As filed with the Securities and Exchange Commission on May 31, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________________
CNS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 41-1580270
(State or other jurisdic- (I.R.S. Employer
tion of incorporation Identification No.)
or organization)
1250 PARK ROAD
CHANHASSEN, MN 55317
(Address of Principal Executive Offices and zip code)
____________________________
CNS, INC.
1994 STOCK PLAN
(Full title of the Plan)
____________________________
Daniel E. Cohen, M.D.
Chief Executive Officer
1250 Park Road
Chanhassen, MN 55317
(612) 474-7600
(Name, address, including zip
code and telephone number
of agent for service)
Copy to:
Patrick Delaney
Lindquist & Vennum P.L.L.P.
4200 IDS Center
Minneapolis, MN 55402
(612) 371-3211
The index to exhibits is set forth on page 5.
<TABLE>
<CAPTION>
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 Per Share Price Fee
<S> <C> <C> <C> <C>
Common Stock, 500,000 shares $33.3125(1) $16,656,250(1) $5,743.53
$.01 par value
</TABLE>
(1) Estimated solely for the purpose of determining the
registration fee pursuant to Rule 457(c) and (h) and based
upon the average of the high and low prices of the Company's
Common Stock on the Nasdaq National Market on May 25, 1995
PART I
Pursuant to the Note to Part I of Form S-8, the information
required by Items 1 and 2 of Form S-8 is not filed as a part of this
Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission are hereby incorporated by reference herein:
(a) The Annual Report of the Company on Form 10-K for the fiscal year
ended December 31, 1994.
(b) The Definitive Proxy Statement dated April 12, 1995 for the 1995
Annual Meeting of Shareholders.
(c) The Quarterly Report on Form 10-Q for the quarter ended March 31,
1995.
(d) The description of the Company's Common Stock as set forth in the
Company's Form 8-A/A Registration Statement filed on May 31, 1995,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 date of
filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Patrick Delaney, Secretary of the Company, is a partner in Lindquist
& Vennum P.L.L.P., which is the law firm passing on the validity of the
securities issued under the Plan.
Item 6. Indemnification of Directors and Officers.
The Company's Bylaws provide that any person who at any time shall
serve or shall have served as a director, officer, employee or agent of
the Company, and the heirs, executors and administrators of such person,
shall be indemnified by the Company in accordance with, and to the
fullest extent permitted by, the provisions of the Delaware General
Corporation Law.
Section 145 of the Delaware General Corporation Law provides the
following:
(a) A corporation shall have power to 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 is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably 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 reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
(b) A corporation shall have power to 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 judgment in its favor by reason of the fact
that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall 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 of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expense which the Court of Chancery or
such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b),
or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Description
4(a) CNS, Inc. 1994 Stock Plan (incorporated by
reference to Exhibit 10.14 to the Company's Annual
Report on Form 10-K for the year ended December 31,
1994).
5(a) Opinion and Consent of Lindquist & Vennum P.L.L.P.
as to the legality of the common stock
offered pursuant to the stock plan
referred to herein.
23(a) Consent of Lindquist & Vennum P.L.L.P. (included in
Exhibit 5(a))
23(b) Consent of KPMG Peat Marwick LLP, independent
public accountants
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;
(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, represents
a fundamental change in the information set forth in the
registration statement;
(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 registration statement is on Form S-3 or Form S-8
and 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 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.
(h) 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 connected
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.
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 Chanhassen, State
of Minnesota, on May 31, 1995.
CNS, INC.
By /s/ Daniel E. Cohen, M.D.
Daniel E. Cohen, M.D.
Chief Executive Officer
POWER OF ATTORNEY
The undersigned officers and directors of CNS, Inc. hereby
constitute and appoint Daniel E. Cohen, M.D. and Richard E. Jahnke, or
either of them, with power to act one without the other, our true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for us and in our stead, in any and all capacities to
sign any and all amendments (including post-effective amendments) to
this Registration Statement and all documents relating thereto, 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 necessary or advisable 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 below by the
following persons on May 31, 1995 in the capacities indicated.
Signature
/s/ Daniel E. Cohen
Daniel E. Cohen, M.D.
Chairman of the Board, Chief Executive
Officer (principal executive officer),
Treasurer and Director
/s/ Richard E. Jahnke
Richard E. Jahnke, President
/s/ Ronald D. Cox
Ronald D. Cox
Vice President of Finance and Chief
Financial Officer (principal financial
and accounting officer)
/s/ Frederick T. Strobl, M.D.
Frederick T. Strobl, M.D.,
Secretary and Director
/s/ Patrick Delaney
Patrick Delaney, Director
/s/ R. Hunt Greene
R. Hunt Greene, Director
/s/ Andrew J. Greenshields
Andrew J. Greenshields, Director
/s/ Richard W. Perkins
Richard W. Perkins, Director
Exhibit 5(a)
May 31, 1995
CNS, Inc.
1250 Park Road
Chanhassen, MN 55317
Re: Opinion of Counsel as to Legality of 500,000 Shares of
Common Stock to be registered under the Securities Act
of 1933
Ladies and Gentlemen:
This opinion is furnished in connection with the registration under
the Securities Act of 1933 on Form S-8 of 500,000 shares of Common Stock, $.01
par value, of CNS, Inc. (the "Company") offered to officers, other key employees
and non-employee directors pursuant to the CNS, Inc. 1994 Stock Plan (the
"Plan").
We advise you that it is our opinion, based on our familiarity with
the affairs of the Company and upon our examination of pertinent documents, that
the 500,000 shares of Common Stock to be issued by the Company under the Plan,
will, when paid for and issued, be validly issued and lawfully outstanding,
fully paid and nonassessable shares of Common Stock of the Company.
The undersigned hereby consent to the filing of this opinion with
the Securities and Exchange Commission as an Exhibit to the Registration
Statement with respect to said shares of Common Stock under the Securities Act
of 1933.
Very truly yours,
/s/ LINDQUIST & VENNUM P.L.L.P.
Exhibit 23(b)
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
CNS, Inc.:
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG Peat Marwick
Minneapolis, Minnesota
May 30, 1995
