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As filed with the Securities and Exchange Commission on September 30, 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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DESTRON FEARING CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 84-1079037
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
490 VILLAUME AVENUE, SOUTH ST. PAUL, MINNESOTA 55075
(Address of Principal Executive Offices) (Zip Code)
STOCK OPTION PLAN
(Full title of the plan)
THOMAS J. AHMANN
CHIEF FINANCIAL OFFICER
DESTRON FEARING CORPORATION
490 VILLAUME AVENUE
SOUTH ST. PAUL, MINNESOTA 55075
(Name and address of agent for service)
(651) 455-1621
(Telephone number, including area code, of agent for service)
Copy to:
MICHELE D. VAILLANCOURT
WINTHROP & WEINSTINE, P.A.
3000 DAIN RAUSCHER PLAZA
60 SOUTH SIXTH STREET
MINNEAPOLIS, MINNESOTA 55402
TELEPHONE: (612) 347-0681
FACSIMILE: (612) 347-0600
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER UNIT(2) PRICE(2) FEE
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Common Stock, 1,000,000 shares $1.22 $1,220,000 $360
$.01 par value
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(1) The number of shares being registered represents the number of additional
shares of Common Stock which may be issued pursuant to the Stock Option
Plan, as amended, in addition to shares previously registered.
(2) Pursuant to Rule 457(c) under the Securities Act of 1933, as amended, the
offering price is equal to the $1.22 average of the high and low prices of
the Common Stock as of September 24, 1998 as quoted on The Nasdaq SmallCap
Market.
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Pursuant to General Instruction E of the General Instructions to Form S-8,
this Registration Statement incorporates by reference the contents of the
Registrant's Registration Statement on Form S-8 (File No. 33-50072).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated herein by reference:
a. The Annual Report on Form 10-K filed by Destron Fearing Corporation
("Company") for the fiscal year ended September 30, 1997 (File No. 0-19688);
b. The Company's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1997, March 31, 1998 and June 30, 1998;
c. Description of the Company's Common Stock contained in the Company's
Registration Statement on Form S-4 (File No. 33-70152), as amended and as
declared effective by the Securities and Exchange Commission on October 12,
1993;
d. All other reports filed by the Company with the Securities and
Exchange Commission pursuant to Sections 13 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), after September 30, 1997; and
e. All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all such securities then remaining unsold.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the shares of the Company's Common Stock
offered hereunder will be passed upon for the Company by Winthrop & Weinstine,
P.A., 3000 Dain Rauscher Plaza, 60 South Sixth Street, Minneapolis, Minnesota
55402.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") provides that
a corporation shall have the power to indemnify its current and former officers,
directors, employees and agents against expenses (including attorneys' fees),
judgments, penalties, fines and amounts paid in settlement and which were
incurred in connection with actions, suits, or proceedings in which such persons
are parties by reason of the fact that they are or were an officer, director,
employee or agent of the corporation, if they acted in good faith, reasonably
believed that the conduct was not opposed to the best interests of the
corporation, and in the case of a criminal
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proceeding, had no reasonable cause to believe the conduct was unlawful.
Section 145(g) of the DGCL also permits a corporation to purchase and
maintain insurance on behalf of its officers, directors, employees and agents
against any liability which may be asserted against, or incurred by, such
persons in their capacities as officers, directors, employees or agents of
the corporation, whether or not the corporation would have had the power to
indemnify the person against the liability under the provisions of such
section.
Article XII of the Bylaws of the Company provides that the directors,
officers, and committee members of the Company and certain other persons shall
have the rights to indemnification in accordance with, and to the fullest extent
provided by, Section 145 of the DGCL.
The Company's Stock Option Plan, as amended ("Plan"), provides that no
member of the Company's Board of Directors or Committees administering the Plan
shall be personally liable for any action, determination or interpretation made
in good faith with respect to the Plan, and all members of the Company's Board
of Directors or Committees administering the Plan shall, in addition to their
rights as directors, be fully protected by the Company with respect to any such
action, determination or interpretation.
ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION
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5.1 Opinion of Winthrop & Weinstine, P.A. as to the legality of Common Stock of the Company.
23.1 Consent of Arthur Andersen L.L.P.
23.2 Consent of Winthrop & Weinstine, P.A. [included in its opinion filed as Exhibit 5.1].
24.1 Powers of Attorney [included as part of signature page].
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ITEM 9. UNDERTAKINGS.
a. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement (i) to include
any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the 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.
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
b. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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 this
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.
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 DGCL, Article XII of the Bylaws of the
Registrant, 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 hereunder, 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.
SIGNATURES
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 South St. Paul, State of Minnesota, on September 28,
1998.
DESTRON FEARING CORPORATION
By: /s/ Randolph K. Geissler
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Randolph K. Geissler
President and Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Randolph K. Geissler and Thomas J. Ahmann, each of whom may act individually as
such person's true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution for such person and in such person's 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 hereto 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 and necessary to be done in and about the
premises, as fully to all intents and purposes as such person might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or his 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.
SIGNATURE TITLE DATE
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/s/ Randolph K. Geissler Chairman of the Board, September 28, 1998
- --------------------------- President, Chief Executive
Randolph K. Geissler Officer and Director
(principal executive officer)
/s/ David A. Henderson Director September 28, 1998
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David A. Henderson
/s/ Kenneth D. Larson Director September 28, 1998
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Kenneth D. Larson
/s/ Richard E. Jahnke Director September 28, 1998
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Richard E. Jahnke
/s/ Douglas M. Pihl Director September 28, 1998
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Douglas M. Pihl
/s/ Stanley Goldberg Director September 28, 1998
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Stanley Goldberg
/s/ Thomas J. Ahmann Vice President-Finance, Chief September 28, 1998
- --------------------------- Financial Officer, Treasurer
Thomas J. Ahmann and Secretary (principal
financial and accounting
officer)
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EXHIBIT INDEX
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Exhibit No. Description Page
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5.1 Opinion of Winthrop & Weinstine, P.A. as to the legality of
Common Stock of the Company
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Winthrop & Weinstine, P.A. [included in its opinion
filed as Exhibit 5.1]
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EXHIBIT 5.1
WINTHROP & WEINSTINE, P.A.
3000 Dain Rauscher Plaza
60 South Sixth Street
Minneapolis, Minnesota 55402
(612) 347-0700
September 28, 1998
Destron Fearing Corporation
490 Villaume Avenue
South St. Paul, MN 55075
Re: Registration Statement on Form S-8
Stock Option Plan, as amended (1,000,000 Shares)
Gentlemen:
We have acted as legal counsel for Destron Fearing Corporation (the "Company")
in connection with the preparation of the Company's Registration Statement on
Form S-8 (the "Registration Statement") filed with the Securities and Exchange
Commission on the date hereof and the Prospectus to be used in conjunction with
the Registration Statement (the "Prospectus") relating to the registration under
the Securities Act of 1933, as amended, of the issuance of 1,000,000 shares (the
"Shares") of common stock, par value $.01 per share (the "Common Stock"), to be
issued under the Company's Stock Option Plan, as amended (the "Plan"), in the
manner set forth in the Registration Statement and the Prospectus.
In connection therewith, we have examined (a) the Certificate of Incorporation
and Bylaws of the Company, both as amended to date; (b) the corporate
proceedings of the Company relative to its organization and to the authorization
and issuance of the Shares; (c) the Plan; and (d) the Registration Statement and
the Prospectus. In addition to such examination, we have reviewed such other
proceedings, documents and records and have ascertained or verified such
additional facts as we deem necessary or appropriate for purposes of this
opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company has been legally incorporated and is validly existing under the
laws of the State of Delaware.
2. All necessary corporate action has been taken by the Company to authorize
the issuance of the Shares.
3. The Shares are validly authorized by the Company's Certificate of
Incorporation, as amended, and when issued and paid for as contemplated in
the Registration Statement, Prospectus and Plan, will be validly issued,
fully paid, and non-assessable.
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We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus.
Very truly yours,
WINTHROP & WEINSTINE, P.A.
By - /s/ Michele D. Vaillancourt
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Michele D. Vaillancourt
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated November 11, 1997
incorporated by reference in Destron Fearing Corporation's Form 10-K for the
year ended September 30, 1997 and to all references to our firm included in this
registration statement.
/s/ Arthur Andersen LLP
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ARTHUR ANDERSEN LLP
Minneapolis, Minnesota
September 28, 1998
