As filed with the Securities and Exchange Commission on February 13, 2002
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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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)
NetSilicon, Inc. Amended And Restated 1998 Incentive And Non-Qualified Stock
Option Plan
(Full title of the plan)
Subramanian Krishnan
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: (952) 912-3444
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CALCULATION OF REGISTRATION FEE
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Proposed
Proposed maximum
Title of Amount maximum aggregate Amount of
securities to to be offering price offering registration
be registered registered (1) per share price (3) fee
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Common Stock, 2,493,891
$.01 par value shares $(2) $ 16,010,781 $ 1,473
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(1) Pursuant to the Agreement and Plan of Merger dated as of October 30,
2001 (the "Merger Agreement"), among the Registrant, Dove Sub Inc., a
Delaware corporation formed and wholly owned by the Registrant ("Merger
Sub"), and NetSilicon, Inc., a Massachusetts corporation
("NetSilicon"), NetSilicon was merged with and into Merger Sub on
February 13, 2002. In accordance with the Merger Agreement, 3,836,754
outstanding options under NetSilicon's Amended and Restated 1998
Incentive and Non-Qualified Stock Option Plan have been assumed by the
Company and are being replaced with options to acquire in the
aggregate, under the same terms and conditions as were applicable
under such stock option plan, 2,493,891 shares of the Company's common
stock, par value $.01 per share. No further options will be issued
under such stock option plan.
(2) Prices range from $3.08 to $18.00 per share, with a weighted average
of $6.42 per share.
(3) Calculated under Rule 457(h)(1).
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, 2001, 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 the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the corporation's request, as a director, officer, employee
or agent of another corporation or other enterprise, against expenses (including
attorneys' fees) that are actually and reasonably incurred by the person
("Expenses"), and judgments, fines and amounts paid in settlement that are
actually and reasonably incurred by the person, in connection with the defense
or settlement of such action, provided that the person acted in good faith and
in a manner the person 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 the person acted in good
faith and in a manner the person 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 or officer
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)).
2
4.2 Second Amended and Restated By-Laws of the
Company (incorporated by reference to
Exhibit 3(b) to the Company's Form 10-K for
the year ended September 30, 2001 (File No.
0-17972)).
4.3 NetSilicon, Inc. Amended and Restated 1998
Incentive and Non-Qualified Stock Option
Plan.
5.1 Opinion of Faegre & Benson LLP.
10.1 Agreement and Plan of Merger, dated as of
October 30, 2001, among the Company, Dove
Sub Inc. and NetSilicon, Inc. (incorporated
by reference to Annex A to the Company's
Amendment No. 1 to Form S-4 filed on January
4, 2002 (Reg. No. 333-74118)).
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.
24.1 Powers of Attorney.
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.
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(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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Minnetonka, State of Minnesota, on February 13,
2002.
DIGI INTERNATIONAL INC.
By /s/ Joseph T. Dunsmore
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Joseph T. Dunsmore
President, Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on February 13, 2002.
Signature Title
/s/ Joseph T. Dunsmore President, Chief Executive Officer and Director
--------------------------- (Principal Executive Officer)
Joseph T. Dunsmore
/s/ Subramanian Krishnan Senior Vice President, Chief Financial Officer
--------------------------- and Treasurer
Subramanian Krishnan (Principal Financial and Accounting Officer)
Joseph T. Dunsmore )
Kenneth E. Millard )
Mykola Moroz ) A majority of the Board of Directors*
Michael S. Seedman )
David Stanley )
Bradley J. Williams )
* Joseph T. Dunsmore, 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/ Joseph T. Dunsmore
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Joseph T. Dunsmore, Attorney in Fact
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INDEX TO EXHIBITS
Method
Exhibit Description of Filing
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Incorporated by
4.1 Restated Certificate of Incorporation of the Company(1).......................... Reference
Incorporated by
4.2 Second Amended and Restated By-Laws of the Company(2)............................ Reference
4.3 NetSilicon, Inc. Amended and Restated 1998 Incentive and Filed
Non-Qualified Stock Option Plan.................................................. Electronically
Filed
5.1 Opinion of Faegre & Benson LLP................................................... Electronically
10.1 Agreement and Plan of Merger, dated as of October 30, 2001, among the Company, Incorporated by
Dove Sub Inc. and NetSilicon, Inc. (3)........................................... Reference
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
24.1 Powers of Attorney............................................................... Electronically
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(1) 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).
(2) Incorporated by reference to Exhibit 3(b) to the Company's Form 10-K
for the year ended September 30, 2001 (File No. 0-17972).
(3) Incorporated by reference to Annex A to the Company's Amendment No. 1
to Form S-4 filed on January 4, 2002 (Reg. No. 333-74118).
6