As Filed with the Securities and Exchange Commission on June 30, 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
1997 Stock Option Plan
(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 1,000,000 options ___ ___ ___
- -------------------------------------------------------------------------------------------------------------------
Common Stock,
par value $.01 per 1,000,000 shares $ 7.25 $ 7,250,000 $ 2,196.95
share,
- -------------------------------------------------------------------------------------------------------------------
(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 the 1,000,000 shares of Common Stock registered hereby on
the basis of the average of the high and low sale prices reported on The
Nasdaq National Market ("Nasdaq") on June 24, 1997.
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.
2
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 Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1996.
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act, including the Company's quarterly financial
statements on Form 10-Q for the quarter ended March 31, 1997 filed on May 15,
1997 pursuant Section 13(a) of the Exchange Act
(c) 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 July 1, 1997, Mr. Stamas was the beneficial owner of 5,838
shares of Common Stock and stock options to purchase 9,800 shares of Common
Stock of the Company.
3
Item 6. Indemnification of Directors and Officers
1. Statutory Provisions of the Maryland General Corporation Law.
Section 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.
(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.
4
(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.
(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.
5
(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.
8
(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);
(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 1997 Stock Option Plan
4.4* Specimen certificate representing the Common Stock
of Registrant.
5.1 Opinion of Wilmer, Cutler & Pickering.
23.1 Consent of Independent Public Accountants.
23.2 Consent of Wilmer, Cutler & Pickering (included in
Exhibit 5.1).
------------------
* 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;
11
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
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
reflating 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, as amended,
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 June 30, 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
- --------- ----- ----
/s/ Jack B. Dunn IV Director, Chief Executive Officer June 30, 1997
- ------------------------------- and President (principal executive
Jack B. Dunn, IV officer)
/s/ Gary Sindler Executive Vice President and June 30, 1997
- ------------------------------- Chief Financial Officer, Secretary
Gary Sindler and Treasurer (principal financial
and accounting officer)
/s/ Daniel W. Luczak Chairman of the Board June 30, 1997
- -------------------------------
Daniel W. Luczak
13
/s/ Joseph R. Reynolds, Jr. Vice Chairman of the Board June 30, 1997
- -------------------------------
Joseph R. Reynolds, Jr.
/s/ James A. Flick Director June 30, 1997
- -------------------------------
James A. Flick
/s/ Peter F O'Malley Director June 30, 1997
- -------------------------------
Peter F. O'Malley
/s/ Dennis J. Shaughnessy Director June 30, 1997
- -------------------------------
Dennis J. Shaughnessy
/s/ George P. Stamas Director June 30, 1997
- -------------------------------
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, As Amended
FORENSIC TECHNOLOGIES INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
Exhibits
Number Description
4.1* Amended and Restated Articles of Incorporation of
the Registrant.
4.2* Restated By-Laws of the Registrant.
4.3 1997 Stock Option Plan
4.4* Specimen certificate representing the Common Stock
of Registrant.
5.1 Opinion of Wilmer, Cutler & Pickering.
23.1 Consent of Independent Public Accountants.
23.2 Consent of Wilmer, Cutler & Pickering (included in
Exhibit 5.1).
------------------
* Incorporated herein by reference from the Registrant's
Registration Statement on Form SB-2 (File No. 333-2002).