SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
Eagle Pacific Industries, Inc.
(Exact Name of Registrant as Specified in its Charter)
Minnesota 41-1642846
(State or Other Juris- (I.R.S. Employer
diction of Incorporation Identification Number)
or Organization)
333 South Seventh Street, Suite 2430
Minneapolis, Minnesota 55402
(Address of Principal Executive Office and Zip Code)
Eagle Pacific Industries, Inc. 1991 Stock Option Plan
(Full Title of the Plan)
William H. Spell
President
Eagle Pacific Industries, Inc.
333 South Seventh Street, Suite 2430
Minneapolis, Minnesota 55402
(612) 371-9650
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Dobson West
Fredrikson & Byron, P.A.
1100 International Centre
Minneapolis, Minnesota 55402
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Proposed
Proposed Maximum Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1) Per Share(2) Offering Price(2) Registration Fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Options to Purchase
Common Stock under
the 1991 Plan Indefinite $ 0.00 $ 0.00 $ 0.00
Common Stock
issuable upon
exercise of options
granted under the
1991 Plan 1,000,000 shares $ 3.00 $3,000,000 $909.09
-------
TOTAL: $909.09
================================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein
and any additional securities which may become issuable pursuant to
anti-dilution provisions of the plan.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
registration fee and based upon the closing price of the Registrant's
Common Stock on November 22, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration
Statement the documents listed in (a) through (c) below:
(a) The Registrant's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, or either (I) the
latest prospectus filed pursuant to Rule 424(b) under the Securities
Act of 1933 that contains audited financial statements for the
Registrant's latest fiscal year for which such statements have been
filed or (II) the Registrant's effective registration statement on
Form 10 or 10-SB filed under the Securities Exchange Act of 1934
containing audited financial statements for the Registrant's latest
fiscal year;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year
covered by the Registrant document referred to in (a) above;
(c) If the class of securities to be offered is registered under Section
12 of the Securities Exchange Act of 1934, the description of such
class of securities contained in a registration statement filed under
such Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant 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 such 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.
Not applicable.
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<PAGE>
Item 6. Indemnification of Directors and Officers.
Under Minnesota corporate law, a corporation shall, unless prohibited or
limited by its Articles of Incorporation or Bylaws, indemnify its directors,
officers, employees and agents against judgments, penalties, fines, settlements,
expenses and disbursements incurred by such person who was, or is threatened to
be, made a party to a proceeding by reason of the fact that the person is or was
a director, officer, employee or agent of the corporation if generally, with
respect to the acts or omissions of the person complained of in the proceeding,
the person: (i) has not been indemnified by another organization with respect to
the same acts or omissions; (ii) acted in good faith, (iii) received no improper
personal benefit; (iv) in the case of a criminal proceeding, had no reasonable
cause to believe the conduct was unlawful; and (v) reasonably believed the
conduct was in the best interests of the corporation or, in certain
circumstances, reasonably believed that the conduct was not opposed to the best
interests of the corporation. Minnesota corporate law also provides that a
corporation may purchase and maintain insurance on behalf of any indemnified
party against any liability asserted against such person, whether or not the
corporation would have been required to indemnify the person against liability
under the provisions of Minnesota corporate law. The Registrant's Articles of
Incorporation and Bylaws do not limit the Registrant's obligation to indemnify
such persons.
The Registrant's Articles of Incorporation limit the liability of its
directors to the full extent permitted by the Minnesota Business Corporation
Act. Specifically, directors of the Registrant will not be personally liable for
monetary damages for breach of fiduciary duty as directors except liability for
(i) any breach of the duty of loyalty to the Registrant or its shareholders,
(ii) acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) dividends or other distributions of
corporate assets that are in contravention of certain statutory or contractual
restrictions, (iv) violations of certain Minnesota securities laws or (v) any
transaction from which the director derives an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5 Opinion and Consent of Fredrikson & Byron, P.A. relating to the
legality of securities under the 1991 Stock Option Plan.
23.1 Consent of Fredrikson & Byron, P.A. -- included in their opinion filed
as Exhibit 5.
23.2 Consent of Deloitte & Touche LLP.
24 Power of Attorney from certain directors.
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:
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<PAGE>
(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 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 purposes 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 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to 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.
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<PAGE>
(c) 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 final
adjudication of such issue.
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 and State of Minnesota, on the 27th
day of November , 1996.
EAGLE PACIFIC INDUSTRIES, INC.
(the "Registrant")
By /s/ Harry W. Spell
Harry W. Spell, Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
(Power of Attorney)
Each of the undersigned constitutes and appoints Harry W. Spell and William
H. Spell his true and lawful attorney-in-fact and agent, each acting alone, with
full powers of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign the Form S-8 Registration
Statement of Eagle Pacific Industries, Inc. relating to the Company's 1991 Stock
Option Plan and any or all amendments or post-effective amendments to the Form
S-8 Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, each acting alone,
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 the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, each acting
alone, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
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<PAGE>
Signature Title Date
/s/ Harry W. Spell Chairman of the Board November 27 , 1996
Harry W. Spell and Chief Executive Officer
(principal executive officer)
/s/ Pat Mertens Chief Financial Officer November 27 , 1996
Patrick M. Mertens (principal financial and
accounting officer)
/s/ G. Peter Konen Director November 27 , 1996
G. Peter Konen
/s/ George R. Long Director November 27 , 1996
George R. Long
/s/ R. W. Perkins Director November 27 , 1996
Richard W. Perkins
/s/ Bruce A. Richard Director November 27 , 1996
Bruce A. Richard
/s/ Larry D. Schnase Director November 27 , 1996
Larry D. Schnase
/s/ William H. Spell Director November 27 , 1996
William H. Spell
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<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EAGLE PACIFIC INDUSTRIES, INC.
Form S-8 Registration Statement
E X H I B I T I N D E X
Exhibit
Number Exhibit Description
5 Opinion and Consent of counsel re securities under the Plan
23.1 Consent of counsel (See Exhibit 5)
23.2 Consent of independent accountants
24 Power of attorney (See Signature Page)
EXHIBIT 5
FREDRIKSON & BYRON, P.A.
900 Second Avenue South, Suite 1100
Minneapolis, Minnesota 55402
Telephone: (612) 347-7000
Fax: (612) 347-7077
November 27, 1996
Eagle Pacific Industries, Inc.
333 South Seventh Street, Suite 2430
Minneapolis, Minnesota 55402
Re: Registration Statement on Form S-8
Ladies/Gentlemen:
We are acting as corporate counsel to Eagle Pacific Industries, Inc. (the
"Company") in connection with the original registration by the Company on Form
S-8 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Act") of up to 250,000 shares (the "Shares") of Common Stock issuable
pursuant to the Company's 1991 Stock Option Plan (the "Plan").
In acting as such counsel and for the purpose of rendering this opinion, we
have reviewed copies of the following, as presented to us by the Company:
1. The Company's Articles of Incorporation, as amended.
2. The Company's Bylaws, as amended.
3. Certain corporate resolutions adopted by the Board of Directors of the
Company pertaining to the adoption of the Plan.
4. The Plan.
5. The Registration Statement.
Based on, and subject to, the foregoing and upon representations and
information provided by the Company or its officers or directors, it is our
opinion as of this date that:
1. The Shares are validly authorized by the Company's Articles of
Incorporation, as amended.
2. Upon issuance and delivery of the Shares against receipt by the
Company of the consideration for the Shares pursuant to the terms of
the Plan, the Shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
FREDRIKSON & BYRON, P.A.
By /s/ Dobson West
Dobson West
EXHIBIT 23.2
We consent to the incorporation by reference in this Registration Statement
of Eagle Pacific Industries, Inc. on Form S-8 relating to the 1991 Stock Option
Plan of our report dated March 6, 1996 (April 1, 1996 as to the last paragraph
of Note 5), appearing in the Annual Report on Form 10-KSB of Eagle Pacific
Industries, Inc. for the year ended December 31, 1995.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Minneapolis, Minnesota
November 25, 1996
