<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 15, 1997
REGISTRATION NO. 33-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RACOTEK, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 41-1636021
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
--------------------
7301 OHMS LANE, SUITE 200
MINNEAPOLIS, MINNESOTA 55439
(612) 832-9800
(Address of principal executive offices)
--------------------
1993 EQUITY INCENTIVE PLAN
(Full title of the plans)
DAVID J. MAENKE, CHIEF FINANCIAL OFFICER
7301 OHMS LANE, SUITE 200
MINNEAPOLIS, MINNESOTA 55439
(612) 832-9800
(Name, address and telephone number, including area code, of agent for service)
--------------------
COPIES TO:
SUSAN A. DUNN, ESQ.
FENWICK & WEST LLP
TWO PALO ALTO SQUARE
PALO ALTO, CALIFORNIA 94306
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
PROPOSED
AMOUNT PROPOSED MAXIMUM MAXIMUM AMOUNT OF
TO BE OFFERING PRICE PER AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE OFFERING PRICE FEE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 1,000,000 (1) $2.41 (2) $2,406,250 $729
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Additional shares available for grant as of May 13, 1997 under the 1993
Equity Incentive Plan.
(2) Estimated as of September 9, 1997 pursuant to Rule 457(h) under the
Securities Act of 1933, as amended, solely for the purpose of calculating
the registration fee on the basis of the average of the high and low prices
reported on the Nasdaq National Market on September 9, 1997.
This Registration Statement, including exhibits, consists of 14
sequentially numbered pages. The Index to Exhibits appears on
sequentially numbered page 9.
<PAGE>
RACOTEK, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996, filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 as amended (the "Exchange
Act").
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997 and June 30, 1997, filed pursuant to Section
13(a) or 15(d) of the Exchange Act.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed on October
26, 1993 with the Commission under Section 12(g) of the Exchange
Act, and declared effective by the Commission on December 9,
1993, and any amendment or report subsequently filed for the
purpose of updating such description, including the Registrant's
Registration Statement on Form 8-A filed on September 14, 1994
with the Commission under Section 12(g) of the Exchange Act and
declared effective by the SEC on September 27, 1994.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the 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.
As permitted by Section 145 of the Delaware General Corporation Law,
the Registrant's Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors for monetary damages for
breach or alleged breach of their duty of care, except for liability (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii)
2
<PAGE>
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived an
improper personal benefit. In addition, as permitted by Section 145 of the
Delaware General Corporation Law, the Bylaws of the Registrant provide that (i)
the Registrant is required to indemnify its directors and officers and persons
serving in such capacities in other business enterprises (including, for
example, subsidiaries of the Registrant) at the Registrant's request to the
fullest extent permitted by the Delaware General Corporation Law including those
circumstances in which indemnification would otherwise be discretionary; (ii)
the Registrant may, in its discretion, indemnify employees and agents where
indemnification is not required by law; (iii) upon receipt of an undertaking by
the indemnitee to repay all amounts advanced and if it is ultimately determined
that such indemnitee is not entitled to indemnification, the Registrant is
required to advance expenses, as incurred, to its directors and officers in
connection with defending a proceeding; (iv) the rights conferred in the Bylaws
are not exclusive and the Registrant is authorized to enter into indemnification
agreements with its directors, officers and employees; and (v) the Registrant
may not retroactively amend the Bylaw provisions in a way that is adverse to
such directors, officers and employees.
The Registrant's policy is to enter into indemnification agreements
with each of its directors and executive officers that provide the maximum
indemnity allowed to directors and executive officers by Section 145 of the
Delaware General Corporation Law and the Registrant's Bylaws, as well as certain
procedural protections. In addition, the indemnification agreements provide
that directors and executive officers will be indemnified to the fullest
possible extent not prohibited by law against all expenses including attorneys'
fees and settlement amounts paid or incurred by them in any action or
proceeding, including any derivative action by or in the right of the
Registrant, on account of their services as directors or executive officers of
the Registrant or as directors or officers of any other company or enterprise
when they are serving in such capacities at the request of the Registrant. The
Registrant will not be obligated pursuant to the agreements to indemnify or
advance expenses to an indemnified party with respect to proceedings or claims
initiated by the indemnified party and not by way of defense, except with
respect to proceeds specifically authorized by the Board of Directors or brought
to enforce a right to indemnification under the indemnification agreement, the
Registrant's Bylaws or any statute or law. Under the agreements, the Registrant
is not obligated to indemnify the indemnified party (i) for any amounts paid in
settlement of a proceeding unless the Registrant consents to such settlement;
(ii) for any amounts paid in settlement of a proceeding unless the Registrant
consents in advance to such settlement; and (iii) if a final decision by a court
having jurisdiction in the matter shall determine that such indemnification is
not lawful.
The indemnification agreement requires a director or executive officer
to reimburse the Registrant for all expenses advanced only to the extent it is
ultimately determined that the director or executive officer is not entitled,
under Delaware law, the Registrant's Bylaws, the indemnification agreement or
otherwise to be indemnified for such expenses. The indemnification agreement
provides that it is not exclusive of any rights a director or executive officer
may have under the Certificate of Incorporation, the Registrant's Bylaws, other
agreements, any majority-in-interest vote of the stockholders or vote of
disinterested directors, Delaware law, or otherwise.
3
<PAGE>
The indemnification provision in the Registrant's Bylaws, and the
indemnification agreements entered into between the Registrant and its directors
and executive officers, may be sufficiently broad to permit indemnification of
the officers and directors for liabilities arising under the Securities Act of
1933, as amended (the "Securities Act").
The indemnification agreements require the Registrant to maintain
director and officer liability insurance to the extent reasonably available. As
authorized by the Registrant's Bylaws, the Registrant, with approval by the
Board, has purchased director and officer liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
4.01 Registrant's Third Amended and Restated Certificate of
Incorporation (incorporated herein by reference to Exhibit
3.01 of the Registrant's Form 10-K filed with the Securities
and Exchange Commission by Registrant for the year ended
December 31, 1993, Commission File No. 0-22718).
4.02 Registrant's Certificate of Designation (incorporated herein
by reference to Exhibit 4.01 of the Registrant's Form 8-K
filed with the Securities and Exchange Commission on
September 15, 1994, Commission File No. 0-22718).
4.03 Registrant's Bylaws, as amended (incorporated herein by
reference to Exhibit 4.02 of the Registrant's Form 8-K filed
with the Securities and Exchange Commission on September 15,
1994, Commission File No. 0-22718).
4.04 Rights Agreement dated September 12, 1994 between the
Registrant and Norwest Bank Minnesota, N.A. as Rights Agent,
which includes as exhibits thereto the form of rights
certificate and the summary of rights to purchase preferred
stock (incorporated herein by reference to Exhibit 4.03 of
the Registrant's Form 8-K filed with the Securities and
Exchange Commission on September 15, 1994, Commission File
No. 0-22718).
4.05 Registrant's 1993 Equity Incentive Plan, as amended
(incorporated herein by reference to Exhibit 10.02 of
Registrant's Form 10-K filed with the Securities and
Exchange Commission by Registrant for the year ended
December 31, 1996, Commission File No. 0-22718).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Coopers & Lybrand L.L.P., independent
accountants.
24.01 Power of Attorney (see page 7).
4
<PAGE>
ITEM 9. UNDERTAKINGS.
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;
(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. Notwithstanding the foregoing, any
increase or decrease in the 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 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) above do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
5
<PAGE>
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions discussed in Item 6 hereof, or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities 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 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 hereby,
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 Securities Act and will be governed by the final adjudication
of such issue.
6
<PAGE>
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 Minneapolis, State of Minnesota, on the 9th day of
September, 1997.
RACOTEK, INC.
By: Michael A. Fabiaschi
------------------------------
Michael A. Fabiaschi,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Michael A. Fabiaschi and David J. Maenke,
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 and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8, and to file the same with all
exhibits thereto and all 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 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 dates indicated.
Signature Title Date
--------- ----- ----
PRINCIPAL EXECUTIVE OFFICER
AND DIRECTOR:
Michael A. Fabiaschi
- ---------------------- President, Chief Executive September 9, 1997
Michael A. Fabiaschi Officer and a Director
PRINCIPAL FINANCIAL
OFFICER AND PRINCIPAL
ACCOUNTING OFFICER:
David J. Maenke
- ---------------------- Chief Financial Officer September 9, 1997
David J. Maenke and Corporate Secretary
7
<PAGE>
Signature Title Date
--------- ----- ----
ADDITIONAL DIRECTORS:
Yuval Almog
- ---------------------- Chairman of the Board of September 9, 1997
Yuval Almog Directors
Joseph B. Costello
- ---------------------- Director September 11, 1997
Joseph B. Costello
Dixon R. Doll
- ---------------------- Director September 9, 1997
Dixon R. Doll
Donald L. Lucas
- ---------------------- Director September 9, 1997
Donald L. Lucas
- ---------------------- Director September __, 1997
James L. Osborn
8
<PAGE>
EXHIBIT INDEX
Sequentially
Exhibit No. Description Numbered Page
- ----------- ----------- -------------
4.1 Registrant's Third Amended and Restated Certificate of
Incorporation (incorporated herein by reference to the
Exhibit 3.01 of the Registrant's Form 10-K filed with
the Securities and Exchange Commission by Registrant for
the year ended December 31, 1993, Commission File
No. 0-22718).
4.2 Registrant's Certificate of Designation (incorporated
herein by reference to Exhibit 4.01 of the Registrant's
Form 8-K filed with the Securities and Exchange
Commission on September 15, 1994, Commission File
No. 0-22718)
4.03 Registrant's Bylaws, as amended (incorporated herein by
reference to Exhibit 4.02 of the Registrant's Form 8-K
filed with the Securities and Exchange Commission on
September 15, 1994, Commission File No. 0-22718)
4.04 Rights Agreement dated September 12, 1994 between the
Registrant and Norwest Bank Minnesota, N.A. as Rights
Agent (incorporated herein by reference to Exhibit 4.03
of the Registrant's Form 8-K filed with the Securities
and Exchange Commission on September 15, 1994,
Commission File No. 0-22718)
4.05 Registrant's 1993 Equity Incentive Plan, as amended
(incorporated by reference to Exhibit 10.02 of the
Registrant's Form 10-K filed with the Securities and
Exchange Commission by Registrant for the year ended
December 31, 1995, Commission File No. 0-22718)
5.01 Opinion of Fenwick & West LLP . . . . . . . . . . . . . . . . . 11
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01)
23.02 Consent of Coopers & Lybrand L.L.P., independent
accountants . . . . . . . . . . . . . . . . . . . . . . . . . . 14
24.01 Power of Attorney (see page 7)
<PAGE>
EXHIBIT 5.01
September 9, 1997
Racotek, Inc.
7301 Ohms Lane, Suite 200
Minneapolis, MN 55439
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "REGISTRATION STATEMENT") to be filed by you with the Securities and
Exchange Commission (the "COMMISSION") on or about September 11, 1997 in
connection with the registration under the Securities Act of 1933, as
amended, of an aggregate of 1,000,000 shares of your Common Stock (the
"STOCK"), subject to issuance by you (a) upon the exercise of stock options
granted or to be granted by you under your 1993 Equity Incentive Plan, as
amended (the "1993 PLAN"), (b) pursuant to stock purchase agreements entered
into or to be entered into under the 1993 Plan, and (c) pursuant to stock
bonus agreements entered into or to be entered into under the 1993 Plan. In
rendering this opinion, we have examined the following:
(1) your registration statement on Form S-1 (File Number 33-70728) filed
with and declared effective by the Commission on December 9, 1993,
together with the Exhibits filed as a part thereof, including without
limitation, the 1993 Plan as amended through that date, and related
stock option grant and exercise agreements;
(2) your registration statement on Form 8-A (File Number 0-22718) filed
with the Commission on October 26, 1993, together with the order of
effectiveness issued by the Commission therefor on December 9, 1993;
(3) the Registration Statement, together with the Exhibits filed as a
part thereof;
(4) the Prospectuses prepared in connection with the Registration
Statement;
(5) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your minute
books, that are in our possession;
(6) the stock records that you have provided to us (consisting of a list
of stockholders dated September 9, 1997, and an oral update through
September 9, 1997, both from your transfer agent, Norwest Bank
Minnesota, National Association, and a list of option and warrant
holders of your capital stock that was prepared by you and dated
September 9, 1997); and
(7) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and other
representations.
<PAGE>
September 9, 1997
Page 2
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the legal capacity of all natural persons executing the same, the
lack of any undisclosed terminations, modifications, waivers or amendments to
any documents reviewed by us and the due execution and delivery of all
documents where due execution and delivery are prerequisites to the
effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from records
included in the documents referred to above. We have made no independent
investigation or other attempt to verify the accuracy of any of such
information or to determine the existence or non-existence of any other
factual matters; HOWEVER, we are not aware of any facts that would lead us to
believe that the opinion expressed herein is not accurate.
Based upon the foregoing, it is our opinion that the 1,000,000 shares of
Stock that may be issued and sold by you (a) upon the exercise of stock
options granted or to be granted under the 1993 Plan, (b) pursuant to stock
purchase agreements entered into or to be entered into under the 1993 Plan,
and (c) pursuant to stock bonus agreements entered into or to be entered into
under the 1993 Plan, when issued and sold in accordance with the applicable
plan and stock option or purchase agreements to be entered into thereunder,
and in the manner referred to in the relevant Prospectus associated with the
Registration Statement, will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and is intended solely for the
your use as an exhibit to the Registration Statement for the purpose of the
above sale of the Stock and is not to be relied upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: Gordon K. Davidson
-----------------------------
Gordon K. Davidson
<PAGE>
EXHIBIT 23.02
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion by reference in this registration statement
on Form S-8 of our reports dated January 14, 1997, on our audits
of the financial statements and financial statement schedule of Racotek, Inc.
COOPERS & LYBRAND L.L.P.
Minneapolis, Minnesota
September 11, 1997
