As filed with the Securities and Exchange Commission on June 28, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXFO ELECTRO-OPTICAL ENGINEERING INC.
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(Exact name of registrant as specified in its charter)
CANADA 98-0131231
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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465 GODIN AVENUE
VANIER, QUEBEC
CANADA G1M 3G7
(418) 683-0211
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
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SHARE PLAN
STOCK OPTION PLAN
DIRECTORS' COMPENSATION PLAN
RESTRICTED STOCK AWARD PLAN
(Full title of the plan)
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CT CORPORATION SYSTEM
111 EIGHTH AVENUE
NEW YORK, NEW YORK 10011
(212) 894-8940
(Name and Address, including Zip Code,
and Telephone Number, including Area Code of Agent For Service)
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COPIES TO:
EDWIN S. MAYNARD, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6064
(212) 373-3000
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES AMOUNT OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED TO BE REGISTERED PER SHARE (3) PRICE (3) REGISTRATION FEE
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Subordinate voting shares, 5,588,225(1)(2) U.S.$17.05 U.S.$95,279,236.25 U.S.$23,819.81
without par value
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(1) Represents (a) 707,264 shares issued under the Registrant's Share Plan, (b)
4,470,961 shares issuable upon exercise of options to be granted pursuant
to the Registrant's Stock Option Plan, (c) 50,000 shares issuable pursuant
to the Registrant's Directors' Compensation Plan and (d) 360,000 shares
issuable pursuant to the Registrant's Restricted Stock Award Plan.
(2) This Registration Statement shall, in accordance with Rule 416 under the
Securities Act of 1933, as amended, be deemed to cover such additional
shares as may be issued to prevent dilution resulting from stock splits,
stock dividends or similar transactions.
(3) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(c) and 457(h)(1) of the Securities Act and based
on the average of the high and the low prices of the subordinate voting
shares reported on the Nasdaq National Market on June 21, 2001.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by EXFO Electro-Optical Engineering Inc. (the
"Registrant") are hereby incorporated in this Registration Statement by
reference:
(a) the Registrant's Prospectus, dated June 29, 2000,
filed with the Commission pursuant to Rule 424(b)
under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the Registrant's
Registration Statement on Form F-1 (File No.
333-38956), which was declared effective on June 28,
2000;
(b) the description of the Registrant's subordinate
voting shares contained in the Registrant's
Registration Statement on Form 8-A, filed pursuant to
Section 12(g) of the Securities Exchange Act of 1934
(the "Exchange Act") and any amendment or report
filed for the purpose of updating such description;
and
(c) the description of the Registrant's Restricted Stock
Plan contained in the Registrant's Form 20-F, dated
January 18, 2001, filed with the Commission pursuant
to Section 12(g) of the Exchange Act.
All the documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this Registration Statement that
indicates that all securities offered have been sold or that 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
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 or is
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.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
As of June 27, 2001, certain members and associates of Fasken
Martineau DuMoulin LLP, Canadian counsel to the Registrant, beneficially owned
an aggregate of 2,550 subordinate voting shares of the Registrant.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's by-laws provide that the Registrant will
indemnify any of its directors, former directors, officers and former officers
and other parties specified in the by-laws, against all costs reasonably
incurred by them for any civil, criminal or administrative action or proceeding
to which they are or may made a party by reason of having been a director or
officer. The indemnity covers amounts paid to settle actions or to satisfy
judgments. However, the Registrant may only indemnify these such persons, if
such persons acted honestly and in good faith with a view to the Registrant's
best interests and, in the case of a criminal or administrative action or
proceeding, if such person has reasonable grounds for believing that his or her
conduct was lawful. The Canada Business Corporations Act provides that court
approval is required for the payment of any indemnity in connection with an
action brought by or on the Registrant's behalf.
A policy of directors' and officers' liability insurance is
maintained by the Registrant which insures directors and officers of the
Registrant and its subsidiaries against liability incurred by, arising from or
against them for certain of their acts, errors or omissions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1(a)* Stock Option Plan
4.1(b)* Share Plan
4.1(c)* Directors' Compensation Plan
4.1(d)** Restricted Stock Award Plan
5.1 Opinion of Fasken Martineau DuMoulin LLP regarding
the legality of the securities being registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Fasken Martineau DuMoulin LLP (contained
in Exhibit 5.1)
24.1 Powers of attorney (included on the signature page)
------------------------
* Incorporated by reference to exhibits 10.7, 10.8 and 10.17, respectively,
filed with the Registrant's Registration Statement on Form F-1 (File No.
333-38956), which was declared effective on June 28, 2000.
** Incorporated by reference to exhibit 4.20 filed with the Registrant's
Annual Report on Form 20-F (File No. 000-30895) which was filed on January
18, 2001.
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the
effective date of the Registration
Statement (or the most recent
post-effective amendment thereof)
which, individually or in the
aggregate, represent a fundamental
change in the information set forth
in the Registration Statement.
Notwithstanding the foregoing, any
increase or decrease in volume of
securities offered (if the total
dollar value of securities offered
would not exceed that which was
registered) and any deviation from
the low or high end of the estimated
maximum offering range may be
reflected in the form of prospectus
filed with the Commission pursuant
to Rule 424(b) if, in the aggregate,
the changes in volume and price
represent no more than a 20% change
in the maximum aggregate offering
price set forth in the "Calculation
of Registration Fee" table in the
effective Registration Statement;
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)(l)(i) and
(a)(l)(ii) do not apply if the information required
to be included in a post-effective amendment by the
foregoing paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or
Section 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, 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.
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(b) The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the
Securities Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or 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 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 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 and will be governed
by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Vanier, Province of Quebec, Canada, on June 27, 2001.
EXFO ELECTRO-OPTICAL ENGINEERING INC.
By: /s/ Germain Lamonde
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Name: Germain Lamonde
Title: Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of EXFO
Electro-Optical Engineering Inc. hereby severally constitute Germain Lamonde and
Pierre Plamondon, or any one of them, with full power to act without the other,
our true and lawful attorneys, with full power to sign for us and in our names
in the capacities indicated below, any and all amendments, including
post-effective amendments, to this Registration Statement, and generally do all
such things in our name and behalf in such capacities to enable EXFO
Electro-Optical Engineering Inc. to comply with the applicable provisions of the
Securities Act of 1933, as amended, and all requirements of the Securities and
Exchange Commission, and we hereby ratify and confirm our signatures as they may
be signed by our said attorneys to any and all such amendments.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement on Form S-8 has been signed by the
following persons in the capacities indicated on June 27, 2001:
SIGNATURES TITLE
/s/ Germain Lamonde
------------------------ Chairman of the Board, President and Chief
Germain Lamonde Executive Officer* (Principal Executive Officer)
/s/ Pierre Plamondon
------------------------ Vice-President, Finance and Chief Financial Officer
Pierre Plamondon, CA (Principal Financial and Accounting Officer)
/s/ Pierre Marcouiller
------------------------ Director*
Pierre Marcouiller
/s/ David A. Thompson
------------------------ Director*
David A. Thompson
/s/ Andre Tremblay
------------------------ Director*
Andre Tremblay
/s/ Michael Unger
------------------------ Director*
Michael Unger
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Authorized Representative in the United States:
EXFO America Inc.
By: /s/ Germain Lamonde
-----------------------------------
Name: Germain Lamonde
Title: Director
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* The employee benefit plans being registered pursuant to this Registration
Statement are subject to administration by the Board of Directors of the
Registrant
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EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1(a)* Stock Option Plan
4.1(b)* Share Plan
4.1(c)* Directors' Compensation Plan
4.1(d)** Restricted Stock Award Plan
5.1 Opinion of Fasken Martineau DuMoulin LLP regarding
the legality of the securities being registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Fasken Martineau DuMoulin LLP (contained
in Exhibit 5.1)
24.1 Powers of attorney (included on the signature page)
------------------------
* Incorporated by reference to exhibits 10.7, 10.8 and 10.17, respectively,
filed with the Registrant's Registration Statement on Form F-1 (File No.
333-38956), which was declared effective on June 28, 2000.
** Incorporated by reference to exhibit 4.20 filed with the Registrant's
Annual Report on Form 20-F (File No. 000-30895) which was filed on January
18, 2001.
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