Registration No. 333-__________
As filed with the Securities and Exchange Commission on August 10, 2011
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
____________________
CYBEROPTICS CORPORATION
(Exact name of registrant as specified in its charter)
Minnesota
(State or other jurisdiction of incorporation or organization) |
41-1472057
(I.R.S. Employer Identification No.) |
5900 Golden Hills Drive
Golden Valley, Minnesota 55416
(Address of principal executive offices
and zip code)
____________________
CYBEROPTICS CORPORATION 1992 EMPLOYEE STOCK
PURCHASE PLAN
(Full title of the plan)
____________________
Kathleen P. Iverson
President
CyberOptics Corporation
5900 Golden Hills Drive
Golden Valley, Minnesota 55416
(612) 542-5000
(Name, address and telephone number of agent for service)
____________________
Copy to:
Thomas Martin
Dorsey & Whitney LLP
Suite 1500
50 South Sixth Street
Minneapolis, MN 55402
____________________
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.
Large accelerated filer ☐ | Accelerated filer ☐ | Non-accelerated filer ☐ | Smaller Reporting Company ☒ |
CALCULATION OF REGISTRATION FEE
Title of securities
to be registered |
Amount to
be registered(1) |
Proposed maximum
offering price per share(2) |
Proposed maximum
aggregate offering price(2) |
Amount of registration fee | ||||
Common Stock,
no par value |
150,000 | $8.40 | $1,260,000 | $146.29 |
(1) | Pursuant to Rule 416(a) of the Securities Act of 1933, this registration statement also covers any additional securities that may be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions in accordance with the terms of the plans. |
(2) | Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933, as amended. The proposed maximum offering price is based upon the average of the high and low selling prices of such Common Stock as quoted on the Nasdaq National Market on August 8, 2011 for 150,000 shares of such Common Stock issuable pursuant to the CyberOptics Corporation 1992 Employee Stock Purchase Plan, as amended. |
Additional Shares; Incorporation by Reference . This Registration Statement is executed for the purpose of registering 150,000 additional shares of Common Stock of CyberOptics Corporation (the “Company”) to be offered pursuant to the terms of our Employee Stock Purchase Plan, as amended. Our previous Registration Statements on Form S-8, filed August 10, 2006 (File No. 333-136500), May 28, 2004 (File No. 333-85321) and August 5, 1992 (File No. 33-50510), as effective, relate to our Employee Stock Purchase Plan, as amended, and pursuant to General Instruction E, are hereby incorporated by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the Securities and Exchange Commission (the “Commission”) by CyberOptics Corporation (the “Company”), are incorporated by reference in this Registration Statement, as of their respective dates:
(a) | our annual report on Form 10-K for the fiscal year ended December 31, 2010 ; |
(b) | our quarterly reports on Form 10-Q for the quarters ended March 31, 2011 and June 30, 2011; |
(c) | our current report on Form 8-K filed May 24, 2011; |
(d) | the description of our common stock contained in any registration statement or report that we have filed under the Securities Exchange Act of 1934, as amended, including any amendment or report filed for the purpose of updating such description. |
All documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the respective dates of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 302A.521, subd. 2, of the Minnesota Business Corporation Act (the “MBCA”) requires us to indemnify a person made or threatened to be made a party to a proceeding by reason of the former or present official capacity of the person with us against judgments, penalties, fines, including, without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlements and reasonable expenses, including attorneys’ fees and disbursements, incurred by the person in connection with the proceeding (collectively “Losses”) if, with respect to the same acts or omissions, such person: (1) has not been indemnified by another organization or employee benefit plan for the same Losses; (2) acted in good faith; (3) received no improper personal benefit, and statutory procedures have been followed in the case of any conflict of interest by a director; (4) in the case of a criminal proceeding, had no reasonable cause to believe the conduct was unlawful; and (5) in the case of acts or omissions occurring in the person’s official capacity as director, officer, member of a committee of the board or employee, reasonably believed that the conduct was in the best interests of the corporation, or in the case of acts or omissions occurring in a director’s, officer’s or employee’s capacity as a director, officer, partner, trustee, employee or agent of another organization or employee benefit plan, reasonably believed that the conduct was not opposed to the best interests of the corporation.
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Article 9 of our Articles of Incorporation, as amended, provides that none of our directors shall be personally liable to us or our shareholders for monetary damages for breach of fiduciary duty as a director. Article 9 does not, however, limit or eliminate the liability of a director to the extent provided by applicable law for (i) any breach of the director’s duty of loyalty to us or our shareholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) authorizing a dividend, stock repurchase or redemption or other distribution in violation of Minnesota law or for violation of certain provisions of Minnesota securities laws or (iv) any transaction from which the director derived an improper personal benefit.
Our Restated Bylaws require us to indemnify such persons, for such liabilities and expenses, in such manner, under such circumstances, and to such extent as is permitted by Section 302A.521 of the MBCA, as now enacted or hereafter amended.
We also maintain an insurance policy or policies to assist in funding our indemnification obligations with respects to directors and officers for certain liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number |
Description | |
4.1 | CyberOptics Corporation 1992 Employee Stock Purchase Plan, as amended. | |
5.1 | Opinion of Dorsey & Whitney LLP | |
23.1 | Consent of Grant Thornton LLP | |
23.2 | Consent of Dorsey & Whitney LLP (included in Exhibit 5.1 above) | |
24.1 | Power of Attorney (included in the signature page to this Registration Statement). |
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 of 1933, as amended (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
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(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 (A) paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if 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 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.
(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 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 Golden Valley, State of Minnesota, on August 10, 2011.
CYBEROPTICS CORPORATION | ||
By | /s/ Kathleen P. Iverson | |
Kathleen P. Iverson, President |
POWER OF ATTORNEY
The officers and directors of CyberOptics Corporation, whose signatures appear below, hereby constitute and appoint Kathleen P. Iverson and Jeffrey Bertelsen, and each of them (with full power to each of them to act alone), the true and lawful attorney-in-fact to sign and execute on behalf of the undersigned, any amendment or amendments to this Registration Statement of CyberOptics Corporation, and each of the undersigned does hereby ratify and confirm all that said attorneys shall do or cause to be done by virtue thereof.
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.
Name | Title | |||
/s/ Kathleen P. Iverson |
Chair, President, CEO and Director (PRINCIPAL EXECUTIVE OFFICER) |
August 10, 2011 | ||
Kathleen P. Iverson | ||||
/s/ Alex B. Cimochowski | Director | August 10, 2011 | ||
Alex B. Cimochowski | ||||
/s/Michael M. Selzer Jr. | Director | August 10, 2011 | ||
Michael M. Selzer, Jr. | ||||
/s/ Irene M. Qualters | Director | July 20, 2011 | ||
Irene M. Qualters | ||||
/s/Subodh Kulkarni | Director | August 2, 2011 | ||
Subodh Kulkarni | ||||
/s/Jeffrey Bertelsen |
Vice President and Chief Financial Officer
|
August 10, 2011 | ||
Jeffrey Bertelsen |
Exhibit Index to
Form S-8
Exhibit
Number |
Description | |
4.1 | CyberOptics Corporation 1992 Employee Stock Purchase Plan, as amended. | |
5.1 | Opinion of Dorsey & Whitney LLP | |
23.1 | Consent of Grant Thornton LLP | |
23.2 | Consent of Dorsey & Whitney LLP (included in Exhibit 5.1 above) | |
24.1 | Power of Attorney (included in the signature page to this Registration Statement). |
EXHIBIT 4.1
As Amended
By the Board on May 23, 2011
CYBEROPTICS CORPORATION
1992 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I. INTRODUCTION
Section 1.01 Purpose . The purpose of the CYBEROPTICS CORPORATION 1992 EMPLOYEE STOCK PURCHASE PLAN (the “Plan”) is to provide employees of CYBEROPTICS CORPORATION, a Minnesota corporation (the “Company”), and certain related corporations with an opportunity to share in the ownership of the Company by providing them with a convenient means for regular and systematic purchases of the Company's Common Shares, without par value, and, thus, to develop a stronger incentive to work for the continued success of the Company.
Section 1.02 Rules of Interpretation . It is intended that the Plan be an “employee stock purchase plan” as defined in Section 423(b) of the Internal Revenue Code of 1986, as amended (the “Code”), and Treasury Regulations promulgated thereunder. Accordingly, the Plan shall be interpreted and administered in a manner consistent therewith if so approved. All Participants in the Plan will have the same rights and privileges consistent with the provisions of the Plan.
Section 1.03 Definitions . For purposes of the Plan, the following terms will have the meanings set forth below:
(a) “ Acceleration Date ” means the earlier of the date of shareholder approval or approval by the Company's Board of Directors of (i) any consolidation or merger of the Company in which the Company is not the continuing or surviving corporation or pursuant to which Company Common Shares would be converted into cash, securities or other property, other than a merger of the Company in which shareholders of the Company immediately prior to the merger have the same proportionate share ownership in the surviving corporation immediately after the merger; (ii) any sale, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company; or (iii) any plan of liquidation or dissolution of the Company.
(b) “ Affiliate ” means any subsidiary corporation of the Company, as defined in Section 424(f) of the Code, whether now or hereafter acquired or established.
(c) “ Committee ” means the committee described in Section 10.01.
(d) “ Company ” means CyberOptics Corporation, a Minnesota corporation, any subsidiary of the Company and any successors to the Company by merger or consolidation as contemplated by Article XI herein.
(e) “ Current Compensation ” means all regular wage, salary and commission payments paid by the Company to a Participant in accordance with the terms of his or her employment, but excluding bonus payments and all other forms of special compensation.
(f) “ Fair Market Value ” as of a given date means such value of the Common Shares as reasonably determined by the Committee in a manner consistent with Section 423 of the Code.
(g) “ Participant ” means a Full-Time Employee who is eligible to participate in the Plan under Section 2.01 and who has elected to participate in the Plan.
(h) “ Participating Affiliate ” means an Affiliate which has been designated by the Committee in advance of the Purchase Period in question as a corporation whose eligible Full-Time Employees may participate in the Plan.
(i) “ Full-Time Employee ” means an employee of the Company or a Participating Affiliate as of the first day of a Purchase Period, including an officer or director who is also an employee, but excluding employees (I) whose customary employment is less than 20 hours per week, (II) who have not yet completed six months of employment, or (III) whose customary employment is not more than 5 months in a calendar year.
(j) “ Plan ” means the CyberOptics Corporation 1992 Employee Stock Purchase Plan, as amended, the provisions of which are set forth herein.
(k) “ Purchase Period ” means each of the 12-month periods beginning on the first business day in August of each year and ending on the last business day in the following July, respectively.
(l) “ Common Shares ” means the Company's Common Shares, without par value, as such Shares may be adjusted for changes in the Shares or the Company as contemplated by Article XI herein.
(m) “ Share Purchase Account ” means the account maintained on the books and records of the Company recording the amount received from each Participant through payroll deductions made under the Plan and from the Company through matching contributions.
ARTICLE II. ELIGIBILITY AND PARTICIPATION
Section 2.01 Eligible Employees . All Full-Time Employees shall be eligible to participate in the Plan beginning on the first day of the first Purchase Period to commence after such person becomes a Full-Time Employee. Subject to the provisions of Article VI, each such employee will continue to be eligible to participate in the Plan so long as he or she remains a Full-Time Employee.
Section 2.02 Election to Participate . An eligible Full-Time Employee may elect to participate in the Plan for a given Purchase Period by filing with the Company, in advance of that Purchase Period and in accordance with such terms and conditions as the Committee in its sole discretion may impose, a form provided by the Company for such purpose (which authorizes regular payroll deductions from Current Compensation beginning with the first payday in that Purchase Period and continuing until the employee withdraws from the Plan or ceases to be eligible to participate in the Plan).
Section 2.03 Limits on Shares Purchased . No employee shall be granted any right to purchase Common Shares hereunder if such employee, immediately after such a right to purchase is granted, would own, directly or indirectly, within the meaning of Section 423(b)(3) and Section 424(d) of the Code, Common Shares possessing 5% or more of the total combined voting power or value of all the classes of the capital shares of the Company or of all Affiliates.
Section 2.04 Voluntary Participation . Participation in the Plan on the part of a Participant is voluntary and such participation is not a condition of employment nor does participation in the Plan entitle a Participant to be retained as an employee.
ARTICLE III. PAYROLL DEDUCTIONS, COMPANY
CONTRIBUTIONS AND SHARE PURCHASE ACCOUNT
Section 3.01 Deduction from Pay . The form described in Section 2.02 will permit a Participant to elect payroll deductions of not less than 1% and not more than 10% of such Participant's Current Compensation for each pay period, subject to the limitation that no more than $6,500 be contributed to the Plan by any Participant in any purchase period and to such other limitations as the Committee in its sole discretion may impose.
Section 3.02 Interest and Company Contributions . The Company may, in the sole discretion of and subject to such limitations as the Committee may impose, pay interest with respect to each Participant's Share Purchase Account.
Section 3.03 Credit to Account . Payroll deductions will be credited to the Participant's Share Purchase Account on each payday.
Section 3.04 Nature of Account . The Share Purchase Account is established solely for accounting purposes, and all amounts credited to the Share Purchase Account will remain part of the general assets of the Company or the Participating Affiliate (as the case may be).
Section 3.05 No Additional Contributions . A Participant may not make any payment into the Share Purchase Account other than the payroll deductions made pursuant to the Plan.
ARTICLE IV. RIGHT TO PURCHASE SHARES
Section 4.01 Number of Shares . Each Participant will have the right to purchase on the last business day of the Purchase Period all, but not less than all, of the largest number of whole Common Shares that can be purchased at the price specified in Section 4.02 with the entire credit balance in the Participant's Share Purchase Account, subject to the limitations that (a) no more than 10,000 Common Shares may be purchased under the Plan by any one Participant for a given Purchase Period, (b) in accordance with Section 423(b)(8) of the Code, no more than $25,000 in Fair Market Value (determined at the beginning of each Purchase Period) of Common Shares and other shares may be purchased under the Plan and all other employee share purchase plans (if any) of the Company and the Affiliates by any one Participant for any calendar year and (c) if the purchases for all Participants in any Purchase Period would result in the sale of more than 100,000 Common Shares in the aggregate under the Plan for such Purchase Period, each Participant shall be allocated a pro rata portion of the 100,000 Common Shares to be sold for that Purchase Period. If the purchases for all Participants would otherwise cause the aggregate number of Common Shares to be sold under the Plan to exceed the number specified in Section 10.03, each Participant shall be allocated a pro rata portion of the Common Shares to be sold.
Section 4.02 Purchase Price . The purchase price for any Purchase Period shall be the lesser of (a) 85% of the Fair Market Value of the Common Shares on the first business day of that Purchase Period or (b) 85% of the Fair Market Value of the Common Shares on the last business day of that Purchase Period, in each case rounded up to the next higher full cent.
ARTICLE V. EXERCISE OF RIGHT
Section 5.01 Purchase of Shares . On the last business day of a Purchase Period, the entire credit balance in each Participant's Share Purchase Account will be used to purchase the largest number of whole Common Shares purchasable with such amount (subject to the limitations of Section 4.01), unless the Participant has filed with the Company, in advance of that date and subject to such terms and conditions as the Committee in its sole discretion may impose, a form provided by the Company which requests the distribution of the entire credit balance in cash.
Section 5.02 Cash Distributions . Any amount remaining in a Participant's Share Purchase Account after the last business day of a Purchase Period will be paid to the Participant in cash in a timely fashion after the end of that Purchase Period.
Section 5.03 Notice of Acceleration Date . The Company shall use its best efforts to notify each Participant in writing at least ten days prior to any Acceleration Date that the then current Purchase Period will end on such Acceleration Date.
ARTICLE VI. WITHDRAWAL FROM PLAN; SALE OF SHARES
Section 6.01 Voluntary Withdrawal . A Participant may, in accordance with such terms and conditions as the Committee in its sole discretion may impose, withdraw from the Plan and cease making payroll deductions by filing with the Company a form provided for this purpose. In such event, the entire credit balance in the Participant's Share Purchase Account will be paid to the Participant in cash within 30 days. A Participant who withdraws from the Plan will not be eligible to reenter the Plan until the beginning of the next Purchase Period following the date of such withdrawal.
Section 6.02 Death . Subject to such terms and conditions as the Committee in its sole discretion may impose, upon the death of a Participant, no further amounts shall be credited to the Participant's Share Purchase Account. Thereafter, on the last business day of the Purchase Period during which such Participant's death occurred and in accordance with Section 5.01, the entire credit balance in such Participant's Share Purchase Account will be used to purchase Common Shares, unless such Participant's estate has filed with the Company, in advance of that day and subject to such terms and conditions as the Committee in its sole discretion may impose, a form provided by the Company which elects to have the entire credit balance in such Participant's Shares Account distributed in cash within 30 days after the end of that Purchase Period or at such earlier time as the Committee in its sole discretion may decide. Each Participant, however, may designate one or more beneficiaries who, upon death, are to receive the Common Shares or the amount that otherwise would have been distributed or paid to the Participant's estate and may change or revoke any such designation from time to time. No such designation, change or revocation will be effective unless made by the Participant in writing and filed with the Company during the Participant's lifetime. Unless the Participant has otherwise specified the beneficiary designation, the beneficiary or beneficiaries so designated will become fixed as of the date of the death of the Participant so that, if a beneficiary survives the Participant but dies before the receipt of the payment due such beneficiary, the payment will be made to such beneficiary's estate.
Section 6.03 Termination of Employment . Subject to such terms and conditions as the Committee in its sole discretion may impose, upon a Participant's normal or early retirement with the consent of the Company under any pension or retirement plan of the Company or Participating Affiliate, no further amounts shall be credited to the Participant's Share Purchase Account. Thereafter, on the last business day of the Purchase Period during which such Participant's approved retirement occurred and in accordance with Section 5.01, the entire credit balance in such Participant's Share Purchase Account will be used to purchase Common Shares, unless such Participant has filed with the Company, in advance of that day and subject to such terms and conditions as the Committee in its sole discretion may impose, a form provided by the Company which elects to receive the entire credit balance in such Participant's Share Purchase Account in cash within 30 days after the end of that Purchase Period, provided that such Participant shall have no right to purchase Common Shares in the event that the last day of such a Purchase Period occurs more than three months following the termination of such Participant's employment with the Company by reason of such an approved retirement. In the event of any other termination of employment (other than death) with the Company or a Participating Affiliate, participation in the Plan will cease on the date the Participant ceases to be a Full-Time Employee for any reason. In such event, the entire credit balance in such Participant's Share Purchase Account will be paid to the Participant in cash within 30 days. For purposes of this Section 6.03, a transfer of employment to any Affiliate, or a leave of absence which has been approved by the Committee, will not be deemed a termination of employment as a Full-Time Employee.
ARTICLE VII. NONTRANSFERABILITY
Section 7.01 Nontransferable Right to Purchase . The right to purchase Common Shares hereunder may not be assigned, transferred, pledged or hypothecated (whether by operation of law or otherwise), except as provided in Section 6.02, and will not be subject to execution, attachment or similar process. Any attempted assignment, transfer, pledge, hypothecation or other disposition or levy of attachment or similar process upon the right to purchase will be null and void and without effect.
Section 7.02 Nontransferable Account . Except as provided in Section 6.02, the amounts credited to a Share Purchase Account may not be assigned, transferred, pledged or hypothecated in any way, and any attempted assignment, transfer, pledge, hypothecation or other disposition of such amounts will be null and void and without effect.
ARTICLE VIII. SHARE CERTIFICATES
Section 8.01 Delivery . Promptly after the last day of each Purchase Period and subject to such terms and conditions as the Committee in its sole discretion may impose, the Company will cause to be delivered to or for the benefit of the Participant a certificate representing the Common Shares purchased on the last business day of such Purchase Period.
Section 8.02 Securities Laws . The Company shall not be required to issue or deliver any certificate representing Common Shares prior to registration under the Securities Act of 1933, as amended, or registration or qualification under any state law if such registration is required. The Company shall use its best efforts to accomplish such registration (if and to the extent required) not later than a reasonable time following the Purchase Period, and delivery of certificates may be deferred until such registration is accomplished.
Section 8.03 Completion of Purchase . A Participant shall have no interest in the Common Shares purchased until a certificate representing the same is issued to or for the benefit of the Participant.
Section 8.04 Form of Ownership . The certificates representing Common Shares issued under the Plan will be registered in the name of the Participant.
ARTICLE IX. EFFECTIVE DATE, AMENDMENT AND
TERMINATION OF PLAN
Section 9.01 Effective Date . The Plan as amended, was approved by the Board of Directors on February 14, 2011, and by the shareholders of the Company on May 23,2011. The Plan will terminate upon completion of the Purchase Period which ends on the first business day occurring on or after July 31, 2021.
Section 9.02 Plan Commencement . The initial Purchase Period under the Plan will commence on August 3, 1992. Thereafter, each succeeding Purchase Period will commence and terminate in accordance with Section 1.03(k).
Section 9.03 Powers of Board . The Board of Directors may amend or discontinue the Plan at any time. No amendment or discontinuation of the Plan, however, shall without shareholder approval be made that: (i) absent such shareholder approval, would cause Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the “Act”) to become unavailable with respect to the Plan, (ii) requires shareholder approval under any rules or regulations of the National Association of Securities Dealers, Inc. or any securities exchange that are applicable to the Company, or (iii) permit the issuance of Common Shares before payment therefor in full
Section 9.04 Automatic Termination . The Plan shall automatically terminate when all of the Common Shares provided for in Section 10.03 have been sold.
ARTICLE X. ADMINISTRATION
Section 10.01 The Committee . The Plan shall be administered by a committee (the “Committee”) of two or more directors of the Company, none of whom shall be officers or employees of the Company and all of whom shall be “disinterested persons” with respect to the Plan within the meaning of Rule 16b-3 under the Act. The members of the Committee shall be appointed by and serve at the pleasure of the Board of Directors.
Section 10.02 Powers of Committee . Subject to the provisions of the Plan, the Committee shall have full authority to administer the Plan, including authority to interpret and construe any provision of the Plan, to establish deadlines by which the various administrative forms must be received in order to be effective, and to adopt such other rules and regulations for administering the Plan as it may deem appropriate. The Committee shall have full and complete authority to determine whether all or any part of the Common Shares acquired pursuant to the Plan shall be subject to restrictions on the transferability thereof or any other restrictions affecting in any manner a Participant's rights with respect thereto but any such restrictions shall be contained in the form by which a Participant elects to participate in the Plan pursuant to Section 2.02. Decisions of the Committee will be final and binding on all parties who have an interest in the Plan.
Section 10.03 Shares to be Sold . The Common Shares to be issued and sold under the Plan may be treasury shares or authorized but unissued shares, or the Company may purchase Common Shares in the market for sale under the Plan. Except as provided in Section 11.01, the aggregate number of Common Shares to be sold under the Plan from the date of initial adoption will not exceed 1,050,000 shares.
Section 10.04 Notices . Notices to the Committee should be addressed as follows:
Compensation Committee
CyberOptics Corporation
5900 Golden Hills Drive
Golden Valley, MN 55416
ARTICLE XI. ADJUSTMENT FOR CHANGES
IN SHARES OR COMPANY
Section 11.01 Share Dividend or Reclassification . If the outstanding Common Shares are increased, decreased, changed into or exchanged for a different number or kind of securities of the Company, or shares of a different par value or without par value, through reorganization, recapitalization, reclassification, share dividend, share split, amendment to the Company's Articles of Incorporation, reverse share split or otherwise, an appropriate adjustment shall be made in the maximum numbers and kind of securities to be purchased under the Plan with a corresponding adjustment in the purchase price to be paid therefor.
Section 11.02 Merger or Consolidation . If the Company is merged into or consolidated with one or more corporations during the term of the Plan, appropriate adjustments will be made to give effect thereto on an equitable basis in terms of issuance of shares of the corporation surviving the merger or of the consolidated corporation, as the case may be.
ARTICLE XII. APPLICABLE LAW
Rights to purchase Common Shares granted under the Plan shall be construed and shall take effect in accordance with the laws of the State of Minnesota.
EXHIBIT 5.1
[DORSEY & WHITNEY LLP Letterhead]
CyberOptics Corporation
5900 Golden Hills Drive
Golden Valley, Minnesota 55416
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8 filed by CyberOptics Corporation (the "Company") with the Securities and Exchange Commission on or about the date hereof, relating to the registration of 150,000 common shares, no par value, which may be issued pursuant to the Company's Employee Stock Purchase Plan, as amended (the "Plan"), please be advised that as counsel to the Company, upon examination of such corporate documents and records as we have deemed necessary or advisable for the purposes of this opinion, it is our opinion that:
1. The Company is a validly existing corporation in good standing under the laws of the State of Minnesota.
2. The 150,000 shares which may be issued by the Company under the Plan will be, when issued and paid for as described in the Registration Statement, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement.
Dated: August 10, 2011
Very truly yours, | |
/s/ DORSEY & WHITNEY LLP |
TOM
EXHIBIT 23.1
Consent of Independent Accountants
We have issued our report dated March 9, 2011, with respect to the consolidated financial statements and schedule included in the Annual Report on Form 10-K for the year ended December 31, 2010 of CyberOptics Corporation, which is incorporated by reference in this Registration Statement. We consent to the incorporation by reference in the Registration Statement of the aforementioned report.
/s/ GRANT THORNTON LLP
Minneapolis, Minnesota
August 10, 2011