As filed with the Securities and Exchange Commission on July 24, 2000.
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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CNS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 41-1580270
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
P.O. BOX 39802
MINNEAPOLIS, MINNESOTA 55439
(Address of Principal Executive Offices and Zip Code)
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CNS, INC.
2000 STOCK OPTION PLAN
(Full title of the Plan)
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DANIEL E. COHEN
CHIEF EXECUTIVE OFFICER
CNS, INC.
P.O. BOX 39802
MINNEAPOLIS, MINNESOTA 55439
TELEPHONE: (612) 820-6696
(Name, address and telephone number, including area code, of agent for service)
COPY TO:
Patrick Delaney, Esq.
Lindquist & Vennum P.L.L.P.
4200 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
(612) 371-3211
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT
EACH CLASS OF TO BE OFFERING PRICE AGGREGATE OFFERING OF REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE(1)
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<S> <C> <C> <C> <C>
Common Stock, Par Value $0.01 per share 700,000 $5.50 $3,850,000 $1,016.40
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</TABLE>
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) and based upon the last sale price of the
Company's Common Stock on the Nasdaq National Market on July 20, 2000.
<PAGE>
PART I
Pursuant 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.
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The following documents filed with the Securities and Exchange Commission
are hereby incorporated by reference:
(a) The Annual Report of the Company on Form 10-K for the fiscal year
ended December 31, 1999.
(b) The Definitive Proxy Statement dated March 29, 2000 for the 2000
Annual Meeting of Stockholders held on May 3, 2000, the Quarterly
Report of the Company on Form 10-Q for the quarter ended March 31,
2000, and the Quarterly Report of the Company on Form 10-Q for the
quarter ended June 30, 2000.
(c) 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 such documents.
Item 4. Description of Securities.
---------------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Lindquist & Vennum P.L.L.P. is rendering its opinion as to the validity of
shares being registered hereby. Patrick Delaney, a partner at Lindquist &
Vennum P.L.L.P., is a director and a holder of Common Stock of the Company.
Item 6. Indemnification of Directors and Officers.
-------------------------------------------------
The Company's Bylaws require indemnification of directors and officers of
the Company in accordance with, and to the fullest extent permitted by, Delaware
law, as it may be amended from time to time.
Section 145 of the Delaware General Corporation Law generally provides that
any person who was or is a director or officer may be indemnified against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with the defense or
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settlement of any threatened, pending or completed legal proceedings in which he
is involved by reason of the fact that he is or was a director or officer if he
acted in good faith and in a manner that 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, if he had no reasonable cause to believe that his
conduct was unlawful. However, if the legal proceeding is by or in the right of
the corporation, the director or officer may not be indemnified in respect of
any claim, issue or matter as to which he shall have been adjudged to be liable
to the corporation unless the court in which such action was brought deems it
proper.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and controlling persons pursuant to
the foregoing provision, or otherwise, we have been advised that, in the opinion
of the SEC, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Exhibit
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4.1 CNS, Inc. 2000 Stock Option Plan
5.1 Opinion of Lindquist & Vennum P.L.L.P.
23.1 Consent of Lindquist & Vennum P.L.L.P. (included in Exhibit 5.1)
23.2 Consent of KPMG LLP
24.1 Power of Attorney (included on signature page)
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;
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Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, 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.
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SIGNATURES
The Registrant. 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 Minneapolis, State of Minnesota, on July 21,
2000.
CNS, INC.
By: /s/ Daniel E. Cohen
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Daniel E. Cohen
Chief Executive Officer, Chairman of the Board and Director
POWER OF ATTORNEY
The undersigned officers and directors of CNS, Inc. hereby constitute and
appoint Daniel E. Cohen and Marti Morfitt, or either of them, with power to act,
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
July 21, 2000 in the capacities indicated.
Signature Title
--------- -----
/s/ Daniel E. Cohen Chief Executive Officer,
-------------------------- Chairman of the Board of Directors and
Daniel E. Cohen Director (principal executive officer)
/s/ Marti Morfitt President, Chief Operating Officer
-------------------------- and Director
Marti Morfitt
/s/ David J. Byrd Vice President of Finance,
-------------------------- Chief Financial Officer and Treasurer
David J. Byrd (principal financial and accounting officer)
/s/ Patrick Delaney Director
--------------------------
Patrick Delaney
/s/ R. Hunt Greene Director
--------------------------
R. Hunt Greene
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/s/ H. Robert Hawthorne Director
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H. Robert Hawthorne
/s/ Andrew J. Greenshields Director
--------------------------
Andrew J. Greenshields
/s/ Richard W. Perkins Director
--------------------------
Richard W. Perkins
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