Document


As filed with the Securities and Exchange Commission on September 28, 2018
Registration No. 333-
 
 
 
 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________

FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
_______________

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Daktronics, Inc.
(Exact name of Registrant as specified in its charter)
_______________

South Dakota (State or other jurisdiction of
incorporation or organization)
 
46-0306862 (I.R.S. Employer Identification No.)
 
 
 
201 Daktronics Drive
Brookings, SD 57006
(Address of principal executive offices)
_______________

Daktronics, Inc. 2002 Employee Stock Purchase Plan
(Full title of the plan)
_______________
Sheila M. Anderson
Daktronics, Inc
201 Daktronics Drive
Brookings, SD 57006
(Name and address of agent for service)
(605) 692-0200
(Telephone number, including area code, of agent for service)
_______________

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.





Large accelerated filer o
Accelerated filer x
Non-accelerated filer o
Smaller reporting company o
 
Emerging growth company o

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
_______________

CALCULATION OF REGISTRATION FEE
 
 
 
 
 
Title of Securities to be Registered
Amount to be Registered (1)
Proposed Maximum Offering Price Per Share (2)
Proposed Maximum Aggregate Offering Price (2)
Amount of Registration Fee
Common Stock, no par value (3)
1,500,000 shares
$
7.89

$
11,835,000

$
1,473.46

 
 
 
 
 

(1) This Registration Statement shall also cover any additional shares of common stock which become issuable under the Daktronics, Inc. 2002 Employee Stock Purchase Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of common stock of Daktronics, Inc.

(2) Pursuant to Rule 457(c) under the Securities Act of 1933, the offering price is equal to the average of the high and low sale prices of the common stock as of September 26, 2018 as reported on The NASDAQ Global Select Market.

(3) Each share of common stock includes one common share purchase right.






TABLE OF CONTENTS

Part I - Information Required in the Section 10(a) Prospectus
Item 1. Plan Information
Item 2. Registrant Information and Employee Plan Annual Information

Part II - Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
Item 4. Description of Securities
Item 5. Interests of Named Experts and Counsel
Item 6. Indemnification of Directors and Officers
Item 7. Exemption from Registration Claimed
Item 8. Exhibits
Item 9. Undertakings

Signatures

Exhibit Index






PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Pursuant to Rule 428(b)(1) under the Securities Act of 1933, as amended, the document containing the information specified in Part I of Form S-8 will be distributed to persons who receive shares of the Company’s no par value common stock under the Daktronics, Inc. 2002 Employee Stock Purchase Plan. Each disclosure document constitutes a Section 10(a) prospectus and is incorporated by reference in this Registration Statement, but it is not being filed with the Securities and Exchange Commission (the “SEC”) either as part of this Registration Statement or as a prospectus or prospectus supplement.

Item 1. Plan Information.

Not filed with this Registration Statement.

Item 2. Registrant Information and Employee Plan Annual Information.

Not filed with this Registration Statement.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents, which have been filed with the SEC by Daktronics, Inc. (hereinafter “we,” “us,” “our” or the “Company”), are incorporated by reference in this registration statement:

a. The description of our common stock contained in our Registration Statement on Form S-1 filed with the SEC on December 3, 1993 under the heading “Description of Securities – Common Stock”, as amended (File No. 33-72466);

b. Our Annual Report on Form 10-K for the fiscal year ended April 28, 2018 filed with the SEC on June 8, 2018;

c. Our Proxy Statement filed with the SEC on July 17, 2018;

d. Our Quarterly Report on Form 10-Q for the fiscal quarter ended July 28, 2018 filed with the SEC on August 24, 2018; and

e. Our Current Reports on Form 8-K filed with the SEC on August 14, 2018, September 7, 2018 and September 10, 2018.

In addition, all reports and definitive proxy or information statements filed (but not furnished) by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") after the date of the initial filing of this registration statement and before the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all such securities then remaining to be sold (excluding, however, any portion of such documents not deemed to be “filed” with the SEC pursuant to the rules of the SEC) shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the date of filing 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 in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement.

We will promptly provide without charge to each person to whom a prospectus is delivered a copy of any or all information that has been incorporated herein by reference (not including exhibits to the information that is incorporated by reference unless such exhibits are specifically incorporated by reference into such information) upon the written or oral request of such person directed to Ms. Sheila Anderson, our Chief Financial Officer, at our principal offices, 201 Daktronics Drive, Brookings, South Dakota 57006, or by telephone at (605) 692-0200.

Item 4. Description of Securities.

The shares of our common stock offered pursuant to this registration statement are registered under Section 12(g) of the Exchange Act. The description of our common stock is incorporated by reference pursuant to Item 3.a. above.






Item 5. Interests of Named Experts and Counsel.

Not applicable.

Item 6. Indemnification of Directors and Officers.

Article 8 of our Articles of Incorporation and Article VI of our Bylaws provide that the Company shall indemnify its officers and directors to the fullest extent authorized or permitted by the South Dakota Business Corporation Act (“SDBCA”). Section 47‑1A‑851 and Section 47‑1A‑856(1) of the SDBCA provide that the Company may indemnify its officers and directors against liability incurred in connection with proceedings in which such persons are parties by reason of being an officer or director of the Company if they (1) acted in good faith; (2) reasonably believed: (a) in the case of conduct in an official capacity, that the conduct was in the best interests of the Company, and (b) in all other cases, that the conduct was at least not opposed to the best interests of the Company; and (3) in the case of any criminal proceeding, had no reasonable cause to believe that the conduct was unlawful. This indemnification may be available for any liabilities arising in connection with this offering. In addition, Section 47‑1A‑856(2)(b) of the SDBCA permits the Company to indemnify an officer of the Company who is a party to a proceeding by reason of being an officer of the Company against liability, except for liability arising out of conduct that constitutes receipt of a financial benefit to which the officer is not entitled, an intentional infliction of harm on the Company or its shareholders, or an intentional violation of criminal law. Section 47‑1A‑857 of the SDBCA permits the Company to purchase and maintain insurance on behalf of its officers and directors against any liability which may be asserted against, or incurred by, such persons in their capacities as officers and directors of the Company, whether or not the Company would have power to indemnify or advance expenses to the person against the same liability under the provisions of the SDBCA. The Company maintains officers’ and directors’ liability insurance for the benefit of its officers and directors.

Article VI of our Bylaws and Article 8 of our Articles of Incorporation also provide that the Company may indemnify other persons, for such expenses and liabilities, in such manner and under such circumstances, as the Board of Directors may determine from time to time.

Section 7.3 of Article 7 of our Articles of Incorporation provides that the liability of our directors to the Company or its shareholders shall be limited to the fullest extent permitted by the SDBCA. Section 47‑1A‑202.1(4) of the SDBCA permits a corporation to provide in its articles of incorporation that its directors will not be liable to the corporation or its shareholders for monetary damages for any action taken, or any failure to take any action, as directors, except for liability for receipt of a financial benefit by a director to which the director is not entitled; an intentional infliction of harm on the corporation or its shareholders; a violation of Section 47‑1A‑833 of the SDBCA (relating to unlawful distributions); or an intentional violation of criminal law.

Under Section 47‑1A‑831 of the SDBCA, the Company’s directors are not liable to it or its shareholders for any decision to take or not to take action, or any failure to take any action, as a director, unless the party asserting liability establishes that (1) the indemnification provisions in the Company’s Articles of Incorporation and the SDBCA do not preclude such liability and (2) the challenged conduct consisted or was the result of (a) action not in good faith; (b) a decision (i) which the director did not reasonably believe to be in the Company’s best interests or (ii) as to which the director was not properly informed; (c) a lack of objectivity due to the director’s familial, financial, or business relationship with, or a lack of independence due to the director’s domination or control by, another person having a material interest in the challenged conduct (i) which relationship or which domination or control could reasonably be expected to have affected the director’s judgment respecting the challenged conduct in a manner adverse to the Company and (ii) after a reasonable expectation to such effect has been established, the director has not established that the challenged conduct was reasonably believed by the director to be in the best interests of the Company; (d) a sustained failure of the director to devote attention to ongoing oversight of the business and affairs of the Company, or a failure to devote timely attention, by making, or causing to be made, appropriate inquiry, when particular facts and circumstances of significant concern materialize that would alert a reasonably attentive director to the need therefor; or (e) receipt of a financial benefit to which the director was not entitled or any other breach of the director’s duties to deal fairly with the Company and its shareholders that is actionable under applicable law.

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.

The exhibits to this Registration Statement on Form S-8 are described on the Exhibit Index to this registration statement, which is incorporated herein by reference.






Item 9. Undertakings.

(a) Rule 415 Offering.

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. 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 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 20 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 described 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) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission 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 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; and

(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) Filings Incorporating Subsequent Exchange Act Documents by Reference.

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 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.

(h) Request For Acceleration of Effective Date or Filing of Registration Statement Becoming Effective Upon Filing.

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 in connection 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.






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 Brookings, State of South Dakota on September 28, 2018.

 
Daktronics, Inc.
 
 
 
By: /s/ Sheila M. Anderson
 
Sheila M. Anderson, Chief Financial Officer
 
(Principal Financial Officer and
 
Principal Accounting Officer)










POWER OF ATTORNEY

Each person whose signature appears below hereby constitutes and appoints Reece A. Kurtenbach and Sheila M. Anderson, each of whom may act individually, as such person’s true and lawful attorney-in-fact and agent with full power of substitution and resubstitution for such person and in such person’s name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other 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 such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agent, or his 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
 
 
 
 
 
/s/ Reece A. Kurtenbach
 
President, Chief Executive Officer and
 
September 28, 2018
Reece A. Kurtenbach
 
Director (principal executive officer)
 
 
 
 
 
 
 
/s/ Byron J. Anderson
 
Director
 
September 28, 2018
Byron J. Anderson
 
 
 
 
 
 
 
 
 
/s/ Robert G. Dutcher
 
Director
 
September 28, 2018
Robert G. Dutcher
 
 
 
 
 
 
 
 
 
/s/ Nancy D. Frame
 
Director
 
September 28, 2018
Nancy D. Frame
 
 
 
 
 
 
 
 
 
/s/ James B. Morgan
 
Director
 
September 28, 2018
James B. Morgan
 
 
 
 
 
 
 
 
 
/s/ Kevin P. McDermott
 
Director
 
September 28, 2018
Kevin P. McDermott
 
 
 
 
 
 
 
 
 
/s/ John P. Friel
 
Director
 
September 28, 2018
John P. Friel
 
 
 
 
 
 
 
 
 
/s/ Sheila M. Anderson
 
Chief Financial Officer (principal financial
 
September 28, 2018
Sheila M. Anderson
 
officer and principal accounting officer)
 
 






Exhibit Index
Exhibit No.
 
Description
4.1

 
The description of the Company’s common stock (incorporated by reference to the Company’s
Registration Statement on Form S-1 filed with the SEC on December 3, 1993 under the heading
“Description of Securities – Common Stock,” as amended (File No. 33-72466));
 
 
 

 
 
 
 

 
 
 
 

 
 
 
 
23.3

 
Consent of Winthrop & Weinstine, P.A. (included in its opinion filed as Exhibit 5.1).
 
 
 
24.1

 
Power of Attorney (included as part of signature page).
 
 
 


Exhibit



Exhibit 5.1
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September 28, 2018
Michele D. Vaillancourt
Direct Dial: (612) 604-6681
Direct Fax: (612) 604-6881
mvaillancourt@winthrop.com

Daktronics, Inc.
201 Daktronics Drive
Brookings, South Dakota 57006

Re:    Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Daktronics, Inc., a South Dakota corporation (the “Company”), in connection with the preparation of the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by the Company on September 28, 2018 with the U.S. Securities and Exchange Commission (the “Commission”) relating to the registration under the Securities Act of 1933, as amended (the “Act”), of the offer and sale of 1,500,000 shares of the Company’s common stock, no par value (the “Shares”), under the Daktronics, Inc. 2002 Employee Stock Purchase Plan (the “Plan”).
In rendering the opinions set forth below, we have examined originals or copies certified or otherwise identified to our satisfaction of such documents and corporate and public records, and we have made such examination of law, as we have deemed necessary or appropriate as a basis for the opinion hereinafter expressed. The documents examined include, without limitation: (i) the Registration Statement; (ii) the Company’s Amended and Restated Articles of Incorporation (the “Articles of Incorporation”) as certified as of September 25, 2018 by the Secretary of State of the State of South Dakota; (iii) the Company’s Restated Bylaws (the “Bylaws,” and together with the Articles of Incorporation, the “Organizational Documents”); (iv) the Officer’s Reliance Certificate dated September 28, 2018, including all exhibits thereto; (v) certain resolutions of the Board of Directors of the Company (the “Board of Directors”) relating to the Registration Statement and related matters; and (vi) a Certificate of Good Standing dated as of September 25, 2018 issued by the Secretary of State of the State of South Dakota. In addition, we have made such legal and (except as limited below) such factual examinations and inquiries as deemed necessary or appropriate for the purpose of this opinion.
We have assumed for purposes of rendering the opinions set forth herein, without any verification by us, the genuineness of all signatures, the legal capacity of all natural persons to execute and deliver documents, the authenticity and completeness of documents submitted to us as originals, the completeness and conformity with authentic original documents of all documents submitted to us as copies, and that all documents, books and records made available to us by the Company are accurate and complete.
For purposes of this opinion letter, we have also assumed that:
(a)the Registration Statement and any amendments thereto (including any post-effective amendments) shall have become and remain effective under the Act, and no stop order with respect thereto shall have been issued;

(b)at the time of the offer and sale of the Shares, as described in the Registration Statement, there shall be a sufficient number of shares of common stock of the Company authorized and unissued under the Articles of Incorporation as amended and then in effect and not otherwise reserved for issuance;






(c)at the time of the offer and sale of the Shares, the Company shall validly exist and shall be in good standing under the laws of the State of South Dakota and shall have the necessary corporate power for making the offer and sale;

(d)certificates representing the Shares shall have been duly executed, countersigned, registered and delivered or, if uncertificated, valid book-entry notations shall have been made in the share or other register of the Company, in each case in accordance with the Organizational Documents and the Plan, against payment therefor in an amount of the consideration determined in accordance with the Plan and as permitted or required under the South Dakota Business Corporation Act (the “SDBCA”), in accordance with the provisions of the Plan and any applicable definitive purchase agreement, sales agreement, subscription agreement, underwriting agreement, or similar agreement, or any applicable option, warrant or other rights to purchase shares of the Company’s common stock currently outstanding, all as approved by the Company, the Board of Directors, or, if required, the Company’s shareholders, and that the Board of Directors or the Company’s shareholders, as applicable, determined that such consideration was adequate; and

(e)the Organizational Documents shall be in full force and effect and shall not have been amended, restated, supplemented or otherwise altered, and there shall be no authorization of any such amendment, restatement, supplement or alteration, in each case since the date hereof.

Based upon the foregoing and subject to the qualifications, assumptions and limitations contained herein, we are of the opinion that the Shares are duly authorized and will be validly issued, fully paid and non-assessable.
The opinion set forth above is subject to the following exceptions, limitations and qualifications:
We express no opinion as to: (a) the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors; (b) the effect of general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought; (c) the unenforceability under certain circumstances under law or court decisions of provisions providing for the indemnification of, or contribution to, a party with respect to a liability where such indemnification or contribution is contrary to public policy; or (d) the effect of the exercise of judicial discretion, whether in a proceeding in equity or at law.
This opinion is being furnished at the request of the Company and in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Act in connection with the Registration Statement and is not to be used, quoted or otherwise referred to for any other purpose without our prior written consent. This opinion does not constitute such prior written consent.
We are members of the Bar of the State of Minnesota. We express no opinion as to the effect of any laws other than the laws of the State of Minnesota, the SDBCA and the federal laws of the United States of America, each as in effect on the date hereof.
This opinion speaks only at and as of its date, it is based solely on the facts and circumstances known to us at and as of such date, and it is limited to the matters expressly set forth herein. No opinion is to be implied or may be inferred beyond the matters expressly stated. We assume no obligation to revise or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in fact or law that may hereafter occur.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not thereby concede that our firm is within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

Very truly yours,

/s/ Winthrop & Weinstine, P.A.

WINTHROP & WEINSTINE, P.A.




Exhibit


Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated June 8, 2018, relating to the consolidated financial statements and financial statement schedule of Daktronics, Inc. and subsidiaries and the effectiveness of Daktronics, Inc. and subsidiaries’ internal control over financial reporting, appearing in the Annual Report on Form 10-K of Daktronics, Inc. for the year ended April 28, 2018.

/s/ Deloitte & Touche LLP
Minneapolis, Minnesota
September 28, 2018



Exhibit


Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement on Forms S-8 pertaining to the 2002 Employee Stock Purchase Plan of Daktronics, Inc. of our report dated June 9, 2017, with respect to the consolidated financial statements and schedule of Daktronics, Inc. included in its Annual Report (Form 10-K) for the year ended April 28, 2018, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP
Minneapolis, Minnesota
September 28, 2018