-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VuyhpLlVswAf6ZayHiWuasdULPxU0IXHdhzZoHC2wazLJ6J5D27wAAY7tvArqiG9 Ra9G8NW7drHK7X+zaGCxjw== 0001047469-98-032405.txt : 19980824 0001047469-98-032405.hdr.sgml : 19980824 ACCESSION NUMBER: 0001047469-98-032405 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980821 EFFECTIVENESS DATE: 19980821 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: DIGI INTERNATIONAL INC CENTRAL INDEX KEY: 0000854775 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER COMMUNICATIONS EQUIPMENT [3576] IRS NUMBER: 411532464 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: SEC FILE NUMBER: 333-57869 FILM NUMBER: 98695607 BUSINESS ADDRESS: STREET 1: 11001 BREN ROAD EAST CITY: MINNETONKA STATE: MN ZIP: 55343 BUSINESS PHONE: 6129123444 MAIL ADDRESS: STREET 1: 11001 BREN ROAD EAST CITY: MINNETONKA STATE: MN ZIP: 55343 S-8 POS 1 S-8 POS As filed with the Securities and Exchange Commission on August 21, 1998 Registration No. 333-57869 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D. C. 20549 ---------------------- AMENDMENT NO. 1 TO 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 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 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) 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 director or officer of the corporation, or his service, at the corporation's request, as a director, officer, employee or II-1 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 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. Non-Officer Stock Option Plan.* 5.1 Opinion of Faegre & Benson LLP as to the legality of the shares being registered. II-2 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.*
*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. (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 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 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 ------------------------------------------ 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. Signature Title - --------- ----- /s/ Jerry A. Dusa President, Chief Executive Officer and - ------------------------------ Director (Principal Executive Officer) Jerry A. Dusa /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 INDEX TO EXHIBITS
Method Exhibit Description of Filing ------- ----------- --------- Incorporated 4.1 Restated Certificate of Incorporation of the Company . . . . . . . . . by Reference Incorporated 4.2 Amended and Restated By-Laws of the Company. . . . . . . . . . . . . . by Reference Previously 4.3 Digi International Inc. Non-Officer Stock Option Plan. . . . . . . . . Filed 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 PricewaterhouseCoopers LLP. . . . . . . . . . . . . . . . . Electronically Filed 23.3 Consent of Ernst & Young LLP . . . . . . . . . . . . . . . . . . . . . Electronically Previously 24 Powers of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . Filed
II-6 EX-5.1 2 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 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 ---------------------------------------- FAEGRE & BENSON LLP EX-15 3 EXHIBIT 15 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. 333-57869). 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 EX-23.2 4 EXHIBIT 23.2 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. 333-57869) 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 EX-23.3 5 EXHIBIT 23.3 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 Non-Officer Stock Option Plan 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 -----END PRIVACY-ENHANCED MESSAGE-----