S-8 1 c64713s-8.txt REGISTRATION STATEMENT 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 22, 2001 REGISTRATION NO. 333-______ ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------------------- ACTIVE IQ TECHNOLOGIES, INC. (Exact name of registrant as specified in its charter) Minnesota 41-2004369 (State or other jurisdiction of 601 Carlson Parkway, Suite 1550 (I.R.S. Employer Incorporation or organization) Minnetonka, Minnesota 55305 Identification No.) Telephone (952) 449-5000 Facsimile (952) 449-5001 (Address of principal executive offices)
------------------------------- 2000 DIRECTOR STOCK OPTION PLAN (Full title of the Plans) ------------------------------- Kenneth W. Brimmer Chairman of the Board and Chief Executive Officer Active IQ Technologies, Inc. 601 Carlson Parkway Minnetonka, Minnesota 55305 Telephone (952) 449-5000 (Name and address of agent for service) Copy to: William M. Mower Maslon Edelman Borman & Brand, LLP 3300 Wells Fargo Center 90 South 7th Street Minneapolis, Minnesota 55402 Telephone: (612) 672-8200 Facsimile: (612) 672-8397 ------------------------------------ CALCULATION OF REGISTRATION FEE
=============================================================================================================================== Proposed Proposed Maximum Maximum Title of Amount to be Offering Price Aggregate Amount of Securities to be Registered Registered Per Share (1) Offering Price (1) Registration Fee ------------------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share...... 250,000 $4.93 $1,232,500 $308.13 ===============================================================================================================================
(1) Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c) and (h) and based upon the average low and high prices of the Registrant's Common Stock on August 15, 2001, as reported on the Nasdaq Small Cap Market. 2 PART I Pursuant to the Note to Part I of Form S-8, the information required by Items 1 and 2 of Form S-8 is not filed as a part of this Registration Statement. 1 3 PART II Item 3. Incorporation of Documents by Reference. The following documents filed with the Securities and Exchange Commission are hereby incorporated by reference herein: (a) Annual Report on Form 10-K for the fiscal year ended December 31, 2000; (b) Definitive Proxy Statement filed on February 14, 2001; (c) Quarterly Reports on Form 10-Q for the quarters ended March 31, 2001 and June 30, 2001; (d) Current report on Form 8-K filed on May 14, 2001; (e) Current report on Form 8-K filed on June 15, 2001; (f) Current Report on Form 8-K/A filed on August 13, 2001; and (g) The description of the Company's Common Stock contained in the Company's Registration Statement on Form S-3 (File No. 333-68088) filed on August 21, 2001. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a 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. Under Article 6 of the Company's Bylaws, the Company indemnifies its directors and officers to the fullest extent permitted by Minnesota Statutes Section 302A.521. Section 302A.521 requires the Company to indemnify a person made or threatened to be made a party to a proceeding, by reason of the former or present official capacity of the person with respect to the Company, against judgments, penalties, fines, including without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlement, and reasonable expenses, including attorneys' fees and disbursements, if, with respect to the acts or omissions of the person complained of in the proceeding, such person (1) has not been indemnified by another organization or employee benefit plan for the same judgments, penalties, fines, including without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys' fees and disbursements, incurred by the person in connection with the proceeding with respect to the same acts or omissions; (2) acted in good faith; (3) received no improper personal benefit, and statutory procedure has been followed in the case of any conflict of interest by a director; (4) in the case of a criminal proceeding, had no reasonable cause to believe the conduct was unlawful; and (5) in the case of acts or omissions occurring in the person's performance in the official capacity of director or, for a person not a director, in the official capacity of officer, committee member, employee or agent, reasonably believed that the conduct was in the best interests of the Company, or in the case of performance by a director, officer, employee or agent of the Company as a director, officer, partner, trustee, employee or agent of another organization or II-1 4 employee benefit plan, reasonably believed that the conduct was not opposed to the best interests of the Company. In addition, Section 302A.521, subd. 3 requires payment by the Company, upon written request, of reasonable expenses in advance of final disposition in certain instances. A decision as to required indemnification is made by a majority of the disinterested Board of Directors present at a meeting at which a disinterested quorum is present, or by a designated committee of disinterested directors, by special legal counsel, by the disinterested shareholders, or by a court. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Securities Act") may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act, and is therefore unenforceable. The Company also maintains a director and officer insurance policy to cover the Company, its directors and its officers against certain liabilities. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits.
Exhibit ------- 4.1 The Company's 2000 Director Stock Option Plan. 5.1 Opinion and Consent of Maslon Edelman Borman & Brand, LLP as to the legality of the securities being registered 23.1 Consent of Maslon Edelman Borman & Brand, LLP (included in Exhibit 5.1) 23.2 Consent of Arthur Andersen LLP.
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; (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, Form S-8 or Form F-3, and 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 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 II-2 5 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 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. (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 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 connected 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. II-3 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 and the State of Minnesota, on the 22nd day of August, 2001. ACTIVE IQ TECHNOLOGIES, INC. By: /s/ Kenneth W. Brimmer -------------------------------------- Kenneth W. Brimmer, Chairman of the Board, and Chief Executive Officer POWER OF ATTORNEY Each person whose signature to this Registration Statement appears below hereby constitutes and appoints Kenneth W. Brimmer and D. Bradly Olah, and each of them, as his or her true and lawful attorney-in-fact and agent, with full power of substitution, to sign on his or her behalf individually and in the capacity stated below and to perform any acts necessary to be done in order to file all amendments to this Registration Statement and any and all instruments or documents filed as part of or in connection with this Registration Statement or the amendments thereto and each of the undersigned does hereby ratify and confirm all that said attorney-in-fact and agent, or his substitutes, shall do or cause to be done by virtue hereof. The undersigned also grants to said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted. This Power of Attorney shall remain in effect until revoked in writing by the undersigned. 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:
NAME TITLE DATE ---- ----- ---- /s/ Kenneth W. Brimmer Chairman of the Board, Chief Executive Officer and August 22, 2001 ------------------------------------------ Chief Financial Officer (Principal Executive Officer Kenneth W. Brimmer and Principal Financial Officer) /s/ D. Bradly Olah President and Chief Operating Officer August 22, 2001 ------------------------------------------ D. Bradly Olah /s/ Mark D. Dacko Controller (Principal Accounting Officer) August 22, 2001 ------------------------------------------ Mark D. Dacko /s/ Ronald E. Eibensteiner Director August 22, 2001 ------------------------------------------ Ronald E. Eibensteiner Director August 22, 2001 ------------------------------------------ Steven Levine Director August 22, 2001 ------------------------------------------ Steven A. Weiss /s/ Ken Kaufman Director August 22, 2001 ------------------------------------------ Ken Kaufman
II-4 7 INDEX TO EXHIBITS
EXHIBIT DESCRIPTION ------- ----------- 4.1 The Company's 2000 Director Stock Option Plan 5.1 Opinion of Maslon Edelman Borman & Brand, LLP as to the legality of the securities being registered 23.1 Consent of Maslon Edelman Borman & Brand, LLP (included in Exhibit 5.1) 23.2 Consent of Arthur Andersen LLP