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As filed with the Securities and Exchange Commission on August 21, 1998
Registration No. 333-23857
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DIGI INTERNATIONAL INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 41-1532464
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
11001 BREN ROAD EAST 55343
MINNETONKA, MINNESOTA (Zip Code)
(Address of principal
executive offices)
DIGI INTERNATIONAL INC.
STOCK OPTION PLAN AS AMENDED AND RESTATED
(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
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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.
(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)
filed on October 5, 1989 under the Exchange Act and all
amendments and reports filed for the purpose of updating such
description.
(4) The description of the Company's Purchase Rights which is
contained in the Registration Statement on Form 8-A (File No.
0-17972) filed on June 25, 1998 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.
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
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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.
<TABLE>
<CAPTION>
Exhibit Description
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<S> <C>
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3(a) to the Company's
Form 10-K for the year ended September 30, 1992 (File
No. 0-17972)).
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)).
4.3 Digi International Inc. Stock Option Plan as Amended and
Restated.*
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5.1 Opinion of Faegre & Benson LLP as to the legality of the
shares being registered.
15 Unaudited Interim Financial Letter.
23.1 Consent of Faegre & Benson LLP (contained in its opinion
filed as Exhibit 5.1 to this Registration Statement).
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Ernst & Young LLP.
24.1 Powers of Attorney.*
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*Previously filed.
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.
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(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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 1 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Minnetonka, State of Minnesota, on August 21, 1998.
DIGI INTERNATIONAL INC.
By /s/ Jerry A. Dusa
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Jerry A. Dusa
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities indicated on August 21, 1998.
<TABLE>
<CAPTION>
Signature Title
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<S> <C>
/s/ Jerry A. Dusa President, Chief Executive Officer and Director
- ------------------------------ (Principal Executive Officer)
Jerry A. Dusa
/s/ Jonathon E. Killmer 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
</TABLE>
*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
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Method
Exhibit Description of Filing
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<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
Previously
4.3 Digi International Inc. Stock Option Plan as Amended and Restated. . . . Filed
5.1 Opinion of Faegre & Benson LLP Filed
as to the legality of the shares being registered. . . . . . . . . . . . Electronically
15 Unaudited Interim Financial Letter . . . . . . . . . . . . . . . . . . . Filed
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 PricewaterhouseCoopers LLP. . . . . . . . . . . . . . . . . . Electronically
23.3 Consent of Ernst & Young LLP . . . . . . . . . . . . . . . . . . . . . . Filed
Electronically
Previously
24 Powers of Attorney.. . . . . . . . . . . . . . . . . . . . . . . . . . . Filed
</TABLE>
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FAEGRE & BENSON LLP
2200 Norwest Center, 90 South Seventh Street
Minneapolis, Minnesota 55402-3901
Telephone 612-336-3000
Fax 612-336-3026
August 21, 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
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FAEGRE & BENSON LLP
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UNAUDITED INTERIM FINANCIAL INFORMATION LETTER
We are aware that our reports dated July 20, 1998, 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 nine-month periods ended June 30, 1998 and 1997,
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 June 30, 1998,
March 31, 1998 and December 31, 1997, are incorporated by reference in
Amendment No. 1 to this registration statement on Form S-8 (File No. 333-23857).
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.
Minneapolis, Minnesota /s/ PricewaterhouseCoopers LLP
August 18, 1998
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CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in Amendment No. 1 to this
Registration Statement of Digi International Inc. on Form S-8 (File No.
333-23857) 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 each of the three years in the period ended September 30, 1997, 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.
PricewaterhouseCoopers LLP
Minneapolis, Minnesota
August 18, 1998
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CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) of Digi International Inc. pertaining to the Stock
Option Plan as Amended and Restated of our report dated October 28, 1997,
with respect to the financial statements of AetherWorks Corporation for the
years ended September 30, 1997 and 1996, and the period from February 24,
1993 (inception) to September 30, 1997 included in the Annual Report (Form
10-K) of Digi International Inc. for the year ended September 30, 1997 filed
with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Minneapolis, Minnesota
August 19, 1998
