ("Registration Statement") is
filed for the purpose of registering shares of the common stock, par value $0.02
per share ("Common Stock"), of Scan-Optics, Inc. (the "Company") issued upon the
exercise of options granted or to be granted to the Company's employees,
directors, officers and consultants, in accordance with the applicable plan
terms and conditions, pursuant to the following plans or option agreements of
the Company:
Scan-Optics, Inc. 2004 Incentive and Non-Qualified Stock Option Plan
Scan-Optics, Inc. 2002 Incentive and Non-Qualified Stock Option Plan
Scan-Optics, Inc. 1999 Incentive and Non-Qualified Stock Option Plan
Scan-Optics, Inc. Amended and Restated Senior Executive Stock Option Plan
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. Registration Information and Employee Plan Annual Information
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The documents containing the information in Part I of this S-8 and Part
II, Item 3 will be sent or given to employees as specified by Rule 428(b)(1). In
accordance with the rules and regulations of the Commission and the instructions
to Form S-8, such documents are not being filed with the Commission either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424. The documents containing the information in Part II, Item
3 are available, without charge, upon written or oral request. Requests should
be directed to Scan-Optics, Inc., Attention: Secretary, 169 Progress Drive,
Manchester, CT 06040 (860-645-7878).
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Explanatory Note
This Registration Statement covers, among other things, 6,470,929
shares of Common Stock, $0.02 par value of Scan-Optics, Inc., issuable pursuant
to the Amended and Restated Scan-Optics, Inc. Senior Executive Stock Option
Plan. Of the 6,470,929 shares issuable under the Amended and Restated Senior
Executive Stock Option Plan, a previously filed Registration Statement on Form
S-8 is effective with respect to 1,115,000 shares (the "Prior Registration
Statement") and 5,355,929 new shares are being registered under this
Registration Statement. Pursuant to Instruction E of Form S-8, the contents of
the Company's Prior Registration Statement on Form S-8, File No. 333-83598, as
filed with the Securities and Exchange Commission on March 1, 2002 are
incorporated herein by reference.
Item 3. Incorporation of Documents by Reference
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The following documents previously filed with the Securities and
Exchange Commission (the "Commission") by the Company are incorporated by
reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K, filed with the Commission
on March 30, 2004 and Amendment No. 1 to such report filed with the Commission
on April 29, 2004 (File No. 000-05265).
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2004.
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2004.
(d) The Company's Form 8-K, filed with the Commission on August 6,
2004.
(e) The Company's Form 8-K, filed with the Commission on May 18, 2004.
(f) The Company's Form 8-K, filed with the Commission on March 31,
2004.
(g) The Company's Form 8-K, filed with the Commission on March 2, 2004.
(h) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, registering the shares of Common Stock under
the Securities Exchange Act of 1934 (The "Exchange Act"), and all amendments
thereto.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), prior to the filing of a post-effective amendment which indicates that
all shares of Common Stock offered have been sold, or which deregisters all
shares of Common Stock then remaining unsold, shall be deemed to be incorporated
by reference in this Registration Statement and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities
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This item is not applicable.
Item 5. Interests of Named Experts and Counsel
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Richard D. Harris, who is a partner of Day, Berry & Howard LLP, which
gave the opinion in Exhibit 5 of this Registration Statement, serves as
Secretary of the Company.
Item 6. Indemnification of Directors and Officers
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The Company is incorporated in Delaware and consequently is subject to
the Delaware General Corporation Law ("DGCL"). DGCL provides that the registrant
may indemnify officers and directors who are parties in actual or threatened
lawsuits and other proceedings against reasonable expenses, judgments,
penalties, fines and amounts paid in settlement, except for liability for: (i) a
breach of the duty of loyalty; (ii) acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law; (iii) payment of
an improper dividend or improper repurchase of stock under Section 174 of the
DGCL; or (iv) any transaction from which the director derived an improper
personal benefit.
The Company's Amended and Restated Certificate of Incorporation,
provides, in effect, that the Company shall indemnify its directors and officers
to the maximum extent permitted by the DGCL. The Ninth article of the Amended
and Restated Certificate of Incorporation of the Company provides as follows:
"NINTH:
1. Elimination of Certain Liability of Directors. No director
of the Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.
2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that
he or she, or a person of whom he or she is the legal representative,
is or was a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and
loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that,
except as provided in paragraph (b) hereof, the Corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Section
2(a) shall be a contract right and shall include the right to be paid by
the Corporation the expenses incurred in defending any such proceeding
in advance of its final disposition; provided, however, that the payment
of such expenses incurred by a director, officer, employee or agent in
his or her capacity as a director, officer, employee or agent (and not
in any other capacity in which service was or is rendered by such person
while a director, officer, employee or agent including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such director,
officer, employee or agent to repay all amounts so advanced if it shall
ultimately be determined that such director, officer, employee or agent
is not entitled to be indemnified under this Section 2(a) or otherwise.
(b) Right of Claimant to Bring Suit. If a claim under
subsection (a) of this Section is not paid in full by the Corporation
within thirty days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be
paid also the expense of prosecuting such claim. It shall be a defense
to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking has been tendered to the
Corporation) that the claimant has not met the standards of conduct
which make it permissible under the Delaware General Corporation Law
for the Corporation to indemnify the claimant for the amount claimed,
but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made
a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable
standards of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification
and the payment of expenses incurred in defending a proceeding in
advance of its final disposition conferred in this Section shall not be
exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of
Incorporation, By-law, agreement, vote of stockholders or disinterested
directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent
of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise (including an employee benefit plan) against
any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
3. Effect of Amendment or Repeal. No amendment to or repeal of
this Article NINTH shall apply to or have any effect on the liability
or alleged liability of any director of the Corporation for or with
respect to or arising out of any acts or omissions occurring prior to
such amendment or repeal, nor shall any such amendment or repeal apply
to or have any effect on the right to indemnification and payment of
expenses of directors, officers, employees and agents of the
Corporation, including the right to payment of expenses incurred in
defending a proceeding in advance of its final disposition, conferred
in this Article NINTH for or with respect to or arising out of any acts
or omissions or alleged acts or omissions occurring prior to such
amendment or repeal. "
Item 7. Exemption from Registration Claimed
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This item is not applicable to the securities registered hereby.
Item 8. Exhibits
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See Exhibit Index.
Item 9. Undertakings
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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; and
(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) of this section 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 with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purpose 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 Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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 Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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 of 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Manchester, State of Connecticut, on August 19, 2004.
Scan-Optics, Inc.
By: /s/ James. C. Mavel
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Name: James C. Mavel
Title: President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
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/s/ James C. Mavel President, Chief Executive Officer August 19, 2004
- ------------------ and Chairman of the Board of
James C. Mavel Directors
/s/ Peter H. Stelling Chief Financial Officer, Vice August 18, 2004
- --------------------- President, Treasurer and Assistant
Peter H. Stelling Corporate Secretary
/s/ Ralph J. Takala Director August 18, 2004
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Ralph J. Takala
/s/ John J. Holton Director August 19, 2004
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John J. Holton
/s/ Scott Schooley Director August 18, 2004
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Scott Schooley
/s/ Lynn Tilton Director August 25, 2004
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Lynn Tilton
/s/ Michael Scinto Director August 18, 2004
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Michael Scinto
EXHIBIT INDEX
The following exhibits are incorporated herein by reference as indicated or
filed herewith.
Exhibit No. Description
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4.1 Amended and Restated Certificate of Incorporation of the Participant,
incorporated by reference to Exhibit A of the Registrant's definitive
proxy statement on Schedule 14A, filed with the Commission on June 4,
2004.
4.2 Restated By-Laws of the Company, incorporated by reference to Exhibit
3.2 of the Company's Annual Report on Form 10-K for the year ended
December 31, 2002.
5 Opinion of Day, Berry & Howard LLP as to the legality of the securities
registered hereby, including consent of such counsel.
23.1 Consent of Consent of Day, Berry & Howard LLP (see Exhibit 5).
23.2 Consent of Ernst & Young LLP.
99.1 Scan-Optics, Inc. 2004 Incentive and Non-Qualified Stock Option Plan,
incorporated by reference to Exhibit 10.2 of the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 2004, filed with the
Commission on August 16, 2004.
99.2 Form of Non-Qualified and Incentive Option Agreements for the
Scan-Optics, Inc. 2004 Incentive and Non-Qualified Stock Option Plan.
99.3 Scan-Optics, Inc. 2002 Incentive and Non-Qualified Stock Option Plan,
incorporated by reference to Exhibit A of the Company's definitive proxy
statement on Schedule 14A, filed with the Commission on May 13, 2003.
99.4 Form of Non-Qualified and Incentive Option Agreements for the
Scan-Optics, Inc. 2002 Incentive and Non-Qualified Stock Option Plan.
99.5 Scan-Optics, Inc. 1999 Incentive and Non-Qualified Stock Option Plan,
incorporated by reference to Exhibit A of the Company's definitive proxy
statement on Schedule 14A, filed with the Commission on April 13, 1999.
99.6 Form of Non-Qualified and Incentive Option Agreements for the
Scan-Optics, Inc. 1999 Incentive and Non Qualified Stock Option Plan.
99.7 Scan-Optics, Inc. Amended and Restated Senior Executive Stock Option
Plan, incorporated by reference to Exhibit 10.3 of the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 2004, filed
with the Commission on August 16, 2004.
99.8 Form of Non-Qualified Option Agreement for the Scan-Optics, Inc. Amended
and Restated Senior Executive Stock Option Plan.