As filed with the Securities and Exchange Commission on July 14, 1998
Registration No. 333-_______
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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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DIGITAL BIOMETRICS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 3571 41-1545069
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
5600 ROWLAND ROAD
MINNETONKA, MINNESOTA 55343
(Address, including Zip Code, of Principal Executive Offices)
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1998 STOCK OPTION PLAN
WARRANTS GRANTED TO ANDCOR COMPANIES, INC.
WARRANT GRANTED TO C. MCKENZIE LEWIS III
(Full Title of the Plan)
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JOHN J. METIL
Chief Operating Officer and COPIES TO:
Chief Financial Officer AVRON L. GORDON, ESQ.
5600 Rowland Road THOMAS F. STEICHEN, ESQ.
Minnetonka, Minnesota 55343 Briggs and Morgan
(612) 932 -0888 Professional Association
(Name, Address, including Zip Code, 2400 IDS Center
and Telephone Number, including Area Minneapolis, Minnesota 55402
Code, of Agent for Service) (612) 334-8400
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
AMOUNT TO BE OFFERING PRICE PER AGGREGATE REGISTRATION
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value...................... 628,000 shares (3) $2.28 $1,431,840 $422.39
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1998 Stock Option Plan by
reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the receipt of consideration which
results in an increase in the number of outstanding shares of Common
Stock.
(2) Calculated solely for the purposes of this offering under Rule 457(h)
of the Securities Act of 1933, as amended, on the basis of the average
of the high and low sales prices for such stock as reported by the
Nasdaq National Market on July 9, 1998.
(3) Consists of 600,000 shares under the 1998 Stock Option Plan, 20,000
shares under two warrants granted to Andcor Companies, Inc. and 8,000
shares under a warrant granted to C. McKenzie Lewis III.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Digital Biometrics, Inc. (the "Company") hereby incorporates by
reference into this Registration Statement the following documents, or portions
of documents, previously filed with the Securities and Exchange Commission (the
"Commission"):
(a) The Company's Annual Report on Form 10-K for the year
ended September 30, 1997, filed on December 23, 1997
(File No. 0-18856), as amended by Form 10-K/A on March
23, 1998.
(b) The Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended December 31, 1997, filed on
February 13, 1998 (File No. 0-18856).
(c) The Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 1998, filed on May 14,
1998 (File No. 0-18856).
(d) The Company's Definitive Schedule 14A (Proxy Statement),
filed on February 24, 1998, (File No. 0-18856), relating
to the Company's Annual Meeting of Stockholders held on
April 8, 1998.
(d) The description of the Company's common stock contained
in its Registration Statement on Form S-1 (File No.
333-41080), effective April 14, 1991.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act and prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which de-registers all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be 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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that directors of
the Company shall not be liable to the Company or its stockholders for monetary
damages for breach of fiduciary duties as a director. The Company's Bylaws
provide that the Company shall indemnify to the fullest extent permitted by law
any person made or threatened to be made a party to any action, suit or
proceeding, whether criminal, civil, administrative or investigative (a "Legal
Action"), whether such Legal Action be by or in the right of the corporation or
otherwise, by reason of the fact that such person is or was a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
any other enterprise. In addition, the Company's Bylaws provide for
indemnification of any person made or threatened to be made a party to any Legal
Action by reason of the fact that
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such person is or was a director, officer, employee or agent of the Company and
is or was serving as a fiduciary of, or otherwise rendering services to, any
employee benefit plan of or relating to the Company.
Section 145 of the Delaware General Corporation Law ("Delaware Law" or
"GCL") generally provides that a corporation is in certain circumstances
permitted, and in other circumstances may be required, to indemnify its
directors, officers and controlling persons against certain expenses (including
attorneys' fees) and other amounts paid in connection with certain threatened,
pending or completed civil, criminal, administrative or investigative actions,
suits or proceedings (including certain civil actions and suits that may be
instituted by or in the right of the Company) in which such persons were or are
parties, or are threatened to be made parties, by reason of the fact that such
persons were or are directors of the Company. Section 145 also permits the
Company to purchase and maintain insurance on behalf of its directors and
officers against, or incurred by, such persons in their capacities as directors
or officers of the Company or which may arise out of their status as directors
or officers of the Company, whether or not the Company would have the power to
indemnify such persons against such liability under the provisions of such
Section. To date, the Company has purchased such insurance.
The Company has entered into an indemnification agreement with each of
its directors pursuant to which the Company has agreed to indemnify and hold
harmless such individuals to the full extent permitted by law against all costs,
charges, and expenses (including attorney fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by them.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
- ------ -----------
5.1 Opinion of Briggs and Morgan, Professional Association.
10.1 Warrant dated January 27, 1997, between the Company and Andcor
Companies, Inc., for the purchase of 10,000 shares of the
Company's Common Stock (incorporated by reference to the
Company's Annual Report on Form 10-K for the year ended
September 30, 1997, filed on December 23, 1997 (File No.
0-18856), as amended by Form 10-K/A on March 23, 1998).
10.2 Warrant dated January 27, 1997, between the Company and Andcor
Companies, Inc., for the purchase of 10,000 shares of the
Company's Common Stock (incorporated by reference to the
Company's Annual Report on Form 10-K for the year ended
September 30, 1997, filed on December 23, 1997 (File No.
0-18856), as amended by Form 10-K/A on March 23, 1998).
10.3 Warrant dated March 18, 1997, between the Company and C.
McKenzie Lewis III for the purchase of 8,000 shares of the
Company's Common Stock (incorporated by reference to the
Company's Annual Report on Form 10-K for the year ended
September 30, 1997, filed on December 23, 1997 (File No.
0-18856), as amended by Form 10-K/A on March 23, 1998).
23.1 Consent of Briggs and Morgan, Professional Association (included
in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney (included on Signature Page).
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ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes as follows:
(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;
(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 the
foregoing 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.
(4) 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 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.
(b) 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 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 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 Minnetonka, State of Minnesota, on the 14th day
of July, 1998.
DIGITAL BIOMETRICS, INC.
By /s/ James C. Granger
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James C. Granger
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James C. Granger and John J. Metil, and
each of them, his true and lawful attorneys-in-fact and agents with full power
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this 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, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary 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 attorneys-in-fact and agents or any of them, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
NAME TITLE DATE
---- ----- ----
/s/ James C. Granger Chief Executive Officer, President and July 14, 1998
- ----------------------- Director (Principal Executive Officer)
James C. Granger
/s/ John J. Metil Chief Operating Officer and Chief July 14, 1998
- ----------------------- Financial Officer
John J. Metil
/s/ Stephen M. Slavin Director July 14, 1998
- -----------------------
Stephen M. Slavin
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NAME TITLE DATE
---- ----- ----
/s/ George Latimer Director July 14, 1998
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George Latimer
/s/ C. McKenzie Lewis Director July 14, 1998
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C. McKenzie Lewis
/s/ John E. Haugo Director July 14, 1998
- -----------------------
John E. Haugo
EXHIBIT INDEX
Exhibit
Number Description
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5.1 Opinion of Briggs and Morgan, Professional Association.
10.1 Warrant dated January 27, 1997, between the Company and Andcor
Companies, Inc., for the purchase of 10,000 shares of the
Company's Common Stock (incorporated by reference to the
Company's Annual Report on Form 10-K for the year ended
September 30, 1997, filed on December 23, 1997 (File No.
0-18856), as amended by Form 10-K/A on March 23, 1998).
10.2 Warrant dated January 27, 1997, between the Company and Andcor
Companies, Inc., for the purchase of 10,000 shares of the
Company's Common Stock (incorporated by reference to the
Company's Annual Report on Form 10-K for the year ended
September 30, 1997, filed on December 23, 1997 (File No.
0-18856), as amended by Form 10-K/A on March 23, 1998).
10.3 Warrant dated March 18, 1997, between the Company and C.
McKenzie Lewis III for the purchase of 8,000 shares of the
Company's Common Stock (incorporated by reference to the
Company's Annual Report on Form 10-K for the year ended
September 30, 1997, filed on December 23, 1997 (File No.
0-18856), as amended by Form 10-K/A on March 23, 1998).
23.1 Consent of Briggs and Morgan, Professional Association (included
in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney (included on Signature Page).
EXHIBIT 5.1
BRIGGS AND MORGAN
PROFESSIONAL ASSOCIATION
2400 IDS CENTER
MINNEAPOLIS, MN 55402
(612) 334-8400
July 14, 1998
Digital Biometrics, Inc.
5600 Rowland Road
Minnetonka, Minnesota 55343
RE: DIGITAL BIOMETRICS, INC.
REGISTRATION STATEMENT ON FORM S-8
1998 STOCK OPTION PLAN
COMMON STOCK PURCHASE WARRANTS
Gentlemen:
In connection with the registration on Form S-8 under the Securities
Act of 1933, as amended, of 628,000 shares of Common Stock to be issued upon the
exercise of options to be granted under the 1998 Stock Option Plan, or the
exercise of warrants granted pursuant to certain Common Stock Purchase
Warrants, we have examined such documents and have reviewed such questions of
law as we have considered necessary and appropriate for the purposes of this
opinion and, based thereon, we advise you that, in our opinion, when such shares
have been issued and sold pursuant to the applicable provisions of the 1998
Stock Option Plan or in accordance with such terms and conditions of the
respective written warrant agreements, and in accordance with the Registration
Statement, such shares will be validly issued, fully paid and nonassessable
shares of the Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
above described Registration Statement.
Very truly yours,
BRIGGS AND MORGAN,
Professional Association
By: /s/ Avron L. Gordon
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Avron L. Gordon
EXHIBIT 23.2
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' CONSENT
The Board of Directors
Digital Biometrics, Inc.:
We consent to the use of our reports incorporated herein by reference.
/s/KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Minneapolis, Minnesota
July 7, 1998
