<PAGE>
As filed with the Securities and Exchange Commission on June 26, 1998
Registration No. 333-_______
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------
DIGI INTERNATIONAL INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 41-1532464
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
11001 BREN ROAD EAST 55343
MINNETONKA, MINNESOTA (Zip Code)
(Address of principal executive offices)
DIGI INTERNATIONAL INC.
NON-OFFICER STOCK OPTION PLAN
(Full title of the plan)
Jonathon E. Killmer
Digi International Inc.
11001 Bren Road East
Minnetonka, Minnesota 55343
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (612) 912-3444
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Proposed
Proposed maximum
Title of Amount maximum aggregate Amount of
securities to to be offering price offering registration
be registered registered(1) per share (1)(2) price (1)(2) fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 750,000
$.01 par value shares $20.6875 $15,515,625.00 $4578
- --------------------------------------------------------------------------------
</TABLE>
(1) The Registration Statement relates to 750,000 shares of Common Stock to be
offered pursuant to the Registrant's 1998 Non-Officer Stock Option Plan.
(2) Estimated solely for the purpose of the registration fee pursuant to
Rule 457(h)(1) based on the average of the high and low sales prices per
share of the Registrant's Common Stock on June 22, 1998, as reported on the
Nasdaq National Market.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
DIGI INTERNATIONAL INC.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, previously filed (File No. 0-17972) with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are, as of their
respective dates, incorporated in this Registration Statement by reference and
made a part hereof:
(1) The latest Annual Report on Form 10-K of Digi International Inc.
(the "Company") for the fiscal year ended September 30, 1997
filed pursuant to Section 13 of the Exchange Act (File
No. 0-17972).
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
Annual Report referred to in (1) above.
(3) The description of the Company's Common Stock which is contained
in the Registration Statement on Form 8-A (File No. 0-17972), as
amended, filed under the Exchange Act and all amendments and
reports filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all of the shares of Common Stock
offered have been sold or which deregisters all shares of the Common Stock then
remaining unsold shall be deemed to be incorporated by reference in and a part
of this Registration Statement from the date of filing of such documents.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or incorporated herein by reference or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
II-l
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Delaware law, a corporation may indemnify any person who was or is a
party or is threatened to be made a party to an action (other than an action by
or in the right of the corporation) by reason of his services as a director or
officer of the corporation, or his service, at the corporation's request, as a
director, officer, employee or agent of another corporation or other enterprise,
against expenses (including attorneys' fees) that are actually and reasonably
incurred by him ("Expenses"), and judgments, fines and amounts paid in
settlement that are actually and reasonably incurred by him, in connection with
the defense or settlement of such action, provided that he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was unlawful.
Although Delaware law permits a corporation to indemnify any person referred to
above against Expenses in connection with the defense or settlement of an action
by or in the right of the corporation, provided that he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the corporation's
best interests, if such person has been judged liable to the corporation,
indemnification is only permitted to the extent that the Court of Chancery (or
the court in which the action was brought) determines that, despite the
adjudication of liability, such person is entitled to indemnity for such
Expenses as the court deems proper. The General Corporation Law of the State of
Delaware also provides for mandatory indemnification of any director, officer,
employee or agent against Expenses to the extent such person has been successful
in any proceeding covered by the statute. In addition, the General Corporation
Law of the State of Delaware provides the general authorization of advancement
of a director's or officer's litigation Expenses in lieu of requiring the
authorization of such advancement by the board of directors in specific cases,
and that indemnification and advancement of Expenses provided by the statute
shall not be deemed exclusive of any other rights to which those seeking
indemnification of Expenses may be entitled under any bylaw, agreement or
otherwise.
Article V of the By-Laws of the Company and indemnification agreements with
directors and officers of the Company provide for the broad indemnification of
the directors and officers of the Company and for advancement of litigation
Expenses to the fullest extent required or permitted by current Delaware law.
The Company maintains a policy of directors and officers liability
insurance that reimburses the Company for Expenses that it may incur in
conjunction with the foregoing indemnity provisions and that may provide direct
indemnification to officers and directors where the Company is unable to do so.
The Certificate of Incorporation of the Company eliminates the personal
liability of a director to the Company or its stockholders for monetary damages
for breach of fiduciary duty as a director, except under certain circumstances
involving certain wrongful acts such as breach of a director's duty of loyalty,
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, for any unlawful acts under Section 174 of the General
Corporation Law of the State of Delaware, or for any transaction from which a
director derives an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit Description
------- -----------
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3(a) to the
Company's Registration Statement on Form S-1 (File
No. 33-30725)).
4.2 Amended and Restated By-Laws of the Company (incorporated
by reference to Exhibit 3(b) to the Company's
Registration Statement on Form S-1 (File No. 33-42384)).
II-2
<PAGE>
4.3 Digi International Inc. Non-Officer Stock Option Plan.
5.1 Opinion of Faegre & Benson LLP as to the legality of the
shares being registered.
23.1 Consent of Faegre & Benson LLP (contained in its opinion
filed as Exhibit 5.1 to this Registration Statement).
23.2 Consent of Coopers & Lybrand L.L.P.
24.1 Powers of Attorney.
ITEM 9. UNDERTAKINGS.
A. The Company 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
a twenty 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
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 with or furnished to the Commission by the Company
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 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company'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
II-3
<PAGE>
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Minnetonka,
State of Minnesota, on June 26, 1998.
DIGI INTERNATIONAL INC.
By /s/ Jerry A. Dusa
-------------------------------------
Jerry A. Dusa
President, Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on June 26, 1998.
Signature Title
- --------- -----
/s/ Jerry A. Dusa President, Chief Executive Officer and
- -------------------------- Director
Jerry A. Dusa (Principal Executive Officer)
/s/ Jonathon E. Killmer Senior Vice President, Chief Financial
- -------------------------- Officer and Treasurer
Jonathon E. Killmer (Principal Financial and Accounting Officer)
John P. Schinas* Chairman of the Board and Director
Willis K. Drake* Director
Richard E. Eichhorn* Director
Mykola Moroz* Director
David Stanley* Director
Robert Moe* Director
*Jerry A. Dusa, by signing his name hereto, does hereby sign this document on
behalf of each of the above named directors of the Registrant pursuant to powers
of attorney duly executed by such.
By /s/ Jerry A. Dusa
-------------------------------------
Jerry A. Dusa, Attorney in Fact
II-5
<PAGE>
<TABLE>
<CAPTION>
Method
Exhibit Description of Filing
- ------- ----------- ---------
<S> <C> <C>
Incorporated by
4.1 Restated Certificate of Incorporation of the Company. . . . . . .Reference
Incorporated by
4.2 Amended and Restated By-Laws of the Company . . . . . . . . . . .Reference
Filed
4.3 Digi International Inc. Non-Officer Stock Option Plan . . . . . .Electronically
5.1 Opinion of Faegre & Benson LLP Filed
as to the legality of the shares being registered . . . . . . . .Electronically
Filed
15 Unaudited Interim Financial Information Letter. . . . . . . . . .Electronically
23.1 Consent of Faegre & Benson LLP (contained in its opinion Filed
filed as Exhibit 5.1 to this Registration Statement). . . . . . .Electronically
Filed
23.2 Consent of Coopers & Lybrand L.L.P. . . . . . . . . . . . . . . .Electronically
Filed
24 Powers of Attorney. . . . . . . . . . . . . . . . . . . . . . . .Electronically
</TABLE>
II-6
<PAGE>
EXHIBIT 4.3
DIGI INTERNATIONAL INC.
NON-OFFICER STOCK OPTION PLAN
1. PURPOSE OF PLAN. The purpose of this Digi International Inc. Non-Officer
Stock Option Plan (the "Plan"), is to promote the interests of Digi
International Inc., a Delaware corporation (the "Company"), and its stockholders
by providing key personnel of the Company and its subsidiaries (other than
officers and directors of the Company) with an opportunity to acquire a
proprietary interest in the Company and thereby develop a stronger incentive to
put forth maximum effort for the continued success and growth of the Company and
its subsidiaries. In addition, the opportunity to acquire a proprietary interest
in the Company will aid in attracting and retaining key personnel of outstanding
ability.
2. ADMINISTRATION OF PLAN. This Plan shall be administered by a committee of
two or more directors (the "Committee") appointed by the Company's board of
directors (the "Board"). A majority of the members of the Committee shall
constitute a quorum for any meeting of the Committee, and the acts of a majority
of the members present at any meeting at which a quorum is present or the acts
unanimously approved in writing by all members of the Committee shall be the
acts of the Committee. Subject to the provisions of this Plan, the Committee
may from time to time adopt such rules for the administration of this Plan as it
deems appropriate. The decision of the Committee on any matter affecting this
Plan or the rights and obligations arising under this Plan or any option granted
hereunder, shall be final, conclusive and binding upon all persons, including
without limitation the Company, stockholders, employees and optionees. To the
full extent permitted by law, (i) no member of the Committee or the CEO Stock
Option Committee (as defined in this paragraph 2) shall be liable for any action
or determination taken or made in good faith with respect to this Plan or any
option granted hereunder and (ii) the members of the Committee and the CEO Stock
Option Committee shall be entitled to indemnification by the Company against and
from any loss incurred by such member or person by reason of any such actions
and determinations. The Committee may delegate all or any part of its authority
under this Plan to a one person committee consisting of the Chief Executive
Officer of the Company as its sole member (the "CEO Stock Option Committee") for
purposes of granting and administering awards.
3. SHARES SUBJECT TO PLAN. The shares that may be made subject to options
granted under this Plan shall be authorized and unissued shares of common stock
(the "Common Shares") of the Company, $.01 par value, or Common Shares held in
treasury, and they shall not exceed 750,000 in the aggregate, except that, if
any option lapses or terminates for any reason before such option has been
completely exercised, the Common Shares covered by the unexercised portion of
such option may again be made subject to options granted under this Plan.
Appropriate adjustments in the number of shares and in the purchase price per
share may be made by the Committee in its sole discretion to give effect to
adjustments made in the number of outstanding Common Shares of the Company
through a merger, consolidation, recapitalization, reclassification,
combination, stock dividend,
<PAGE>
stock split or other relevant change, provided that fractional shares shall be
rounded to the nearest whole share.
4. ELIGIBLE PARTICIPANTS. Options may be granted under this Plan to any key
employee of the Company or any subsidiary thereof, who is not an officer or
director of the Company, and may also be granted to other individuals or
entities who are not "employees" but who provide services to the Company or a
parent or subsidiary thereof in the capacity of an advisor or consultant.
References herein to "employed," "employment" and similar terms (except
"employee") shall include the providing of services in any such capacity or as a
director. The employees and other individuals and entities to whom options may
be granted pursuant to this paragraph 4 are referred to herein as "Eligible
Participants."
5. TERMS AND CONDITIONS OF EMPLOYEE OPTIONS.
(a) Subject to the terms and conditions of this Plan, the Committee
may, from time to time prior to December 1, 2006, grant to such Eligible
Participants as the Committee may determine options to purchase such number
of Common Shares of the Company on such terms and conditions as the
Committee may determine. In determining the Eligible Participants to whom
options shall be granted and the number of Common Shares to be covered by
each option, the Committee may take into account the nature of the services
rendered by the respective Eligible Participants, their present and
potential contributions to the success of the Company, and such other
factors as the Committee in its sole discretion shall deem relevant. The
date and time of approval by the Committee of the granting of an option
shall be considered the date and the time of the grant of such option.
(b) The purchase price of each Common Share subject to an option
granted pursuant to this paragraph 5 shall be fixed by the Committee. Such
purchase price may be set at not less that 50% of the Fair Market Value (as
defined below) of a Common Share on the date of grant.
(c) For purposes of this Plan, the "Fair Market Value" of a Common
Share at a specified date shall, unless otherwise expressly provided in
this Plan, mean the closing sale price of a Common Share on the date
immediately preceding such date or, if no sale of such shares shall have
occurred on that date, on the next preceding day on which a sale of such
shares occurred, on the Composite Tape for New York Stock Exchange listed
shares or, if such shares are not quoted on the Composite Tape for New York
Stock Exchange listed shares, on the principal United States securities
exchange registered under the Act, on which the shares are listed, or, if
such shares are not listed on any such exchange, on the Nasdaq Stock Market
or any similar system then in use or, if such shares are not included on
the Nasdaq Stock Market or any similar system then in use, the mean between
the closing "bid" and the closing "asked" quotation of such a share on the
date immediately preceding the date as of which such Fair Market Value is
being determined, or, if no closing bid or asked quotation is made on that
date, on the next preceding day on which a quotation is made, on an NASD
System or any similar system then in use, provided that if the shares
2
<PAGE>
in question are not quoted on any such system, Fair Market Value shall be
what the Committee determines in good faith to be 100% of the fair market
value of such a share as of the date in question. Notwithstanding anything
stated in this paragraph, if the applicable securities exchange or system
has closed for the day by the time the determination is being made, all
references in this paragraph to the date immediately preceding the date in
question shall be deemed to be references to the date in question.
(d) Each option agreement provided for in paragraph 13 hereof shall
specify when each option granted under this Plan shall become exercisable.
(e) Each option granted pursuant to this paragraph 5 and all rights
to purchase shares thereunder shall cease on the earliest of:
(i) ten years after the date such option is granted or on such
date prior thereto as may be fixed by the Committee on or before the
date such option is granted;
(ii) the expiration of the period after the termination of the
optionee's employment within which the option is exercisable as
specified in paragraph 7(b) or 7(c), whichever is applicable; or
(iii) the date, if any, fixed for cancellation pursuant to
paragraph 7 of this Plan.
In no event shall any option be exercisable at any time after its original
expiration date. When an option is no longer exercisable, it shall be deemed to
have lapsed or terminated and will no longer be outstanding.
6. MANNER OF EXERCISING OPTIONS. A person entitled to exercise an option
granted under this Plan may, subject to its terms and conditions and the terms
and conditions of this Plan, exercise it in whole at any time, or in part from
time to time, by delivery to the Company at its principal executive office, to
the attention of its President, of written notice of exercise, specifying the
number of shares with respect to which the option is being exercised,
accompanied by payment in full of the purchase price of the shares to be
purchased at the time. The purchase price of each share on the exercise of any
option shall be paid in full in cash (including check, bank draft or money
order) at the time of exercise or, at the discretion of the holder of the
option, by delivery to the Company of unencumbered Common Shares having an
aggregate Fair Market Value on the date of exercise equal to the purchase price,
or by a combination of cash and such unencumbered Common Shares. Provided,
however, that a person exercising a stock option shall not be permitted to pay
any portion of the purchase price with stock if, in the opinion of the
Committee, payment in such manner could have adverse financial accounting
consequences for the Company. No shares shall be issued until full payment
therefor has been made, and the granting of an option to an individual shall
give such individual no rights as a stockholder except as to shares issued to
such individual.
3
<PAGE>
7. TRANSFERABILITY AND TERMINATION OF OPTIONS.
(a) During the lifetime of an optionee, only such optionee or his or
her guardian or legal representative may exercise options granted under
this Plan, and no option granted under this Plan shall be assignable or
transferable by the optionee otherwise than by will or the laws of descent
and distribution or pursuant to a domestic relations order as defined in
the Internal Revenue Code of 1986, as amended, or any amendment thereto
(the "Code") or Title I of the Employee Retirement Income Security Act
("ERISA"), or the rules thereunder; provided, however, that any optionee
may transfer a stock option granted under this Plan to a member or members
of his or her immediate family (i.e., his or her children, grandchildren
and spouse) or to one or more trusts for the benefit of such family members
or partnerships in which such family members are the only partners, if
(i) the option agreement with respect to such options, which must be
approved by the Committee, expressly so provides either at the time of
initial grant or by amendment to an outstanding option agreement and
(ii) the optionee does not receive any consideration for the transfer. Any
options held by any such transferee shall continue to be subject to the
same terms and conditions that were applicable to such options immediately
prior to their transfer and may be exercised by such transferee as and to
the extent that such option has become exercisable and has not terminated
in accordance with the provisions of the Plan and the applicable option
agreement. For purposes of any provision of this Plan relating to notice
to an optionee or to vesting or termination of an option upon the death,
disability or termination of employment of an optionee, the references to
"optionee" shall mean the original grantee of an option and not any
transferee.
(b) During the lifetime of an optionee, an option may be exercised
only while the optionee is employed by the Company or a parent or
subsidiary thereof, and only if such optionee has been continuously so
employed since the date the option was granted, except that:
(i) unless otherwise provided in a stock option agreement, an
option granted to an optionee shall continue to be exercisable for
three months after termination of such optionee's employment but only
to the extent that the option was exercisable immediately prior to
such optionee's termination of employment;
(ii) in the case of an optionee who is disabled (within the
meaning of Section 22(e)(3) of the Code) while employed, the option
granted to such optionee may be exercised within one year after
termination of such optionee's employment; and
(iii) as to any optionee whose termination occurs following a
declaration pursuant to paragraph 7 of this Plan, the option granted
to such optionee may be exercised at any time permitted by such
declaration.
4
<PAGE>
(c) An option may be exercised after the death of the optionee, but
only within one year after the death of such optionee.
(d) In the event of the disability (within the meaning of
Section 22(e)(3) of the Code) or death of an optionee, any option granted
to such optionee that was not previously exercisable shall become
immediately exercisable in full if the disabled or deceased optionee shall
have been continuously employed by the Company or a parent or subsidiary
thereof between the date such option was granted and the date of such
disability, or, in the event of death, a date not more than three months
prior to such death.
8. DISSOLUTION, LIQUIDATION, MERGER. In the event of (a) a proposed merger or
consolidation of the Company with or into any other corporation, regardless of
whether the Company is the surviving corporation, unless appropriate provision
shall have been made for the protection of the outstanding options granted under
this Plan by the substitution, in lieu of such options, of options to purchase
appropriate voting common stock (the "Survivor's Stock") of the corporation
surviving any such merger or consolidation or, if appropriate, the parent
corporation of the Company or such surviving corporation, or, alternatively, by
the delivery of a number of shares of the Survivor's Stock which has a Fair
Market Value as of the effective date of such merger or consolidation equal to
the product of (i) the excess of (x) the Event Proceeds per Common Share (as
hereinafter defined) covered by the option as of such effective date, over
(y) the option price per Common Share, times (ii) the number of Common Shares
covered by such option, or (b) the proposed dissolution or liquidation of the
Company (such merger, consolidation, dissolution or liquidation being herein
called an "Event"), the Committee shall declare, at least ten days prior to the
actual effective date of an Event, and provide written notice to each optionee
of the declaration, that each outstanding option, whether or not then
exercisable, shall be cancelled at the time of, or immediately prior to the
occurrence of, the Event (unless it shall have been exercised prior to the
occurrence of the Event) in exchange for payment to the holder of each cancelled
option, within ten days after the Event, of cash equal to the amount (if any),
for each Common Share covered by the cancelled option, by which the Event
Proceeds per Common Share (as hereinafter defined) exceeds the exercise price
per Common Share covered by such option. At the time of the declaration provided
for in the immediately preceding sentence, each option shall immediately become
exercisable in full and each holder of an option shall have the right, during
the period preceding the time of cancellation of the option, to exercise his or
her option as to all or any part of the Common Shares covered thereby. Each
outstanding option granted pursuant to this Plan that shall not have been
exercised prior to the Event shall be cancelled at the time of, or immediately
prior to, the Event, as provided in the declaration, and this Plan shall
terminate at the time of such cancellation, subject to the payment obligations
of the Company provided in this paragraph 8. For purposes of this paragraph,
"Event Proceeds per Common Share" shall mean the cash plus the fair market
value, as determined in good faith by the Committee, of the non-cash
consideration to be received per Common Share by the stockholders of the Company
upon the occurrence of the Event.
9. SUBSTITUTION OPTIONS. Options may be granted under this Plan from time to
time in substitution for stock options held by employees of other corporations
who are about to become employees of the Company or a subsidiary of the Company,
or whose employer is about to become a subsidiary
5
<PAGE>
of the Company, as the result of a merger or consolidation of the Company or a
subsidiary of the Company with another corporation, the acquisition by the
Company or a subsidiary of the Company of all or substantially all the assets of
another corporation or the acquisition by the Company or a subsidiary of the
Company of at least 50% of the issued and outstanding stock of another
corporation. The terms and conditions of the substitute options so granted may
vary from the terms and conditions set forth in this Plan to such extent as the
Board at the time of the grant may deem appropriate to conform, in whole or in
part, to the provisions of the stock options in substitution for which they are
granted.
10. TAX WITHHOLDING. Delivery of Common Shares upon exercise of any
nonstatutory stock option granted under this Plan shall be subject to any
required withholding taxes. A person exercising such an option may, as a
condition precedent to receiving the Common Shares, be required to pay the
Company a cash amount equal to the amount of any required withholdings. In lieu
of all or any part of such a cash payment, the Committee may, but shall not be
required to, permit the optionee to elect to cover all or any part of the
required withholdings, and to cover any additional withholdings up to the amount
needed to cover such optionee's full FICA and federal, state and local income
tax liability with respect to income arising from the exercise of the option,
through a reduction of the number of Common Shares delivered to the person
exercising the option or through a subsequent return to the Company of shares
delivered to the person exercising the option.
11. TERMINATION OF EMPLOYMENT. Neither the transfer of employment of an
optionee between any combination of the Company, a parent corporation or a
subsidiary thereof, nor a leave of absence granted to such optionee and approved
by the Committee, shall be deemed a termination of employment for purposes of
this Plan. The terms "parent" or "parent corporation" and "subsidiary" as used
in this Plan shall have the meaning ascribed to "parent corporation" and
"subsidiary corporation", respectively, in Sections 424(e) and (f) of the Code.
12. OTHER TERMS AND CONDITIONS. The Committee shall have the power, subject to
the other limitations contained herein, to fix any other terms and conditions
for the grant or exercise of any option under this Plan. Nothing contained in
this Plan, or in any option granted pursuant to this Plan, shall confer upon any
optionee any right to continued employment by the Company or any parent or
subsidiary of the Company or limit in any way the right of the Company or any
such parent or subsidiary to terminate an optionee's employment at any time.
13. OPTION AGREEMENTS. All options granted under this Plan shall be evidenced
by a written agreement in such form or forms as the Committee may from time to
time determine.
14. AMENDMENT AND DISCONTINUANCE OF PLAN. The Board may at any time amend,
suspend or discontinue this Plan. No amendment to this Plan shall, without the
consent of the holder of an option previously granted under this Plan, shall
alter or impair any option.
15. EFFECTIVE DATE. This Plan shall be effective April 2, 1998.
6
<PAGE>
EXHIBIT 5.1
FAEGRE & BENSON LLP
2200 Norwest Center, 90 South Seventh Street
Minneapolis, Minnesota 55402-3901
Telephone 612-336-3000
Fax 612-336-3026
June 26, 1998
Digi International Inc.
11001 Bren Road East
Minnetonka, Minnesota 55343
In connection with the proposed registration under the Securities Act
of 1933, as amended, of shares of Common Stock of Digi International Inc., a
Delaware corporation (the "Company"), offered and to be offered pursuant to the
Digi International Inc. Non-Officer Stock Option Plan (the "Plan"), we have
examined the Company's Restated Certificate of Incorporation, its Amended and
Restated By-Laws, and such other documents, including the Registration Statement
on Form S-8, dated the date hereof, to be filed with the Securities and Exchange
Commission relating to such shares (the "Registration Statement"), and have
reviewed such matters of law as we have deemed necessary for this opinion.
Accordingly, based upon the foregoing, we are of the opinion that:
1. The Company is duly and validly organized and existing and in
good standing under the laws of the State of Delaware.
2. The Company has duly authorized the issuance of the shares of
Common Stock which may be issued pursuant to the Plan.
3. The shares which may be issued pursuant to the Plan will be, upon
issuance, validly issued and outstanding and fully paid and nonassessable.
4. All necessary corporate action has been taken by the Company to
adopt the Plan, and the Plan is a validly existing plan of the Company.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Faegre & Benson LLP
----------------------------------------
FAEGRE & BENSON LLP
<PAGE>
EXHIBIT 15
UNAUDITED INTERIM FINANCIAL INFORMATION LETTER
We are aware that our reports dated April 23, 1998, and January 29, 1998,
on our reviews of the interim condensed consolidated financial information of
Digi International, Inc. and Subsidiaries (the "Company") for the three-and
six-month periods ended March 31, 1998 and 1997, and the three-month periods
ended December 31, 1997 and 1996, respectively, included in the Company's
respective Form 10-Qs for the quarters ended March 31, 1998 and December 31,
1997, are incorporated by reference in this registration statement on Form S-8.
Pursuant to Rule 436(c), under the Securities Act of 1933, these reports should
not be considered a part of the registration statement prepared or certified by
us within the meaning of Sections 7 and 11 of that Act.
/s/ Coopers & Lybrand L.L.P.
-----------------------------------
COOPERS & LYBRAND L.L.P.
Minneapolis, Minnesota
June 26, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of Digi International Inc. on Form S-8 of our reports dated December 15, 1997,
on our audits of the consolidated financial statements and financial statement
schedule of Digi International Inc. and Subsidiaries as of September 30, 1997
and 1996, and for the years ended September 30, 1997, 1996 and 1995 which
reports are included or incorporated by reference in the Annual Report of Digi
International Inc. on Form 10-K for the year ended September 30, 1997.
/s/ Coopers & Lybrand L.L.P.
-----------------------------------
COOPERS & LYBRAND L.L.P.
Minneapolis, Minnesota
June 26, 1998
<PAGE>
EXHIBIT 24.1
DIGI INTERNATIONAL INC.
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Digi International Inc., a
Delaware corporation, does hereby make, constitute and appoint Jerry A. Dusa and
Jonathon E. Killmer, and either of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-8 or other applicable form, and all
amendments, including post-effective amendments, thereto, to be filed by said
Corporation with the Securities and Exchange Commission, Washington, D.C., in
connection with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Corporation authorized for issuance under said
Corporation's Stock Option Plan as Amended and Restated, and to file the same,
with all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and either of them, full power and
authority to do and perform any and all acts necessary or incidental to the
performance and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 26th day of June, 1998.
/s/ Robert S. Moe
----------------------------------
Robert S. Moe
<PAGE>
DIGI INTERNATIONAL INC.
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Digi International Inc., a
Delaware corporation, does hereby make, constitute and appoint Jerry A. Dusa and
Jonathon E. Killmer, and either of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-8 or other applicable form, and all
amendments, including post-effective amendments, thereto, to be filed by said
Corporation with the Securities and Exchange Commission, Washington, D.C., in
connection with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Corporation authorized for issuance under said
Corporation's Stock Option Plan as Amended and Restated, and to file the same,
with all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and either of them, full power and
authority to do and perform any and all acts necessary or incidental to the
performance and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 26th day of June, 1998.
/s/ Willis K. Drake
----------------------------------
Willis K. Drake
<PAGE>
DIGI INTERNATIONAL INC.
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Digi International Inc., a
Delaware corporation, does hereby make, constitute and appoint Jerry A. Dusa and
Jonathon E. Killmer, and either of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-8 or other applicable form, and all
amendments, including post-effective amendments, thereto, to be filed by said
Corporation with the Securities and Exchange Commission, Washington, D.C., in
connection with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Corporation authorized for issuance under said
Corporation's Stock Option Plan as Amended and Restated, and to file the same,
with all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and either of them, full power and
authority to do and perform any and all acts necessary or incidental to the
performance and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 26th day of June, 1998.
/s/ David Stanley
----------------------------------
David Stanley
<PAGE>
DIGI INTERNATIONAL INC.
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Digi International Inc., a
Delaware corporation, does hereby make, constitute and appoint Jerry A. Dusa and
Jonathon E. Killmer, and either of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-8 or other applicable form, and all
amendments, including post-effective amendments, thereto, to be filed by said
Corporation with the Securities and Exchange Commission, Washington, D.C., in
connection with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Corporation authorized for issuance under said
Corporation's Stock Option Plan as Amended and Restated, and to file the same,
with all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and either of them, full power and
authority to do and perform any and all acts necessary or incidental to the
performance and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 26th day of June, 1998.
/s/ John P. Schinas
----------------------------------
John P. Schinas
<PAGE>
DIGI INTERNATIONAL INC.
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Digi International Inc., a
Delaware corporation, does hereby make, constitute and appoint Jerry A. Dusa and
Jonathon E. Killmer, and either of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-8 or other applicable form, and all
amendments, including post-effective amendments, thereto, to be filed by said
Corporation with the Securities and Exchange Commission, Washington, D.C., in
connection with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Corporation authorized for issuance under said
Corporation's Stock Option Plan as Amended and Restated, and to file the same,
with all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and either of them, full power and
authority to do and perform any and all acts necessary or incidental to the
performance and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 26th day of June, 1998.
/s/ Richard E. Eichhorn
----------------------------------
Richard E. Eichhorn
<PAGE>
DIGI INTERNATIONAL INC.
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Digi International Inc., a
Delaware corporation, does hereby make, constitute and appoint Jerry A. Dusa and
Jonathon E. Killmer, and either of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-8 or other applicable form, and all
amendments, including post-effective amendments, thereto, to be filed by said
Corporation with the Securities and Exchange Commission, Washington, D.C., in
connection with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Corporation authorized for issuance under said
Corporation's Stock Option Plan as Amended and Restated, and to file the same,
with all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and either of them, full power and
authority to do and perform any and all acts necessary or incidental to the
performance and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 26th day of June, 1998.
/s/ Mykola Moroz
----------------------------------
Mykola Moroz
