AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 31, 2001
REGISTRATION NO. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AWARE, INC.
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2911026
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
40 MIDDLESEX TURNPIKE, BEDFORD, MASSACHUSETTS 01730
(Address of principal executive offices) (Zip code)
AWARE, INC.
2001 NONQUALIFIED STOCK PLAN
(Full title of the plan)
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MICHAEL A. TZANNES
CHIEF EXECUTIVE OFFICER
AWARE, INC.
40 MIDDLESEX TURNPIKE
BEDFORD, MASSACHUSETTS 01730
(Name and address of agent for service)
(781) 276-4000
(Telephone number, including area code, of agent for service)
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WITH COPIES TO:
WILLIAM R. KOLB, ESQ.
JOHN D. HANCOCK, ESQ.
FOLEY, HOAG & ELIOT LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 832-1000
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CALCULATION OF REGISTRATION FEE
======================= ======================== ======================= ===================== =====================
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
----------------------- ------------------------ ----------------------- --------------------- ---------------------
common stock,
$0.01 par value 755,635 shares (1) $8.10 (2) $6,120,644 $1,531
----------------------- ------------------------ ----------------------- --------------------- ---------------------
common stock,
$0.01 par value 2,244,365 shares (3) $9.99 (4) $22,421,207 $5,606
----------------------- ------------------------ ----------------------- --------------------- ---------------------
Total............................................................................... $7,137
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(1) Represents shares of common stock issuable upon the exercise of outstanding
stock options granted under the Aware, Inc. 2001 Nonqualified Stock Plan.
(2) Calculated pursuant to Rule 457(h)(1) under the Securities Act of 1933
based on the weighted average exercise price per share of the awards
outstanding under the plan.
(3) Represents shares of common stock issuable upon exercise of stock options
and other stock-based awards available for grant under the Aware, Inc. 2001
Nonqualified Stock Plan.
(4) Calculated pursuant to Rules 457(c) and (h)(1) under the Securities Act of
1933 based on the average of the high and low sale prices of the common
stock as reported on the Nasdaq National Market on May 23, 2001.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Aware with the Securities and Exchange
Commission are incorporated by reference in this registration statement:
(a) Aware's annual report on Form 10-K for the year ended December
31, 2000.
(b) Aware's quarterly report on Form 10-Q for the three months
ended March 31, 2001; and
(c) The description of Aware's common stock contained in the
registration statement on Form 8-A filed with the Securities
and Exchange Commission on August 8, 1996 under Section 12 of
the Securities Exchange Act of 1934, including any amendment
or report filed for the purpose of updating that description.
All documents subsequently filed by Aware pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the 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 dates of filing of those documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities registered hereby is being passed upon
for Aware by Foley, Hoag & Eliot LLP, Boston, Massachusetts.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 6A of Aware's Amended and Restated Articles of Organization
eliminates the personal liability of Aware's directors to the fullest extent
permitted by law. Section 13(b)(1 1/2) of chapter 156B of the Massachusetts
General Laws (the "Massachusetts Business Corporation Law") provides that the
articles of organization of a corporation may state a provision eliminating or
limiting the personal liability of a director to a corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
but that provision does not eliminate or limit the liability of a director (1)
for any breach of the director's duty of loyalty to the corporation or its
stockholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) under section 61 or 62
of the Massachusetts Business Corporation Law dealing with liability for
unauthorized distributions and loans to insiders, respectively, or (4) for any
transaction from which the director derived an improper personal benefit.
Section 5.8 of Aware's By-Laws, as amended to date, provides that Aware
shall indemnify and hold harmless each of its directors and officers (as well as
any former director or
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officer) to the fullest extent permitted by law against any and all claims and
liabilities to which he may be or become subject by reason of his being or
having been an officer or director of Aware or by reason of his alleged acts or
omissions as an officer or director of Aware, except in relation to matters as
to which such officer or director shall have been guilty of willful malfeasance,
bad faith, gross negligence or reckless disregard of his duties in the conduct
of his office.
Section 5.8 further provides that Aware shall indemnify and reimburse
each such officer and director against and for any and all legal and other
expenses reasonably incurred by him in connection with any such claims and
liabilities, actual or threatened, whether or not, at or prior to the time when
so indemnified, held harmless and reimbursed, he had ceased being an officer or
director of Aware, except in relation to such matters as to which such officer
or director shall have been guilty of willful malfeasance, bad faith, gross
negligence or reckless disregard of his duties in the conduct of his office,
provided that Aware prior to such final adjudication may compromise and settle
any such claims and liabilities and pay such expenses, if such settlement or
payment or both appears, in the judgment of a majority of the board of
directors, to be for the best interest of Aware, evidenced by a resolution to
that effect after receipt by Aware of a written opinion of counsel for Aware
that such officer or director has not been guilty of willful malfeasance, bad
faith, gross negligence or reckless disregard of his duties in the conduct of
his office in connection with the matters involved in such compromise,
settlement and payment.
Section 5.8 further provides that the right of indemnification provided
thereby shall not be exclusive of any rights to which any officer or director
may otherwise be lawfully entitled, and may be incorporated into individual
indemnification agreements between Aware and any officer or director. Aware has
entered into separate indemnification agreements with some of its current
directors and officers and various former directors and officers of Aware. Under
these agreements, Aware has agreed to indemnify each director and officer to the
fullest extent permitted by law from claims to which he may become subject by
reason of his service or actions as a director or officer of Aware, except as to
matters as to which he shall have been guilty of willful malfeasance, bad faith,
gross negligence or reckless disregard of his duties in the conduct of his
office. The agreements also contain provisions regarding reimbursement of
expenses incurred in connection with such claims.
Section 67 of Chapter 156B of the Massachusetts General Laws also
authorizes Massachusetts corporations to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or other agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or other agent of another organization, or with
respect to an employee benefit plan, against any liability incurred by him or
her in any such capacity, or arising out of his or her status as such, whether
or not the corporation would have the power to indemnify him or her against such
liability.
Aware has a directors' and officers' liability insurance policy that
insures Aware's directors and officers against certain liabilities arising out
of claims based on acts or omissions in their capacities as directors or
officers.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
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4.1* Amended and restated articles of organization of Aware.
4.2* Amended and restated by-laws of Aware.
4.3* Specimen certificate for common stock of Aware.
5.1 Opinion of Foley, Hoag & Eliot LLP.
23.1 Consent of Foley, Hoag & Eliot LLP (contained in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Deloitte & Touche LLP.
24.1 Power of attorney (contained on the signature page of this
registration statement).
* Incorporated by reference to Aware's registration statement on Form
S-1, file number 333-6807.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. 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 20 percent
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)(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 with or furnished to the
Commission by the registrant pursuant to Section 13
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or 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; and
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.
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 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.
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 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.
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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 Bedford, Massachusetts, as of May 31, 2001.
AWARE, INC.
By: /s/ Richard P. Moberg
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Richard P. Moberg
Chief Financial Officer and Treasurer
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POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that each individual whose signature appears
below hereby constitutes and appoints Michael A. Tzannes and Richard P. Moberg,
and each of them, his or her true and lawful attorneys-in-fact and agents with
full power of substitution, for him or her and in his or her name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing which
they, or any of them, may deem necessary or advisable to be done in connection
with this registration statement, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or any substitute or substitutes
for him, any or all of them, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the indicated capacities
as of May 31, 2001.
SIGNATURE TITLE
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/s/ John K. Kerr Chairman of the Board of Directors
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John K. Kerr
/s/ Michael A. Tzannes Chief Executive Officer and Director
-------------------------------------- (PRINCIPAL EXECUTIVE OFFICER)
Michael A. Tzannes
/s/ Edmund C. Reiter President and Director
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Edmund C. Reiter
/s/ Richard P. Moberg Chief Financial Officer and Treasurer
-------------------------------------- (PRINCIPAL FINANCIAL AND ACCOUNTING
Richard P. Moberg OFFICER)
/s/ David Ehreth Director
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David Ehreth
/s/ G. David Forney, Jr. Director
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G. David Forney, Jr.
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1* Amended and restated articles of organization of Aware.
4.2* Amended and restated by-laws of Aware.
4.3* Specimen certificate for common stock of Aware.
5.1 Opinion of Foley, Hoag & Eliot LLP.
23.1 Consent of Foley, Hoag & Eliot LLP (contained in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Deloitte & Touche LLP.
24.1 Power of attorney (contained on the signature page of this
registration statement).
* Incorporated by reference to Aware's registration statement on Form S-1,
file number 333-6807.