UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
 |
DAKTRONICS, INC.
(Exact name of registrant as specified in its charter)
| South Dakota | 46-0306862 | ||
| (State or other jurisdiction of | (I.R.S. Employer | ||
| incorporation or organization) | Identification Number) | ||
331 32nd Avenue
Brookings, South Dakota 57006
(Address of Principal Executive Offices, Zip Code)
Daktronics, Inc. 2002 Employee Stock Purchase Plan
(Full title of the plan)
William R. Retterath
Chief Financial Officer
Daktronics, Inc.
331 32nd Avenue
Brookings, South Dakota 57006
(Name and address of agent for service)
(605) 697-4000
(Telephone Number, including area code, of
agent for service)
1
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 | 500,000 shares | $9.55 | $4,775,000 | $439.30 | |||||
| (no par value) |
| (1) | This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the Employee Stock Purchase Plan by reason of any stock divided, 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) | Calculated solely for purposes of this offering under Rule 457(c) and 457(h) of the Securities Act of 1933, as amended, on the basis of the average of the high and low prices per share of Common Stock of Daktronics, Inc. as reported on the Nasdaq National Market on October 28, 2002. |
2
TABLE OF CONTENTS
| Page |
| PART I |
| Information Required in the Section 10(a) Prospectus | 4 |
| PART II |
| Information Required in the Registration Statement | 4 |
| SIGNATURES | 7 |
| EXHIBIT INDEX | 8 |
| Daktronics, Inc. 2002 Employee Stock Purchase Plan |
| Opinion and Consent of Hinshaw & Culbertson |
| Consent of McGladrey & Pullen, LLP |
| Power Of Attorney |
3
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 Commission either as part of this Registration Statement or as a prospectus or prospectus supplement.
PART II
Information Required in the Registration
Statement
Item 3. Incorporation of Certain Documents by Reference
Daktronics, Inc. (the “Company”) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “SEC”)
| (a) | The Company’s latest annual report filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 which contains, either directly or by incorporation by reference, certain financial statements for the Company’s latest fiscal year for which such statements have been filed. |
| (b) | All other reports filed by the Company pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year covered by the annual reports referred to in Paragraph (a) above. |
| (c) | The Company’s definitive proxy statement or information statement, if any, filed pursuant to Section 14 of the Securities Exchange Act of 1934, in connection with the latest annual meeting of its stockholders, and any definitive proxy or information statements so filed in connection with any subsequent annual or special meetings of its stockholders. |
| (d) | The description of the Company’s Common Stock which is contained in the Company’s registration statement on Form S-1 filed December 3, 1993, including any amendment or report filed for the purpose of updating such description, which is filed subsequent to the date of this Registration Statement and prior to the termination of the offering of the common stock offered hereby. |
All reports and other documents subsequently filed by the Company and the Plans pursuant to sections 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities remaining to be unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents. Any statement contained herein or in a document all or part of which is 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 in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such 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
4
The South Dakota Business Corporation Act, the Company’s Bylaws and agreements between the Company and each officer and director, provide that officers and directors of the Company have the right to indemnification from the Company for liability arising out of certain actions to the fullest extent permissible by law. This indemnification may be available for liabilities arising in connection with this offering. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the Company pursuant to such indemnification provisions, 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. The South Dakota Business Corporation Act and the Company’s Bylaws also provide that a South Dakota business corporation may indemnify any director, officer, employee or agent of the corporation made or threatened to be made a party to a proceeding, by reason of the former or present official capacity of such person on behalf of the Company, against judgments, penalties, fines, settlements and reasonable expenses incurred by the person in connection with the proceeding if certain statutory standards are met.
The Company has purchased liability insurance to indemnify its directors and officers against loss arising from claims by reason of their legal liability for acts as officers and directors, subject to limitations and conditions set forth in the policies.
The Company has adopted in its Articles of Incorporation a provision which limits personal liability for breach of fiduciary duty by directors, to the extent provided by the South Dakota Business Corporation Act. This provision eliminates the personal liability of directors for damages occasioned by breach of fiduciary duty, except for liability based on the director’s duty of loyalty to the Company, liability for acts or omissions not made in good faith, liability for acts or omissions involving intentional misconduct or a knowing violation of law, liability based on payments of improper dividends or liability for any transaction from which the director derived an improper personal benefit.
Item 7. Exemption from Registration Claimed
| Not applicable. |
Item 8. Exhibits
| Exhibit Number | Exhibit |
| 4.5 | Daktronics, Inc. 2002 Employee Stock Purchase Plan |
| 5.1 | Opinion of Hinshaw & Culbertson |
| 23.1 | Consent of McGladrey & Pullen, LLP |
| 23.2 | Consent of Hinshaw & Culbertson (included in Exhibit 5.1 to this Registration Statement) |
| 24.1 | Power of Attorney |
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. 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 Securities and Exchange Commission pursuant to Rule 424(b) of the Securities Act if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and |
5
| (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 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 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 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 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.
6
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 Brookings, State of South Dakota on this 30th day of October, 2002.
| DAKTRONICS, INC. | |||
| By: /s/ William R. Retterath | |||
| William R. Retterath | |||
| Chief Financial Officer & Treasurer |
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 and on the dates indicated.
| Signature | Title | Date | |||
| By /s/ James B. Morgan | Chief Executive Officer & | October 30, 2002 | |||
| James B. Morgan | Director | ||||
| (principal executive officer) | |||||
| By /s/ William R. Retterath | Chief Financial Officer | October 30, 2002 | |||
| William R. Retterath | (principal financial and | ||||
| accounting officer) | |||||
| By /s/ Aelred J. Kurtenbach | Director | October 30, 2002 | |||
| Aelred J. Kurtenbach | Chairman of the Board | ||||
| By /s/ Roland J. Jensen | Director | October 30, 2002 | |||
| Roland J. Jensen | |||||
| By /s/ Frank J. Kurtenbach | Director | October 30, 2002 | |||
| Frank J. Kurtenbach | |||||
| By /s/ John L. Mulligan | Director | October 30, 2002 | |||
| John L. Mulligan | |||||
| By /s/ Robert G. Dutcher | Director | October 30, 2002 | |||
| Robert G. Dutcher | |||||
| By /s/ Duane E. Sander | Director | October 30, 2002 | |||
| Duane E. Sander | |||||
| By /s/ Nancy D. Frame | Director | October 30, 2002 | |||
| Nancy D. Frame | |||||
| By /s/ James A. Vellenga | Director | October 30, 2002 | |||
| James A. Vellenga | |||||
7
EXHIBIT INDEX
| Exhibit Number | Exhibit |
| 4.5 | Daktronics, Inc. 2002 Employee Stock Purchase Plan |
| 5.1 | Opinion of Hinshaw & Culbertson |
| 23.1 | Consent of McGladrey & Pullen, LLP |
| 23.2 | Consent of Hinshaw & Culbertson (included in Exhibit 5.1 to this Registration Statement) |
| 24.1 | Power of Attorney |
8
EXHIBIT 4.5
DAKTRONICS, INC.
2002 EMPLOYEE STOCK PURCHASE PLAN
TABLE OF CONTENTS
1. PURPOSE OF THE PLAN...................................................1
2. ADMINISTRATION OF THE PLAN............................................1
2.1. COMMITTEE COMPOSITION........................................1
2.2. COMMITTEE RESPONSIBILITIES...................................1
2.3 PLAN YEAR....................................................1
3. ENROLLMENT AND PARTICIPATION..........................................1
3.1. OFFERING PERIODS.............................................1
3.2. CONTRIBUTION PERIODS.........................................1
3.3. ENROLLMENT...................................................1
3.4. DURATION OF PARTICIPATION....................................2
3.5 APPLICABLE OFFERING PERIOD...................................2
4. EMPLOYEE CONTRIBUTIONS................................................2
4.1. FREQUENCY OF PAYROLL DEDUCTIONS..............................2
4.2. AMOUNT OF PAYROLL DEDUCTIONS.................................2
4.3. CHANGING WITHHOLDING RATE....................................3
4.4 DISCONTINUING PAYROLL DEDUCTIONS.............................3
5. WITHDRAWAL FROM THE PLAN..............................................3
5.1. WITHDRAWAL...................................................3
5.2. RE-ENROLLMENT AFTER WITHDRAWAL...............................3
6. CHANGE IN EMPLOYMENT STATUS...........................................3
6.1. TERMINATION OF EMPLOYMENT....................................3
6.2. DEATH........................................................3
7. PLAN ACCOUNTS AND PURCHASE OF SHARES..................................4
7.1. PLAN ACCOUNTS................................................4
7.2. PURCHASE PRICE...............................................4
7.3. NUMBER OF SHARES PURCHASED...................................4
7.4. AVAILABLE SHARES INSUFFICIENT................................4
7.5. ISSUANCE OF COMMON STOCK CERTIFICATES........................4
7.6. RESTRICTED RESALE OF SHARES ACQUIRED UNDER PLAN..............5
7.7. UNUSED CASH BALANCES.........................................5
7.8. STOCKHOLDER APPROVAL.........................................5
i
8. LIMITATIONS ON STOCK OWNERSHIP........................................5
8.1. FIVE PERCENT LIMIT...........................................5
8.2. DOLLAR LIMIT.................................................5
9. RIGHTS NOT TRANSFERABLE...............................................6
10. NO RIGHTS AS AN EMPLOYEE..............................................6
11. NO RIGHTS AS A STOCKHOLDER............................................6
12. SECURITIES LAW REQUIREMENTS...........................................6
13. STOCK OFFERED UNDER THE PLAN..........................................6
13.1. AUTHORIZED SHARES............................................6
13.2. ANTI-DILUTION ADJUSTMENTS....................................7
13.3. REORGANIZATIONS..............................................7
14. AMENDMENT OR DISCONTINUANCE...........................................7
15. DEFINITIONS...........................................................7
15.1. "BOARD"......................................................7
15.2. "CHANGE IN CONTROL"..........................................7
15.3. "CODE".......................................................8
15.4. "COMMITTEE"..................................................8
15.5. "COMMON STOCK"...............................................8
15.6. "CONTRIBUTION PERIOD"........................................8
15.7. "CORPORATION"................................................8
15.8. "COMPENSATION"...............................................8
15.9. "ELIGIBLE EMPLOYEE"..........................................8
15.10. "EXCHANGE ACT"...............................................9
15.11. "FAIR MARKET VALUE"..........................................9
15.12. "OFFERING PERIOD"............................................9
15.13. "PARTICIPANT"................................................9
15.14. "PARTICIPATING CORPORATION"..................................9
15.15. "PLAN".......................................................9
15.16. "PLAN ACCOUNT"...............................................9
15.17. "PURCHASE PRICE"............................................10
15.18. "SUBSIDIARY"................................................10
16. GOVERNING LAW........................................................10
17. EXECUTION............................................................10
ii
DAKTRONICS, INC.
2002 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE OF THE PLAN
The Plan was adopted by the Board on June 25, 2002, to be effective as of
November 1, 2002. The purpose of the Plan is to provide Eligible Employees with
an opportunity to increase their proprietary interest in the success of the
Corporation by purchasing Common Stock from the Corporation on favorable terms
and to pay for such purchases through payroll deductions. The Plan is intended
to qualify under Section 423 of the Code.
2. ADMINISTRATION OF THE PLAN
2.1. COMMITTEE COMPOSITION.
The Board or Compensation Committee shall oversee the Plan.
(For purposes of this Plan, references hereinafter to the
Committee shall mean either the Compensation Committee or the
Board.)
2.2. COMMITTEE RESPONSIBILITIES.
The Committee shall interpret the Plan and make all other
policy decisions relating to the operation of the Plan. The
Committee may adopt such rules, guidelines and forms as it
deems appropriate to implement the Plan. The Committee's
determinations under the Plan shall be final and binding on
all persons. The Committee shall act by majority vote of its
members. An action of the Committee may be taken without a
meeting by a unanimous written consent signed by all members
of the Committee.
2.3. PLAN YEAR.
The Plan Year shall consist of a twelve month period
commencing on May 1 and ending on April 30.
3. ENROLLMENT AND PARTICIPATION
3.1. OFFERING PERIODS.
While the Plan is in effect, options to purchase shares of
Common Stock shall be offered to Participants under the Plan
through a continuous series of Offering Periods, each
continuing for six months, and each of which shall commence on
May 1 and November 1 of each year (the "Offering Date") and
shall terminate on October 31 and April 30 of each year (the
"Termination Date"). Offering Periods under the Plan shall
continue until either (A) the Committee decides that no
further Offerings shall be made because the Common Stock
remaining available under the Plan is insufficient to make an
Offering to all Eligible Employees or (B) the Plan is
terminated in accordance with Section 14 below.
3.2. CONTRIBUTION PERIODS.
While the Plan is in effect, two Contribution Periods shall
commence in each calendar year. The Contribution Periods shall
consist of the six-month periods commencing on each May 1 and
ending on October 31 and commencing on November 1 and ending
on April 30.
3.3. ENROLLMENT.
Participation in the Plan by an Eligible Employee is
voluntary. Any individual who, on the day prior to the first
day of an Offering Period, qualifies as an Eligible Employee
may elect to become a Participant in the Plan for such
Offering Period by executing the enrollment form prescribed
for this purpose by the Committee. The enrollment form shall
be filed with the Corporation at the prescribed location not
later than ten business days prior to the commencement of such
Offering Period.
1
3.4. DURATION OF PARTICIPATION.
Once enrolled in the Plan, a Participant shall continue to
participate in the Plan until he or she ceases to be an
Eligible Employee, withdraws from the Plan under Section 5.1
or reaches the end of the Contribution Period in which his or
her employee contributions were discontinued under Section 4.4
or 8.2. A Participant who discontinued employee contributions
under Section 4.4 or withdrew from the Plan under Section 5.1
may again become a Participant, if he or she then is an
Eligible Employee, by following the procedure described in
Section 3.3 above. A Participant whose employee contributions
were discontinued automatically under Section 8.2 shall
automatically resume participation at the beginning of the
earliest Contribution Period ending in the next calendar year,
if he or she then is an Eligible Employee.
3.5. APPLICABLE OFFERING PERIOD.
For purposes of calculating the Purchase Price under Section
7.2, the applicable Offering Period shall be determined as
follows:
3.5.1. Once a Participant is enrolled in the Plan for an
Offering Period, such Offering Period shall continue
to apply to him or her until the earliest of (A) the
end of such Offering Period or (B) the end of his or
her participation under Section 3.4 above.
3.5.2. Each Participant who actively contributed to the plan
on the last pay date of an offering period is
automatically re-enrolled in the following offering
period. Employees who withdraw or change their
deferrals to 0% during an offering period must submit
a new enrollment form to participate in a future
offering period.
4. EMPLOYEE CONTRIBUTIONS
4.1. FREQUENCY OF PAYROLL DEDUCTIONS.
A Participant may purchase shares of Common Stock under the
Plan solely by means of payroll deductions. Payroll
deductions, as designated by the Participant pursuant to
Section 4.2 below, shall occur on each payday during
participation in the Plan and shall be determined based upon
the Payroll Withholding Rate designated by the Participant
pursuant to Section 4.2 below. Payroll deductions for a
Participant shall be on an after-tax basis and shall begin
with the first payroll on or following the applicable Offering
Date and shall continue until the termination date of the
Plan, subject to earlier termination as provided herein or to
decreases by the Participant in the amount of the Payroll
Withholding Rate as provided in Section 4.3.
4.2. AMOUNT OF PAYROLL DEDUCTIONS.
An Eligible Employee shall designate on the enrollment form
the portion of his or her Compensation that he or she elects
to have withheld for the purchase of Common Stock (the
"Payroll Withholding Rate"). Such portion shall be a
percentage of the Eligible Employee's Compensation, but not
more than 15% or such lesser percentage established by the
Committee from time to time. In no event may a Participant
contribute more than 15% of his or her Compensation during a
calendar year for the purchase of shares of Common Stock under
the Plan.
2
4.3. CHANGING WITHHOLDING RATE.
No increases in the Payroll Withholding Rate may be made
during an Offering Period. A Participant may elect to make one
decrease in the Payroll Withholding Rate during an Offering
Period, which change shall become effective as soon as
reasonably practical after a new enrollment form has been
received by the Corporation. Otherwise, if a Participant
wishes to change the Payroll Withholding Rate, he or she may
do so by filing a new enrollment form with the Corporation at
the prescribed location not less than ten business days before
the Offering Date as of which such increase or decrease is to
be effective. The new Payroll Withholding Rate shall be a
percentage of the Participant's Compensation, not more than
15%.
4.4. DISCONTINUING PAYROLL DEDUCTIONS.
If a Participant wishes to discontinue employee contributions
entirely, he or she may do so by filing a new enrollment form
with the Corporation at the prescribed location at any time.
Payroll withholding shall cease as soon as reasonably
practicable after such form has been received by the
Corporation. (In addition, employee contributions may be
discontinued automatically pursuant to Section 8.2.) A
Participant who has discontinued employee contributions may
resume such contributions by filing a new enrollment form with
the Corporation pursuant to Section 3.3 above.
5. WITHDRAWAL FROM THE PLAN
5.1. WITHDRAWAL.
A Participant may elect to withdraw from the Plan by filing
the prescribed form with the Corporation at the prescribed
location at any time before the last day of a Contribution
Period. As soon as reasonably practicable thereafter, payroll
deductions shall cease, and the entire amount credited to the
Participant's Plan Account shall be refunded to him or her in
cash, without interest. No partial withdrawals shall be
permitted.
5.2. RE-ENROLLMENT AFTER WITHDRAWAL.
A former Participant who has withdrawn from the Plan shall not
be a Participant until he or she re-enrolls in the Plan under
Section 3.3. Re-enrollment may be effective only at the
commencement of an Offering Period.
6. CHANGE IN EMPLOYMENT STATUS
6.1. TERMINATION OF EMPLOYMENT.
Termination of employment as an Eligible Employee for any
reason, including death, shall be automatically treated as a
withdrawal from the Plan under Section 5.1. (A transfer from
one Participating Corporation to another shall not be treated
as a termination of employment.)
6.2. DEATH.
In the event of the Participant's death, the amount credited
to his or her Plan Account shall be paid to a beneficiary
designated by him or her for this purpose on the prescribed
form or, if none, to the Participant's estate. Such form shall
be valid only if it was filed with the Corporation at the
prescribed location before the Participant's death.
3
7. PLAN ACCOUNTS AND PURCHASE OF SHARES
7.1. PLAN ACCOUNTS.
The Corporation shall maintain a Plan Account on its books in
the name of each Participant. Whenever an amount is deducted
from the Participant's Compensation under the Plan, such
amount shall be credited to the Participant's Plan Account.
Amounts credited to Plan Accounts shall not be trust funds and
may be commingled with the Corporation's general assets and
applied to general corporate purposes. A Participant may not
make any separate cash payment or contribution to his or her
Plan Account. No interest shall be credited to Plan Accounts.
7.2. PURCHASE PRICE.
The Purchase Price for each share of Common Stock purchased at
the Termination Date of an Offering Period shall be the lower
of:
7.2.1. 85% of the Fair Market Value of such share on the
last trading day in such Offering Period; or
7.2.2. 85% of the Fair Market Value of such share on the
last trading day before the Offering Date.
7.3. NUMBER OF SHARES PURCHASED.
As of the Termination Date of each Offering Period, each
Participant shall be deemed to have elected to purchase the
number of shares of Common Stock calculated in accordance with
this Section 7.3, unless the Participant's participation has
terminated, through withdrawal or otherwise, in accorandance
with Section 5.1 or Section 6. The amount then in the
Participant's Plan Account shall be divided by the Purchase
Price, and the whole number of shares that results shall be
purchased from the Corporation with the funds in the
Participant's Plan Account. The foregoing notwithstanding, no
Participant shall purchase more than 4,000 shares of Common
Stock with respect to any Contribution Period nor more than
the amounts of Common Stock set forth in Sections 8.2 and
13.1. Notwithstanding the foregoing, the Committee may
determine with respect to all Participants that any fractional
share, as calculated under this Section 7.3, shall be (i)
rounded down to the next lower whole share or (ii) credited as
a fractional share.
7.4. AVAILABLE SHARES INSUFFICIENT.
In the event that the aggregate number of shares that all
Participants are to purchase on any Termination Date exceeds
the maximum number of shares remaining available for issuance
under Section 13.1, then the number of shares to which each
Participant is entitled shall be determined by multiplying the
number of shares available for issuance by a fraction, the
numerator of which is the number of shares that such
Participant has elected to purchase on the Termination Date
and the denominator of which is the number of shares that all
Participants have elected to purchase on the Termination Date.
In such event, the Corporation shall give written notice of
such reduction of the number of shares subject to the option
to each Participant affected thereby.
7.5. ISSUANCE OF COMMON STOCK CERTIFICATES.
Certificates representing the shares of Common Stock purchased
by a Participant under the Plan shall be issued to him or her
as soon as reasonably practicable after the Termination Date
of each Offering Period, except that the Committee may
determine that such shares shall be held for each
Participant's benefit by a broker designated by the Committee
(unless the Participant has elected that certificates be
4
issued directly to him or her). Shares may be registered in
the name of the Participant or jointly in the name of the
Participant and his or her spouse as joint tenants with right
of survivorship or as community property. The Committee may
impose such restrictions on the transfer or resale of issued
shares as it may deem advisable.
7.6. RESTRICTED RESALE OF SHARES ACQUIRED UNDER PLAN.
Notwithstanding anything else set forth herein, shares of
Common Stock acquired under this Plan may not be resold or
transferred for a period of one year after the date of
purchase. Certificates for shares issued under this Plan shall
contain an appropriate legend identifying such restriction on
resale.
7.7. UNUSED CASH BALANCES.
An amount remaining in the Participant's Plan Account that
represents the Purchase Price for any fractional share shall
be carried over in the Participant's Plan Account to the next
Offering Period. Any amount remaining in the Participant's
Plan Account that represents the Purchase Price for whole
shares that could not be purchased by reason of Section 7.4
above, Section 8.2 or Section 13.1 shall be refunded to the
Participant in cash, without interest.
7.8. STOCKHOLDER APPROVAL.
Any other provision of the Plan notwithstanding, no shares of
Common Stock shall be purchased under the Plan unless and
until the Corporation's stockholders have approved the
adoption of the Plan.
8. LIMITATIONS ON STOCK OWNERSHIP
8.1. FIVE PERCENT LIMIT.
Any other provision of the Plan notwithstanding, no
Participant shall be granted a right to purchase Common Stock
under the Plan if such Participant, immediately after his or
her election to purchase such Common Stock, would own stock
possessing more than 5% of the total combined voting power or
value of all classes of stock of the Corporation or any parent
or Subsidiary of the Corporation. For purposes of this Section
8.1, the following rules shall apply:
8.1.1. Ownership of stock shall be determined after applying
the attribution rules of section 424(d) of the Code;
8.1.2. Each Participant shall be deemed to own any stock
that he or she has a right or option to purchase
under this or any other plan; and
8.1.3. Each Participant shall be deemed to have the right to
purchase no more than 4,000 shares of Common Stock
under this Plan with respect to each Offering Period.
8.2. DOLLAR LIMIT.
Any other provision of the Plan notwithstanding, no
Participant shall acquire a right purchase Common Stock which
permits his rights to purchase stock under all "employee
purchase plans (as such term is defined in Section 423 of the
Code) of the Corporation and its parent and Subsidiary
corporations to accrue at a rate which exceeds $25,000 of the
Fair Market Value of such stock (determined at the time the
right was granted) for each calendar year in which such right
is outstanding at any time.
5
For purposes of this Section 8.2, the Fair Market Value of
Common Stock shall be determined in each case as of the
Offering Date of the Offering Period in which such Common
Stock is purchased. Employee stock purchase plans not
described in section 423 of the Code shall be disregarded. If
a Participant is precluded by this Section 8.2 from purchasing
additional Common Stock under the Plan, then his or her
employee contributions shall automatically be discontinued and
shall resume at the beginning of the earliest Contribution
Period ending in the next calendar year (if he or she then is
an Eligible Employee).
9. RIGHTS NOT TRANSFERABLE
The rights of any Participant under the Plan, or any Participant's interest in
any Common Stock or moneys to which he or she may be entitled under the Plan,
shall not be transferable by voluntary or involuntary assignment or by operation
of law, or in any other manner other than by beneficiary designation, will or
the laws of descent and distribution. If a Participant in any manner attempts to
transfer, assign or otherwise encumber his or her rights or interest under the
Plan, other than by beneficiary designation, will or the laws of descent and
distribution, then such act shall be treated as an election by the Participant
to withdraw from the Plan under Section 5.1.
10. NO RIGHTS AS AN EMPLOYEE
Nothing in the Plan or in any right granted under the Plan shall confer upon the
Participant any right to continue in the employ of a Participating Corporation
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Participating Corporations or of the Participant,
which rights are hereby expressly reserved by each, to terminate his or her
employment at any time and for any reason, with or without cause.
11. NO RIGHTS AS A STOCKHOLDER
A Participant shall have no rights as a stockholder with respect to any shares
of Common Stock that he or she may have a right to purchase under the Plan until
such shares have been purchased on the Termination Date of the applicable
Offering Period.
Even if the right to purchase shares is granted hereunder to a Participant, this
does not mean that the Participant remains further entitled to purchase Common
Stock. Such right to purchase Common Stock is granted voluntarily by the Company
and may be revoked by the Company at any time.
12. SECURITIES LAW REQUIREMENTS
Shares of Common Stock shall not be issued under the Plan unless the issuance
and delivery of such shares comply with (or are exempt from) all applicable
requirements of law, including (without limitation) the Securities Act of 1933,
as amended, the rules and regulations promulgated thereunder, state securities
laws and regulations, and the regulations of any stock exchange or other
securities market on which the Corporation's securities may then be traded.
13. STOCK OFFERED UNDER THE PLAN
13.1. AUTHORIZED SHARES.
The aggregate number of shares of Common Stock to be reserved
by the Company and available for purchase under the Plan shall
be 500,000.
6
13.2. ANTI-DILUTION ADJUSTMENTS.
The aggregate number of shares of Common Stock offered under
the Plan, the number of shares by which the share reserve is
to increase each calendar year, the 4,000-share limitation
described in Section 7.3 and the price of shares that any
Participant has elected to purchase shall be adjusted
proportionately by the Committee for any increase or decrease
in the number of outstanding shares of Common Stock resulting
from a subdivision or consolidation of shares or the payment
of a stock dividend, any other increase or decrease in such
shares effected without receipt or payment of consideration by
the Corporation, the distribution of the shares of a
Subsidiary to the Corporation's stockholders or a similar
event.
13.3. REORGANIZATIONS.
Any other provision of the Plan notwithstanding, immediately
prior to the effective time of a Change in Control, the
Offering Period and Contribution Period then in progress shall
terminate and shares shall be purchased pursuant to Section 7.
In the event of a merger or consolidation to which the
Corporation is a constituent corporation and which does not
constitute a Change in Control, the Plan shall continue unless
the plan of merger or consolidation provides otherwise. The
Plan shall in no event be construed to restrict in any way the
Corporation's right to undertake a dissolution, liquidation,
merger, consolidation or other reorganization.
14. AMENDMENT OR DISCONTINUANCE
The Plan may be amended by the Board from time to time to the extent that the
Board deems necessary or appropriate in light of, and consistent with, Section
423 of the Code; provided, however, that no such amendment shall be effective
without approval of the shareholders of the Corporation if shareholder approval
of such amendment is then required under Rule 16b-3 under the Exchange Act or
any successor rule or Section 423 of the Code or any other applicable law or
regulation.. The Board shall have the right to amend, suspend or terminate the
Plan at any time and without notice; provided, however, that the Board shall not
have the right to modify, cancel or amend any outstanding right to purchase
Common Stock hereunder before such termination unless each Participant consents
in writing.
15. DEFINITIONS
15.1. "BOARD"
Means the Board of Directors of the Corporation, as
constituted from time to time.
15.2. "CHANGE IN CONTROL"
Means:
15.2.1. The consummation of a merger or consolidation of the
Corporation with or into another entity or any other
corporate reorganization, if more than 50% of the
combined voting power of the continuing or surviving
entity's securities outstanding immediately after
such merger, consolidation or other reorganization is
owned by persons who were not stockholders of the
Corporation immediately prior to such merger,
consolidation or other reorganization;
15.2.2. The sale, transfer or other disposition of all or
substantially all of the Corporation's assets;
15.2.3. A change in the composition of the Board as a result
of which fewer than two-thirds of the incumbent
directors are directors who either (i) had been
directors of the Corporation on the date 24 months
prior to the date of the event that may constitute a
Change in Control (the "original directors") or (ii)
were elected, or nominated for election, to the Board
with the affirmative votes of at least a majority of
7
the aggregate of the original directors who were
still in office at the time of the election or
nomination and the directors whose election or
nomination was previously so approved; or
15.2.4. Any transaction as a result of which any person is
the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of
securities of the Corporation representing at least
50% of the total voting power represented by the
Corporation's then outstanding voting securities. For
purposes of this Section 15.2.2 , the term "person"
shall have the same meaning as when used in sections
13(d) and 14(d) of the Exchange Act but shall exclude
(i) a trustee or other fiduciary holding securities
under an employee benefit plan of the Corporation or
of a Parent or Subsidiary and (ii) a corporation
owned directly or indirectly by the stockholders of
the Corporation in substantially the same proportions
as their ownership of the common stock of the
Corporation.
A transaction shall not constitute a Change in
Control if its sole purpose is to change the state of
the Corporation's incorporation or to create a
holding company that will be owned in substantially
the same proportions by the persons who held the
Corporation's securities immediately before such
transaction.
15.3. "CODE"
Means the Internal Revenue Code of 1986, as amended.
15.4. "COMMITTEE"
Means the Compensation Committee of the Board, as described in
Section 2.
15.5. "COMMON STOCK"
Means the common stock of the Corporation.
15.6. "CONTRIBUTION PERIOD"
Means a six-month period during which contributions may be
made toward the purchase of Common Stock under the Plan, as
determined pursuant to Section 3.2.
15.7. "CORPORATION"
Means Daktronics, Inc., a South Dakota corporation.
15.8. "COMPENSATION"
Means (i) the total compensation paid in cash to a Participant
by a Participating Corporation, including salaries, wages,
bonuses, incentive compensation, commissions, overtime pay and
shift premiums, plus (ii) any pre-tax contributions made by
the Participant under section 401(k) or 125 of the Code.
"Compensation" shall exclude all non-cash items, moving or
relocation allowances, cost-of-living equalization payments,
car allowances, tuition reimbursements, imputed income
attributable to cars or life insurance, severance pay, fringe
benefits, contributions or benefits received under employee
benefit plans, income attributable to the exercise of stock
options, and similar items. The Committee shall determine
whether a particular item is included in Compensation,
determined in a manner consistent with the requirements of
Section 423 of the Code.
15.9. "ELIGIBLE EMPLOYEE"
Means any employee of a Participating Corporation whose
customary employment is for more than five months per calendar
year and for more than 20 hours per week provided that such
employee has been employed by any Participating Corporation
for a continuous period of six (6) months preceding an
applicable Offering Period.
8
15.10. "EXCHANGE ACT"
Means the Securities Exchange Act of 1934, as amended.
15.11. "FAIR MARKET VALUE"
Means the market price of Common Stock, determined by the
Committee as follows:
15.11.1. If the Common Stock was traded over-the-counter on
the date in question but was not traded on The
Nasdaq National Market or The Nasdaq SmallCap
Market, then the Fair Market Value shall be equal
to the mean between the last reported
representative bid and asked prices quoted for such
date by the principal automated inter-dealer
quotation system on which the Common Stock was
quoted or, if the Common Stock was not quoted on
any such system, by the "Pink Sheets" published by
Pink Sheets LLC;
15.11.2. If the Common Stock was traded over-the-counter
market on the date in question and was traded on
The Nasdaq National Market or The Nasdaq SmallCap
Market, then the Fair Market Value shall be equal
to the last-transaction price quoted for such date
by The Nasdaq National Market or The Nasdaq
SmallCap Market;
15.11.3. If the Common Stock was traded on a stock exchange
on the date in question, then the Fair Market Value
shall be equal to the closing price reported by the
applicable composite transactions report for such
date; or
15.11.4. If none of the foregoing provisions is applicable,
then the Fair Market Value shall be determined by
the Committee in good faith on such basis as it
deems appropriate. Whenever possible, the
determination of Fair Market Value by the Committee
shall be based on the prices reported in THE WALL
STREET JOURNAL or as reported directly to the
Corporation by Nasdaq or a stock exchange. Such
determination shall be conclusive and binding on
all persons.
15.12. "OFFERING PERIOD"
Means a six-month period with respect to which the right to
purchase Common Stock may be granted under the Plan, as
determined pursuant to Section 3.1.
15.13. "PARTICIPANT"
Means an Eligible Employee who elects to participate in the
Plan, as provided in Section 3.3.
15.14. "PARTICIPATING CORPORATION"
Means (i) the Corporation and (ii) each present or future
Subsidiary designated by the Committee as a Participating
Corporation.
15.15. "PLAN"
Means this Daktronics, Inc. 2002 Employee Stock Purchase Plan,
as it may be amended from time to time.
15.16. "PLAN ACCOUNT"
Means the account established for each Participant pursuant to
Section 7.1.
9
15.17. "PURCHASE PRICE"
Means the price at which Participants may purchase Common
Stock under the Plan, as determined pursuant to Section 7.2.
15.18. "SUBSIDIARY"
Means any corporation (other than the Corporation) in an
unbroken chain of corporations beginning with the Corporation,
if each of the corporations other than the last corporation in
the unbroken chain owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of
the other corporations in such chain.
16. GOVERNING LAW
The Plan shall be construed consistent with and governed by the laws of the
State of South Dakota and the laws of the United States.
17. EXECUTION
To record the adoption of the Plan as of 25 June 2002, the Corporation has
caused its authorized officer to execute the same.
DAKTRONICS, INC.
By: /s/ James B. Morgan
-----------------------------------
James B. Morgan
Title: Chief Executive Officer
-------------------------------
10
--------------------
HINSHAW & CULBERTSON
--------------------
ATTORNEYS AT LAW
BELLEVILLE, ILLINOIS Piper Jaffray Tower LOS ANGELES, CALIFORNIA
CHAMPAIGN, ILLINOIS 222 South Ninth Street SAN FRANCISCO, CALIFORNIA
CHICAGO, ILLINOIS Suite 3100 FT. LAUDERDALE, FLORIDA
CRYSTAL LAKE, ILLINOIS Minneapolis, MN 55402 JACKSONVILLE, FLORIDA
JOLIET, ILLINOIS 612-333-3434 MIAMI, FLORIDA
LISLE, ILLINOIS Facsimile 612-334-8888 TAMPA, FLORIDA
PEORIA, ILLINOIS www.hinshawculbertson.com SCHERERVILLE, INDIANA
ROCKFORD, ILLINOIS MINNEAPOLIS, MINNESOTA
SPRINGFIELD, ILLINOIS RMinish@hinshawlaw.com ST. LOUIS, MISSOURI
WAUKEGAN, ILLINOIS APPLETON, WISCONSIN
PHOENIX, ARIZONA MILWAUKEE, WISCONSIN
WRITER'S DIRECT DIAL: 612-334-2511 FILE NO. 753321
October 30, 2002
Securities and Exchange Commission EXHIBIT 5.1
Judiciary Plaza
450 Fifth Street N.W.
Washington, D.C. 20549
Re: Daktronics, Inc. 2002 Employee Stock Purchase Plan
Dear Sir/Madam:
In connection with the registration of 500,000 shares of Common Stock,
without par value, of Daktronics, Inc. (the "Company") by the Registration
Statement on Form S-8 reserved for issuance and sale pursuant to the Company's
2002 Employee Stock Purchase Plan, (the "Plan"), we have examined such documents
and records as we have deemed necessary to render the following opinion.
Based on the foregoing, we are of the opinion that:
(a) The Company has been duly incorporated under the laws of the State
of South Dakota and is a validly organized and existing corporation, and has
corporate authority to issue the shares of common stock referred to in the
Registration Statement.
(b) The 500,000 shares of Common Stock to be offered by the Company
pursuant to the 2002 Employee Stock Purchase Plan, when issued and paid for upon
the terms and in the manner set forth in the Plan, will be validly issued, fully
paid and nonassessable.
Securities and Exchange Commission EXHIBIT 5.1
October 28, 2002
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
HINSHAW & CULBERTSON
By /s/ Robert A. Minish
--------------------
Robert A. Minish, Partner
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the Daktronics, Inc. 2002 Employee Stock Purchase Plan of
our reports dated June 7, 2002 with respect to the consolidated financial
statements and schedule II of Daktronics, Inc., which reports were included in
the Daktronics, Inc. Annual Report on Form 10-K for the year ended April 27,
2002.
/s/ McGLADREY & PULLEN, LLP
Sioux Falls, South Dakota
October 30, 2002
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that DAKTRONICS, INC., a South Dakota
corporation (the "Company"), and each of the undersigned directors of the
Company, hereby constitutes and appoints James B. Morgan and William R.
Retterath and each of them (with full power to each of them to act alone)
its/his true and lawful attorney-in-fact and agent, for it/him and on its/his
behalf and its/his name, place and stead, in any and all capacities to sign,
execute, affix its/his seal thereto and file one or more Registration Statements
on Form S-8 or any other applicable form under the Securities Act of 1933, as
amended, and amendments thereto, including pre-effective and post-effective
amendments, with all exhibits and any and all documents required to be filed
with respect thereto with any regulatory authority, relating to 2,400,000 shares
to the Company's common stock, no par value, (the "Common Stock") reserved for
issuance with respect to the Company's 2002 Employee Stock Purchase Plan.
There is hereby granted to said attorneys, 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 respect of the foregoing as fully as it/he or
itself/himself might or could do if personally present, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in any number of counterparts,
each of which shall be an original, but all of which taken together shall
constitute one and the same instrument and any of the undersigned directors may
execute this Power of Attorney by signing any such counterpart.
IN WITNESS WHEREOF, DAKTRONICS, INC. has caused this Power of Attorney
to be executed in its name by its Chief Financial Officer on the 30th day of
October, 2002.
DAKTRONICS, INC.
By /s/ William R. Retterath
------------------------
William R. Retterath
Chief Financial Officer
The undersigned, directors of DAKTRONICS, INC., have hereunto set their
hands as of the 30th day of October, 2002.
Signature Title Date
- --------- ----- ----
By /s/ James B. Morgan Chief Executive Officer & October 30, 2002
-------------------------- Director
James B. Morgan (principal executive officer)
By /s/ William R. Retterath Chief Financial Officer October 30, 2002
-------------------------- (principal financial and
William R. Retterath accounting officer)
By /s/ Aelred J. Kurtenbach Director October 30, 2002
-------------------------- Chairman of the Board
Aelred J. Kurtenbach
By /s/ Roland J. Jensen Director October 30, 2002
--------------------------
Roland J. Jensen
By /s/ Frank J. Kurtenbach Director October 30, 2002
--------------------------
Frank J. Kurtenbach
By /s/ John L. Mulligan Director October 30, 2002
--------------------------
John L. Mulligan
By /s/ Robert G. Dutcher Director October 30, 2002
--------------------------
Robert G. Dutcher
By /s/ Duane E. Sander Director October 30, 2002
--------------------------
Duane E. Sander
Signature Title Date
- --------- ----- ----
By /s/ Nancy D. Frame Director October 30, 2002
--------------------------
Nancy D. Frame
By /s/ James A. Vellenga Director October 30, 2002
--------------------------
James A. Vellenga