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As filed with the Securities and Exchange Commission on July 11, 2000
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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DURASWITCH INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
NEVADA 88-0308867
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
234 SOUTH EXTENSION ROAD, SUITE
103 85210-8427
MESA, ARIZONA (Zip Code)
(Address of Principal Executive
Offices)
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DURASWITCH INDUSTRIES, INC. 2000 STOCK OPTION PLAN
(Full titles of the plans)
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<S> <C>
ROBERT J. BRILON Copy to:
President and Chief Financial P. ROBERT MOYA, ESQ.
Officer MARK K. BRIGGS, ESQ.
Duraswitch Industries, Inc. Quarles & Brady LLP
234 South Extension Road, Suite One East Camelback Road, Suite 400
103 Phoenix, Arizona 85012
Mesa, Arizona 85210-8427
</TABLE>
(Name and address of agent for service)
(480) 586-3300
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount to maximum maximum
Title of be offering aggregate Amount of
Securities to be Registered price per offering price Registration
registered (1)(4) share(2)(3) (2)(3)(4) fee(5)
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<S> <C> <C> <C> <C>
Common Stock
$.001 par value 250,000 $7.025 $1,756,250 $464
per share
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(1) Includes 250,000 shares of common stock being registered for issuance
pursuant to the exercise of options granted under Duraswitch's 2000 stock
option plan.
(2) Pursuant to Rule 457(h), estimated solely for the purpose of computing the
registration fee, based upon the weighted average of: (a) options to
purchase 205,000 shares of common stock available to be issued under
Duraswitch's 2000 stock option plan, at $7.25 per share, which is the
average of the high and low sales prices of Duraswitch's common stock on
the American Stock Exchange on July 5, 2000; and (b) granted options to
purchase 45,000 shares of common stock under Duraswitch's 2000 stock
option plan, at $6.00 per share.
(3) The actual offering price will be determined in accordance with the terms
of Duraswitch's 2000 stock option plan. However, with respect to incentive
stock options granted under the plan, in no event will the offering price
be less than 100% of the fair market value of the Duraswitch's common
stock on the date on which the option is granted.
(4) The above securities provide for the possible adjustment of the number,
price and kind of shares covered by options granted or to be granted in
the event of certain capital or other changes affecting the Duraswitch's
common stock. This registration statement therefore covers, in addition to
the above-stated shares, an indeterminate number of shares that may become
subject to Duraswitch's 2000 stock option plan by reason of any such
adjustment.
(5) The filing fee has been previously paid. In connection with its
registration statement on Form SB-2 in 1999, Duraswitch paid a total of
$8,622 in filing fees ($2,238 on July 30, 1999 and $6,394 on June 4,
1999). The offering was later decreased in size so that a total fee of
only $3,996 was due, leaving a balance of $4,636. It is from this balance
that Duraswitch wishes to pay the filing fee for this registration
statement on Form S-8.
2
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) will be sent
or given to DuraSwitch stock option plan participants as specified by Rule
428(b)(1) under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, filed by Duraswitch with the Securities and
Exchange Commission under the Securities Act of 1933 and the Securities Exchange
Act of 1934, are incorporated in this registration statement by reference:
(a) Duraswitch's annual report on Form 10-KSB for the fiscal year ended
December 31, 1999;
(b) Duraswitch's quarterly report on Form 10-QSB for the period ended
March 31, 2000;
(c) Duraswitch's registration statement on Form 8-A dated June 26, 1999,
which contains a description of Duraswitch's common stock, and any
amendments or reports filed for the purpose of updating such
description; and
(d) Duraswitch's 8-K dated June 23, 2000, filed with the SEC on or about
June 23, 2000.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this registration statement shall be deemed to be
modified or superseded for purposes of this registration statement to the extent
that a statement contained in this registration statement or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference in this registration statement modifies or supersedes such statement.
Any 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. See Item 3(c) above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Joel H. Bock, an attorney with the firm of Dorn, McEachern, Jambor &
Keating, who provides intellectual property-oriented legal services to
DuraSwitch, owns a total of 15,255 shares of common stock. DuraSwitch provided
7,628 of those shares to Mr. Bock as partial payment for his firm's legal
services. He purchased the remaining shares on June 1, 1997 at $1.31 per share,
which was the market price at that time.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
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Chapter 208, L. '97, 1 of the General Corporation Law of the State of
Nevada (the "General Corporation Law") provides that a Nevada corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, other than an action by or in
the right of the corporation, by reason of the fact that he of she is or was a
director, officer, or agent of another corporation or enterprise, against
expenses, judgments, fines and amounts paid in settlement actually and
reasonable incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonable
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no cause to believe his
or her conduct was unlawful.
Chapter 208, L. '97, 2 of the General Corporation Law provides that a
Nevada corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgments in its favor
by reason of the fact that such person acted in any of the capacities set forth
above, against expenses actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if he or she
acted under similar standards as set forth above. However, no indemnification
may be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless, and only to the
extent that the court in which such action or suit was brought shall determined
that despite the adjuration of liability, but in view of all the circumstances
of the case, such person is fairly and reasonable entitled to be indemnified for
such expenses which the court shall deem proper.
Sections 78.751; 78.752, and Chapter 208, L. '97 of the General
Corporation Law further provide that:
- to the extent a director or officer of a corporation has been
successful on the merits or otherwise in the defense of any action,
suit or proceeding referred to in subsections (a) and (b) or in the
defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses actually and reasonably incurred by him
or her in connection therewith;
- indemnification provided for by Sections 78.751; 78.752, and Chapter
208, L. '97 shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled; and
- the corporation may purchase and maintain insurance on behalf of
such person against any liability asserted against him or her
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 liabilities under such
Section 78.751; 78.752, and Chapter 208, L. '97.
Section 78.037, 1 of the General Corporation Law provides that a
corporation in its original certificate of incorporation or an amendment
thereto, validly approved by stockholders, may eliminate or limit personal
liability of members of its board of directors or governing body for monetary
damages for breach of a director's fiduciary duty. However, no such provision
may eliminate or limit the liability of a director for breaching his or her duty
of loyalty, failing to act in good faith, engaging in intentional misconduct or
knowingly violating a law, paying a dividend or approving a stock repurchase or
redemption which was illegal, or obtaining an improper personal benefit. A
provision of this type has no effect on the availability of equitable remedies,
such as injunction or rescission, for breach of fiduciary duty. Duraswitch's
articles of incorporation contain such a provision.
Duraswitch's articles of incorporation provide that Duraswitch shall
indemnify officers and directors to the full extent permitted by and in the
manner permissible under the law. Duraswitch's bylaws provide that DuraSwitch
may, to the extent authorized by the Board of Directors, indemnify employees and
agents of DuraSwitch made a party to a legal proceeding by reason of that person
being Duraswitch's employee or agent.
Duraswitch has directors' and officers' liability insurance coverage with
a policy limit of $2,000,000. The policy includes coverage for liability for
certain violations of federal and state securities laws.
<PAGE> 5
Duraswitch has entered into indemnity agreements with its directors and
officers for indemnification of and advance of such persons to the full extent
permitted by law. Duraswitch intends to execute such indemnity agreements with
its future officers and directors.
ITEM 7. EXEMPTION FROM THE REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index following signatures page in this registration
statement, which Exhibit Index is incorporated herein by reference.
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 to include
any additional or changed material information on the plan of
distribution.
(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.
(h) Reference is made to the indemnification provisions described in Item 6 of
this Registration Statement. Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of DuraSwitch pursuant to the foregoing
provisions, or otherwise, DuraSwitch 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
DuraSwitch certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, duly authorized, in the
City of Phoenix, State of Arizona, on July 10, 2000.
DURASWITCH INDUSTRIES, INC.
By:/s/ Robert J. Brilon
Robert J. Brilon
President and Chief
Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert J. Brilon and R. Terren Dunlap, or
either of them, his true and lawful attorneys-in-fact and agents, for him and in
his name, place and stead in any and all capacities, to sign any and all
amendments (including pre- and 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 and any
state of the United States, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite and
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 attorneys-in-fact and agents may lawfully 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 dates indicated.
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Signature Title
<S> <C> <C>
/s/ R. Terren Dunlap July 10, 2000
R. Terren Dunlap CEO, Chairman and Director Date
(Principal Executive Officer)
/s/ Robert J. Brilon July 10, 2000
Robert J. Brilon President and Chief Financial Date
Officer (Principal Financial
and Accounting Officer)
/s/ Anthony J. Van Zeeland July 10, 2000
Anthony J. Van Zeeland Director Date
Michael A. Van Zeeland Director Date
/s/ John W. Hail July 10, 2000
John W. Hail Director Date
/s/ William E. Peelle July 10, 2000
William E. Peelle Director Date
Carl G. Rausch Director Date
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DURASWITCH INDUSTRIES, INC.
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
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Exhibit Incorporated Herein Filed
Number Description By Reference To Herewith
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4.1 Articles 3, 4, 5 and Registrant's
7 of the Articles of Registration Statement
Incorporation of on Form SB-2, dated
DuraSwitch August 26, 1999, as
amended.
4.2 Articles II, III, Registrant's
and VI of the Registration Statement
Amended and Restated on Form S-8, filed on or
Bylaws of DuraSwitch about December 10, 1999.
5.1 Opinion of Quarles & X
Brady LLP
23.1 Consent of Deloitte X
& Touche LLP
23.2 Consent of Quarles & Contained in
Brady LLP opinion filed
as Exhibit 5.1
99.1 DuraSwitch Duraswitch's proxy
Industries, Inc. statement filed with
2000 Stock Option the SEC on or about May
Plan 12, 2000.
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