UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

ARCTIC CAT INC.

(Exact name of Registrant as specified in its charter)

 

 

 

Minnesota   41-1443470

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

 

505 Hwy 169 North, Suite 1000

Plymouth, Minnesota

  55423
(Address of Principal Executive Offices)   (Zip Code)

 

 

Arctic Cat Inc.

2013 Omnibus Stock and Incentive Plan

(Full title of the plan)

 

Christopher J. Eperjesy

Chief Financial Officer

Arctic Cat Inc.

505 Highway 169 North, Suite 1000

Plymouth, Minnesota 55441

 

Copy to:

John R. Houston, Esq.

Fredrikson & Byron, P.A.

200 South Sixth Street, Suite 4000

Minneapolis, Minnesota 55402

(612) 492-7000

(Name and address for agent for service)

 

 

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

 

Large accelerated filer   ¨    Accelerated filer   x
Non-accelerated filer   ¨   (Do not check if a smaller reporting company)    Smaller reporting company   ¨

 

 

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

 

Amount Of

Registration Fee

Common stock, par value $0.01 per share (“Common Stock”)

  875,000 shares   $14.55  (2)   $12,731,250   $1,282.04

 

 

(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, (the “Securities Act”) this Registration Statement also relates to such additional number of shares available for issuance under the Arctic Cat Inc. 2013 Omnibus Stock and Incentive Plan (the “Plan”) as may be required pursuant to the Plan in the event of a stock dividend, stock split, recapitalization or other similar event, or as otherwise provided for in the Plan.
(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h)(1) of the Securities Act. Such price is based upon the average of the high and low prices of the Registrant’s Common Stock as reported on the NASDAQ Global Select Market on August 2, 2016.

 

 

 

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act and the Note to Part I of Form S-8.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

The following documents have been filed by the Registrant with the Securities and Exchange Commission (the “Commission”) and are incorporated herein by reference:

 

  •   the Registrant’s Annual Report on Form 10-K for the fiscal year ended March 31, 2016, filed with the Commission on May 27, 2016, including portions of the Registrant’s Proxy Statement for its 2016 Annual Meeting of Shareholders held July 25, 2016, filed with the Commission on June 20, 2016, to the extent specifically incorporated by reference into such Form 10-K;

 

  •   all other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”) since March 31, 2016; and

 

  •   the description of the Registrant’s capital stock contained in its Registration Statement on Form 8-A filed with the Commission on May 21, 1990, and any other amendment or report filed for the purpose of updating such description, including the Registrant’s Current Report on Form 8-K filed on December 2, 2014.

All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than disclosures furnished under either Item 2.02 or Item 7.01 of Form 8-K, including any exhibits relating to information furnished under either Item 2.02 or Item 7.01 of Form 8-K), prior to the filing of a post-effective amendment which indicates that all the securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated herein by reference 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 in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or in any other subsequently filed document that also is, or is deemed to be, incorporated by reference in this Registration Statement 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 Officers and Directors.

Section 302A.521 of the Minnesota Business Corporation Act (the “MBCA”) provides that a corporation shall indemnify any person made or threatened to be made a party to a proceeding by reason of acts or omissions performed in his or her official capacity as an officer, director, employee or agent of the corporation against judgments, penalties, fines, including without limitation, excise taxes assessed against such person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys’ fees and disbursements, incurred by the person in connection with the proceeding, if, with respect to the acts or omissions of the person complained of in the proceeding, the person:

 

  (a) has not been indemnified by another organization or employee benefit plan for the same expenses with respect to the same acts or omissions;

 

  (b) acted in good faith;

 

  (c) received no improper personal benefit and Section 302A.255 of the MBCA (regarding conflicts of interest), if applicable, has been satisfied;

 

  (d) in the case of a criminal proceeding, had no reasonable cause to believe the conduct was unlawful; and

 

  (e) in the case of acts or omissions by persons in their official capacity for the corporation, reasonably believed that the conduct was in the best interests of the corporation, or in the case of acts or omissions by persons in their capacity for other organizations, reasonably believed that the conduct was not opposed to the best interests of the corporation.

In addition, Section 302A.521, subd. 3, of the MBCA requires payment or reimbursement by the corporation, upon written request, of reasonable expenses (including attorneys’ fees) incurred by a person in advance of the final disposition of a proceeding, (a) upon receipt by the corporation of a written affirmation by the person of a good faith belief that the requirements for indemnification set forth above have been met as well as a written undertaking by the person to repay all amounts so paid or reimbursed by the corporation, if it is ultimately determined that the criteria for indemnification have not been satisfied, and (b) after a determination that the facts then known to those making the determination would not preclude indemnification under Section 302A.521 of the MBCA.

A decision as to required indemnification is made by a disinterested majority of the Registrant’s Board of Directors (the “Board”) present at a meeting at which a disinterested quorum is present, or by a designated committee of the Board consisting of disinterested directors, by special legal counsel, by the shareholders, or by a court. A director is disinterested if he or she is not a party to the proceeding for which indemnification or expense advancement is at issue. Section 302A.521 contains detailed terms regarding such right of indemnification and reference is made thereto for a complete statement of such indemnification rights.

As permitted by Section 302A.251 of the MBCA, Article XII of the Registrant’s Amended and Restated Articles of Incorporation provide that a director of the Registrant shall not be personally liable to the Registrant or its shareholders for monetary damages for breach of a fiduciary duty as a director, except for liability (1) for breach of the director’s duty of loyalty to the Registrant or its shareholders; (2) for acts or omissions not in good faith that involve intentional misconduct or a knowing violation of law; (3) for paying a dividend or approving a stock repurchase in violation of Section 302A.559 of the MBCA or for violating the securities registration or anti-fraud provisions of Section 80A.23 of the MBCA; (4) for any transaction from which the director derived any improper personal benefit; or (5) for any action or omission occurring prior to the date when the provision became effective. Article X of the Registrant’s Amended and Restated Bylaws provide that the Registrant shall indemnify officers and directors to the extent permitted by the MBCA as it may be amended from time to time. The Registrant also maintains a director and officer liability insurance policy to cover the Registrant and the Registrant’s directors and officers against damages, judgments, settlements and costs incurred by reason of certain acts of such persons in their capacities as directors and officers.

 

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.

 

Exhibit No.

  

Description

  5.1*    Opinion of Fredrikson & Byron, P.A. as to the legality of the securities being registered.
10.1 (1)    Arctic Cat Inc. 2013 Omnibus Stock and Incentive Plan.
23.1*    Consent of Grant Thornton LLP.
23.2*    Consent of Fredrikson & Byron, P.A. (contained in its opinion filed as Exhibit 5.1).
24.1*    Power of Attorney (included in signature page to this Registration Statement).

 

* Filed herewith.
(1)   Incorporated by reference to Appendix A to the Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Commission on June 20, 2016

 

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;

 

  ii. to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and

 

  iii. to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

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 periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.

 

  2. That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

  3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act 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 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 Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person 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 Securities 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 Plymouth, State of Minnesota, on August 8, 2016.

 

ARCTIC CAT INC.
By  

/s/ CHRISTOPHER T. METZ

  Christopher T. Metz
  President and Chief Executive Officer

POWER OF ATTORNEY

Each person whose signature appears below constitutes and appoints Christopher T. Metz and Christopher J. Eperjesy, and each of them, his or her true and lawful attorneys-in-fact and agents, each acting alone, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to the Registration Statement on Form S-8 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on August 8, 2016.

 

Signature

  

Title

/s/ CHRISTOPHER T. METZ

   President, Chief Executive Officer and Director
Christopher T. Metz    (principal executive officer)

/s/ CHRISTOPHER J. EPERJESY

   Chief Financial Officer
Christopher J. Eperjesy    (principal financial and accounting officer)

/s/ KIM A. BRINK

   Director
Kim A. Brink   

/s/ TONY J. CHRISTIANSON

   Director
Tony J. Christianson   

/s/ ANDREW S. DUFF

   Director
Andrew S. Duff   

/s/ SUSAN E. LESTER

   Director
Susan E. Lester   

/s/ JOSEPH F. PUISHYS

   Director
Joseph F. Puishys   

/s/ KENNETH J. ROERING

   Chairman of the Board and Director
Kenneth J. Roering   

ARCTIC CAT INC.

EXHIBIT INDEX

 

Exhibit No.

  

Description

  5.1*    Opinion of Fredrikson & Byron, P.A. as to the legality of the securities being registered.
10.1 (1)    Arctic Cat Inc. 2013 Omnibus Stock and Incentive Plan.
23.1*    Consent of Grant Thornton LLP.
23.2*    Consent of Fredrikson & Byron, P.A. (contained in its opinion filed as Exhibit 5.1).
24.1*    Power of Attorney (included in signature page to this Registration Statement).

 

 

* Filed herewith.
(1) Incorporated by reference to Appendix A to the Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Commission on June 20, 2016
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