As Filed with the Securities and Exchange Commission on January 3, 1997
-----------------------------------------------------------------------
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
FORENSIC TECHNOLOGIES INTERNATIONAL CORPORATION
(Exact name of issuer as specified in its charter)
Maryland 52-1261113
(State of Incorporation) (IRS Employer Identification Number)
2021 Research Drive, Annapolis, Maryland 21401
(Address of Principal Executive Offices)
(410) 224-8770
(Registrant's telephone number, including area code)
FORENSIC TECHNOLOGIES INTERNATIONAL CORPORATION
1992 Stock Option Plan, As Amended
(Full title of the Plan)
---------------------------
Jack B. Dunn, IV
Chief Executive Officer and President
Forensic Technologies International Corporation
2021 Research Drive
Annapolis, Maryland 21401
(410) 224-8770
(Name, address and telephone number of agent for service)
----------------------------
Copy to:
John B. Watkins, Esquire
Wilmer, Cutler & Pickering
100 Light Street
Baltimore, Maryland 21202
(410) 986-2800
----------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) Per Share Price Fee (2)
- --------------------------------------------------------------------------------------------------------------------
Stock Options 1 ,002,548 options ---- ---- ----
Common Stock, 81,900 shares $3.57 $ 292,383 $ 97.36
par value $.01 per 25,059 shares $2.38 $ 297,640 $ 99.11
share, 35,700 shares $4.76 $ 169,932 $ 56.59
issuable upon exercise 184,800 shares $8.50 $1,179,024 $ 392.61
of 58,800 shares $6.38 $ 499,000 $ 166.17
Stock Options 40,000 shares $8.75 $ 350,000 $ 116.55
476,289 shares $9.13 $4,348,518 $ 1,448.06
-------------- ----- --------- ---------
1,002,548 shares $7.12 $7,136,497 $ 2,376.45
TOTALS
- --------------------------------------------------------------------------------------------------------------------
(1) Also registered hereunder are such additional number of shares of Common
Stock, presently indeterminable, as may be necessary to satisfy the antidilution
provisions of the Plan to which this Registration Statement relates.
(2) The registration fee has been calculated in accordance with Rule 457(h) with
respect to 476,289 of the shares registered on the basis of the average of the
high and low sale prices reported on the Nasdaq National Market ("Nasdaq") on
December 27, 1996 and with respect to the remaining 526,259 shares registered on
the basis of the price at which options may be exercised.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information required by Item 1 of
Form S-8 and the statement of availability of registrant information and any
other information required by Item 2 of Form S-8 will be sent or given to
participants as specified by Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"). In accordance with Rule 428 and the requirements
of Part I of Form S-8, such documents are not being filed with the Securities
and Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. Forensic Technologies International Corporation (the
"Registrant" or the "Company") shall maintain a file of such documents in
accordance with the provisions of Rule 428. Upon request, the Registrant shall
furnish the Commission or its staff a copy or copies of all of the documents
included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company hereby incorporates by reference the documents listed in
(a) through (c) below. In addition, all documents subsequently filed by the
Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (prior to filing of a
Post-Effective Amendment which indicates that all securities offered have been
sold or which deregisters all securities 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.
(a) The Company's Prospectus dated May 8, 1996 filed pursuant to Rule
424(b) under the Securities Act, which contains audited financial statements for
the Company's latest fiscal year ended December 31, 1995 and fiscal years ended
December 31, 1993 and 1994, and interim financial statements for the Company's
latest quarter ended March 31, 1996 and the quarter ended March 31, 1995.
(b) The Company's quarterly financial statements on Form 10-Q for the
quarter ended September 30, 1996 filed on November 14, 1996 pursuant to Section
13(a) of the Securities Exchange Act of 1934, as amended.
(c) The Company's Current Reports on Form 8-K pursuant to Item 2 filed
on October 15, 1996, and pursuant to Item 7 filed on November 27, 1996, and
pursuant to Item 5 filed on December 31, 1996.
(d) All of the reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act, since the end of the fiscal year and the interim
period covered by the Prospectus referred to in subsections (a),(b) and (c)
above.
(e) The description of the Company's Common Stock which is incorporated
by reference in the Registration Statement on Form 8-A filed by the Company
under the Exchange Act on April 30, 1996, including any amendment or report
filed for the purpose of updating such description.
Item 4. Description of Securities
Inapplicable.
Item 5. Interests of Named Experts and Counsel
The validity of the authorization and issuance of the Common Stock
offered hereby will be passed upon for the Company by Wilmer, Cutler &
Pickering, Baltimore, Maryland. George P. Stamas, a member of the Board of
Directors and a stockholder of the Company, is a partner in Wilmer, Cutler &
Pickering. As of November 30, 1996, Mr. Stamas was the beneficial owner of 5,838
shares of Common Stock and stock options to purchase 14,700 shares of Common
Stock of the Company.
Item 6. Indemnification of Directors and Officers
1. Statutory Provisions of the Maryland General Corporation Law.
ss.2-418. Indemnification of directors, officers, employees and agents.
(a) Definitions. - In this section the following words have
the meanings indicated.
(1) "Director" means any person who is or was a
director of a corporation and any person who, while a director
of a corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, other enterprise, or
employee benefit plan.
(2) "Corporation" includes any domestic or foreign
predecessor entity of a corporation in a merger,
consolidation, or other transaction in which the predecessor's
existence ceased upon consummation of the transaction.
(3) "Expenses" include attorney's fees.
(4) "Official capacity" means the following:
(i) When used with respect to a director,
the office of director in the corporation; and
(ii) When used with respect to a person
other than a director as contemplated in subsection (j), the
elective or appointive office in the corporation held by the
officer, or the employment or agency relationship undertaken
by the employee or agent in behalf of the corporation.
(iii) "Official capacity" does not include
service of any other foreign or domestic corporation or any
partnership, joint venture, trust, other enterprise, or
employee benefit plan.
-4-
(5) "Party" includes a person who was, is, or is
threatened to be made a named defendant or respondent in a
proceeding.
(6) "Proceeding" means any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative.
(b) Permitted indemnification of director. - (1) A corporation
may indemnify any director made a party to any proceeding by
reason of service in that capacity unless it is established
that:
(i) The act or omission of the director was
material to the matter giving rise to the proceeding; and
1. Was committed in bad faith; or
2. Was the result of active and
deliberate dishonesty; or
(ii) The director actually received an
improper personal benefit in money, property, or services; or
(iii) In the case of any criminal
proceeding, the director had reasonable cause to believe that
the act or omission was unlawful.
(2) (i)Indemnification may be against judgments,
penalties, fines, settlements, and reasonable expenses
actually incurred by the director in connection with the
proceeding.
(ii) However, if the proceeding was one by
or in the right of the corporation, indemnification may not be
made in respect of any proceeding in which the director shall
have been adjudged to be liable to the corporation.
(3) (i) The termination of any proceeding by
judgment, order, or settlement does not create a presumption
that the director did not meet the requisite standard of
conduct set forth in this subsection.
(ii) The termination of any proceeding by
conviction, or a plea of nolo contendere or its equivalent, or
an entry of an order of probation prior to judgment, creates a
rebuttable presumption that the director did not meet that
standard of conduct.
-5-
(c) No indemnification of director liable for improper
personal benefit. - A director may not be indemnified under
subsection (b) of this section in respect of any proceeding
charging improper personal benefit to the director, whether or
not involving action in the director's official capacity, in
which the director was adjudged to be liable on the basis that
personal benefit was improperly received.
(d) Required indemnification against expenses incurred in
successful defense. - Unless limited by the charter:
(1) A director who has been successful, on the merits
or otherwise, in the defense of any proceeding referred to in
subsection (b) of this section shall be indemnified against
reasonable expenses incurred by the director in connection
with the proceeding.
(2) A court of appropriate jurisdiction, upon
application of a director and such notice as the court shall
require, may order indemnification in the following
circumstances:
(i) If it determines a director is entitled
to reimbursement under paragraph (1) of this subsection, the
court shall order indemnification, in which case the director
shall be entitled to recover the expenses of securing such
reimbursement; or
(ii) If it determines that the director is
fairly and reasonably entitled to indemnification in view of
all the relevant circumstances, whether or not the director
has met the standards of conduct set forth in subsection (b)
of this section or has been adjudged liable under the
circumstances described in subsection (c) of this section, the
court may order such indemnification as the court shall deem
proper. However, indemnification with respect to any
proceeding by or in the right of the corporation or in which
liability shall have been adjudged in the circumstances
described in subsection (c) shall be limited to expenses.
(3) A court of appropriate jurisdiction may be the
same court in which the proceeding involving the director's
liability took place.
(e) Determination that indemnification is proper. - (1)
Indemnification under subsection (b) of this section may not
be made by the corporation unless authorized for a specific
proceeding after a determination has been made that
indemnification of the director is permissible in the
circumstances because the director has met the standard of
conduct set forth in subsection (b) of this section.
-6-
(2) Such determination shall be made:
(i) By the board of directors by a majority
vote of a quorum consisting of directors not, at the time,
parties to the proceeding, or, if such a quorum cannot be
obtained, then by a majority vote of a committee of the board
consisting solely of two or more directors not, at the time,
parties to such proceeding and who were duly designated to act
in the matter by a majority vote of the full board in which
the designated directors who are parties may participate:
(ii) By special legal counsel selected by
the board of directors or a committee of the board by vote as
set forth in subparagraph (i) of this paragraph, or, if the
requisite quorum of the full board cannot be obtained therefor
and the committee cannot be established, by a majority vote of
the full board in which directors who are parties may
participate; or
(iii) By the stockholders.
(3) Authorization of indemnification and
determination as to reasonableness of expenses shall be made
in the same manner as the determination that indemnification
is permissible. However, if the determination that
indemnification is permissible is made by special legal
counsel, authorization of indemnification and determination as
to reasonableness of expenses shall be made in the manner
specified in subparagraph (ii) of paragraph (2) of this
subsection for selection of such counsel.
(4) Shares held by directors who are parties to the
proceeding may not be voted on the subject matter under this
subsection.
(f) Payment of expenses in advance of final disposition of
action. - (1) Reasonable expenses incurred by a director who
is a party to a proceeding may be paid or reimbursed by the
corporation in advance of the final disposition of the
proceeding upon receipt by the corporation of:
(i) A written affirmation by the director of
the director's good faith belief that the standard of conduct
necessary for indemnification by the corporation as authorized
in this section has been met; and
(ii) A written undertaking by or on behalf
of the director to repay the amount if it shall ultimately be
determined that the standard of conduct has not been met.
-7-
(2) The undertaking required by subparagraph (ii) of
paragraph (1) of this subsection shall be an unlimited general
obligation of the director but need not be secured and may be
accepted without reference to financial ability to make the
repayment.
(3) Payments under this subsection shall be made as
provided by the charter, bylaws, or contract or as specified
in subsection (e) of this section.
(g) Validity of indemnification provision. - The
indemnification and advancement of expenses provided or
authorized by this section may not be deemed exclusive of any
other rights, by indemnification or otherwise, to which a
director may be entitled under the charter, the bylaws, a
resolution of stockholders or directors, an agreement or
otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office.
(h) Reimbursement of director's expenses incurred while
appearing as witness. - This section does not limit the
corporation's power to pay or reimburse expenses incurred by a
director in connection with an appearance as a witness in a
proceeding at a time when the director has not been made a
named defendant or respondent in the proceeding.
(i) Director's service to employee benefit plan. - For
purposes of this section:
(1) The corporation shall be deemed to have requested
a director to serve an employee benefit plan where the
performance of the director's duties to the corporation also
imposes duties on, or otherwise involves services by, the
director to the plan or participants or beneficiaries of the
plan;
(2) Excise taxes assessed on a director with respect
to an employee benefit plan pursuant to applicable law shall
be deemed fines; and
(3) Action taken or omitted by the director with
respect to an employee benefit plan in the performance of the
director's duties for a purpose reasonably believed by the
director to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the corporation.
(j) Officer, employee or agent. - Unless limited by the
charter:
(1) An officer of the corporation shall be
indemnified as and to the extent provided in subsection (d) of
this section for a director and shall be entitled, to the same
extent as a director, to seek indemnification pursuant to the
provisions of subsection (d);
-8-
(2) A corporation may indemnify and advance expenses
to an officer, employee, or agent of the corporation to the
same extent that it may indemnify directors under this
section; and
(3) A corporation, in addition, may indemnify and
advance expenses to an officer, employee, or agent who is not
a director to such further extent, consistent with law, as may
be provided by its charter, bylaws, general or specific action
of its board of directors, or contract.
(k) Insurance or similar protection. - (1) A corporation may
purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee, or agent of the
corporation, or who, while a director, officer, employee, or
agent of the corporation, is or was serving at the request of
the corporation as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, other enterprise, or
employee benefit plan against any liability asserted against
and incurred by such person in any such capacity or arising
out of such person's position, whether or not the corporation
would have the power to indemnify against liability under the
provisions of this section.
(2) A corporation may provide similar protection,
including a trust fund, letter of credit, or surety bond, not
inconsistent with this section.
(3) The insurance or similar protection may be
provided by a subsidiary or an affiliate of the corporation.
(l) Report of indemnification to stockholders. - Any
indemnification of, or advance of expenses to, a director in
accordance with this section, if arising out of a proceeding
by or in the right of the corporation, shall be reported in
writing to the stockholders with the notice of the next
stockholders' meeting or prior to the meeting.
-9-
2. Charter Provisions.
The Company has provided for indemnification by the following provision
of ARTICLE EIGHTH of its Charter.
The Corporation shall indemnify (a) its directors and
officers, whether serving the Corporation or at its request any other
entity, to the full extent required or permitted by the General Laws of
the State of Maryland now or hereafter in force, including the advance
of expenses under the procedures and to the full extent permitted by
law, and (b) its other employees and agents to such extent as shall be
authorized by the Board of Directors or in the Corporation's By-laws
and be permitted by law. The foregoing shall not be exclusive of any
other rights to which those seeking indemnification may be entitled.
The Board of Directors may take such actions as are necessary to carry
out these indemnification provisions and is expressly empowered to
adopt, approve, and amend from time to time such By-Laws, resolutions
and contracts implementing such provisions or such further
indemnification arrangements as may be permitted by law. No amendment
of the charter of the Corporation shall limit or eliminate the right to
indemnification provided hereunder with respect to acts or omissions
occurring prior to such amendment or appeal.
3. By-laws Provisions.
The Company has provided for indemnification by the following
provisions of ARTICLE XI of its By-laws:
SECTION 1. Definitions. As used in this Article XI, any word
or words that are defined in Section 2-418 of the Corporations and
Associations Article of the Annotated Code of Maryland (the
"Indemnification Section"), as amended from time to time, shall have
the same meaning as provided in the Indemnification Section.
SECTION 2. Indemnification of Directors and Officers. The
Corporation shall indemnify and advance expenses to a director or
officer of the Corporation in connection with a proceeding to the
fullest extent permitted by and in accordance with the Indemnification
Section.
SECTION 3. Indemnification of Other Agents and Employees. With
respect to an employee or agent, other than a director or officer of
the Corporation, the Corporation may, as determined by and in the
discretion of the Board of Directors of the Corporation, indemnify and
advance expenses to such employees or agents in connection with a
proceeding to the extent permitted by and in accordance with the
Indemnification Section.
-10-
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Number Description
4.1* Amended and Restated Articles of Incorporation of
the Registrant.
4.2* Restated By-Laws of the Registrant.
4.3* 1992 Stock Option Plan, as amended.
4.4* Specimen certificate representing the Common
Stock of Registrant.
5.1 Opinion of Wilmer, Cutler & Pickering.
23.1 Consent of Independent Public Accountants.
23.1a Consent of Wilmer, Cutler & Pickering (included
in Exhibit 5.1).
24.1 Power of Attorney (included as part of the
signature page to this Registration Statement).
------------------
* Incorporated herein by reference from the Registrant's Registration
Statement on Form SB-2 (File No. 333-2002).
Item 9. Undertakings
The undersigned Registrant hereby undertakes the following:
(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 1993;
(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;
(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;
-11-
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of any 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 initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes,
that, 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 of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
-12-
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 Annapolis, Maryland on January 3, 1997.
FORENSIC TECHNOLOGIES INTERNATIONAL CORPORATION
/s/ Jack B. Dunn, IV
-------------------------------------
Jack B. Dunn, IV
Chief Executive Officer and President
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints Jack B. Dunn, IV his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him or in his
name, place and stead, in any and all capacities to sign any and all amendments
or post-effective amendments to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
Director, Chief Executive Officer
/s/Jack B. Dunn IV and President (principal executive officer) January 3, 1997
- -------------------
Jack B. Dunn, IV
Executive Vice President and Chief Financial
Officer, Secretary and Treasurer (principal
/s/Gary Sindler financial and accounting officer) January 3, 1997
- ------------------
Gary Sindler
/s/Daniel W. Luczak Chairman of the Board January 3, 1997
- --------------------
Daniel W. Luczak
-13-
/s/ Joseph R. Reynolds, Jr. Vice Chairman of the Board December 31, 1996
- ----------------------------
Joseph R. Reynolds, Jr.
/s/ James A. Flick Director December 31, 1996
- ---------------------
James A. Flick
/s/ Peter F. O'Malley Director December 31, 1996
- ---------------------
Peter F. O'Malley
/s/ Dennis J. Shaughnessy Director December 31, 1996
- -------------------------
Dennis J. Shaughnessy
/s/ George P. Stamas Director December 31, 1996
- --------------------
George P. Stamas
-14-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
to
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
FORENSIC TECHNOLOGIES INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
Exhibits
-15-
Number Description
4.1* Amended and Restated Articles of Incorporation of
the Registrant.
4.2* Restated By-Laws of the Registrant.
4.3* 1992 Stock Option Plan, as amended.
4.4* Specimen certificate representing the Common
Stock of Registrant.
5.1 Opinion of Wilmer, Cutler & Pickering.
23.1 Consent of Independent Public Accountants.
23.1a Consent of Wilmer, Cutler & Pickering (included
in Exhibit 5.1).
24.1 Power of Attorney (included as part of the
signature page to this Registration Statement).
------------------
* Incorporated herein by reference from the Registrant's Registration
Statement on Form SB-2 (File No. 333-2002).
-16-