-----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, STfz37u5SKeQdqwZE8xdZHuz0hmf2oEYw05YesCCM2m2mQnNN3A5LR23JBc5+3C6 x9ZStLqta4qs1/fC8GcO7A== 0000912057-97-030735.txt : 19970918 0000912057-97-030735.hdr.sgml : 19970918 ACCESSION NUMBER: 0000912057-97-030735 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970915 EFFECTIVENESS DATE: 19970915 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: RACOTEK INC CENTRAL INDEX KEY: 0000883741 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER COMMUNICATIONS EQUIPMENT [3576] IRS NUMBER: 411636021 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-35595 FILM NUMBER: 97680193 BUSINESS ADDRESS: STREET 1: 7301 OHMS LANE STE 200 CITY: MINNEAPOLIS STATE: MN ZIP: 55439 BUSINESS PHONE: 6128329800 MAIL ADDRESS: STREET 1: 7301 OHMS LANE STREET 2: STE 200 CITY: MINNEAPOLIS STATE: MN ZIP: 55439 S-8 1 FORM S-8 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
- ------------------------------------------------------------------------------------------------------------------ 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 - ------------------------------------------------------------------------------------------------------------------ Common Stock, par value $0.01 1,000,000 (1) $2.41 (2) $2,406,250 $729 - ------------------------------------------------------------------------------------------------------------------
(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. 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 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 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 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 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 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 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 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) EX-5.01 2 EXHIBIT 5.01 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. 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 EX-23.2 3 EXHIBIT 23.2 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 -----END PRIVACY-ENHANCED MESSAGE-----