As filed with the Securities and Exchange Commission on February [__], 2006
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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DYNATRONICS CORPORATION
(Exact name of registrant as specified in its charter)
Utah 87-0398434
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
7030 Park Centre Drive
Salt Lake City, Utah 84121
(Address of principal executive offices) (Zip Code)
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Dynatronics Corporation 2005 Equity Incentive Award Plan
(Full title of the Plans)
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Kelvyn H. Cullimore, Jr. Copies to:
President and Chief Executive Officer Wayne D. Swan, Esq.
DYNATRONICS CORPORATION Durham Jones & Pinegar, P.C.
7030 Park Centre Drive 111 East Broadway, Suite 900
Salt Lake City, Utah 84121 Salt Lake City, UT 84111
(801) 568-7000 (801) 415-3000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
=====================================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) Per Share(2) Price Fee
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Common Stock, without par value 402,413 shares $1.54 $619,716.02 66.31
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(1) Represents shares issuable under the Dynatronics Corporation 2005
Equity Incentive Award Plan. This Registration Statement shall also
cover any additional shares of Common Stock attributable to these
registered shares which become issuable under the Dynatronics
Corporation 2005 Equity Incentive Award Plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the Registrant's receipt of consideration which
results in an increase in the number of the outstanding shares of the
Registrant's Common Stock.
(2) Calculated solely for purposes of calculating the registration fee
pursuant to Rule 457(h) of the Securities Act of 1933, as amended, on
the basis of the average of the high ($1.62) and low ($1.45) selling
prices per share of the Registrant's Common Stock on February 13, 2006,
as reported on the Nasdaq Small Cap Market, or $1.54.
PART I
Item 1. Plan Information
Not filed as part of this Registration Statement pursuant to the Note
to Part 1 of Form S-8. The documents containing the information specified in
this item have been or will be sent or given to employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
Item 2. Registrant Information and Employee Plan Annual Information
Not filed as part of this Registration Statement pursuant to the Note
to Part 1 of Form S-8. The documents containing the information specified in
this item have been or will be sent or given to employees as specified by Rule
428(b)(1) of the Securities Act.
PART II
Item 3. Incorporation of Documents by Reference
Dynatronics Corporation (the "Company" or the "Registrant") hereby
incorporates by reference into this Registration Statement the following
documents filed with the Securities and Exchange Commission (the "Commission"):
A. The Company's annual report on Form 10-KSB filed with the
Commission on September 28, 2005 for the year ended June 30, 2005;
B. The Company's quarterly report on Form 10-QSB filed with the
Commission on November 14, 2005 for the quarter ended September
30, 2005;
C. The Company's quarterly report on Form 10-QSB filed with the
Commission on February 13, 2006 for the quarter ended December
31, 2005;
D. The Company's current report on Form 8-K filed with the Commission
on November 29, 2005; and
E. The description of the Company's common stock contained in a
registration statement filed with the Commission under Section 12
of the Exchange Act under such Act including any amendment or
report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold are incorporated by reference in this Registration Statement
(other than information furnished under either 2.02 or 7.01 of any current
report on Form 8-K) and are 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 herein or in any other 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.
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Item 6. Indemnification of Directors and Officers
Section 16-10a-841 of the Utah Revised Business Corporation Act (the
"UBCA") allows a Utah corporation to provide in its articles of incorporation or
by shareholder resolution or in its bylaws for the elimination or limitation of
personal liability of a director to the corporation or to its shareholders for
monetary damages for any action or omission, as a director, except (i) liability
for a financial benefit received by a director to which he was not entitled,
(ii) intentional infliction of harm on the corporation or the shareholders,
(iii) an unlawful distribution to shareholders in violation of the UBCA, and
(iv) intentional violation of criminal law.
Section 16-10a-902 of the UBCA provides that a Utah corporation may
indemnify any individual made a party to a proceeding because he or she is or
was a director, against liability incurred in the proceeding, if: (a) the
director's conduct was in good faith, (b) the director reasonably believed that
his or her conduct was in, or not opposed to, the corporation's best interests;
and (c) in the case of any criminal proceeding, the director had no reasonable
cause to believe such conduct was unlawful; provided, however, that a
corporation may not indemnify a director under Section 16-10a-902 if the
director was adjudged liable to the corporation in proceeding by or in the right
of the corporation or adjudged liable for deriving an improper personal benefit.
All indemnification is limited to reasonable expenses only.
Section 16-10a-903 of the UBCA provides that, unless limited by its
articles of incorporation, a Utah corporation shall indemnify a director who was
successful, on the merits or otherwise, in the defense of any proceeding, or in
the defense of any claim, issue or matter in the proceeding, to which the
director was a party because he or she is or was a director of the corporation,
against reasonable expenses incurred in connection with the proceeding or claim
with respect to which the director has been successful.
In addition to the indemnification provided by Sections 902 and 903,
Section 16-10a-905 of the UBCA provides that, unless otherwise limited by a
corporation's articles of incorporation, a director may apply for
indemnification to the court conducting the proceeding or to another court of
competent jurisdiction.
Under Section 16-10a-904 of the UBCA, a Utah corporation may pay for or
reimburse the reasonable expenses incurred by a director in advance of final
disposition of the proceeding if the director furnishes the corporation a
written affirmation of his or her good faith belief that the director has met
the applicable standard of conduct, provides a written undertaking personally
binding the director to pay the advance if it is ultimately determined that he
or she did not meet the standard of conduct, and a determination is made that
the facts then known to those making a determination would not preclude
indemnification. The director's undertaking need not be secured and may be
accepted without reference to financial ability to make repayment. Section
16-10a-906 prohibits a corporation from making any discretionary
indemnification, payment or reimbursement of expenses unless a determination has
been made that the director has met the applicable standard of conduct.
The determination required under Sections 16-10a-904 and 16-10a-906 of
the UBCA must be made as follows: (1) by a majority vote of a quorum of the
board of directors who are not parties to the proceeding; (2) if a quorum cannot
be obtained as contemplated by (1), above, by a majority vote of a committee of
two or more members of the board of directors who are not parties to the
proceeding and are designated by the board of directors; (3) by special legal
counsel selected by a quorum of the board of directors or its committee composed
of persons determined in the manner prescribed in (1) or (2), above, or if a
disinterested quorum of the board of directors or committee is not possible,
then selected by a majority vote of the full board of directors, or (4) by a
majority of the shareholders entitled to vote by person or proxy at a meeting.
Section 16-10a-907 of the UBCA provides that, unless a corporation's
articles of incorporation provide otherwise, (i) an officer of the corporation
is entitled to mandatory indemnification under Section 903 and is entitled to
apply for court-ordered indemnification under Section 905, in each case to the
same extent as a director, (ii) a corporation may indemnify and advance expenses
to an officer, employee, fiduciary or agent of the corporation to the same
extent as a director, and (iii) a corporation may also indemnify and advance
expenses to an officer, employee, fiduciary or agent who is not a director to a
greater extent, if not inconsistent with public policy, and if provided for by
its articles of incorporation, bylaws, general or specific action of its board
of directors or contract.
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Section 16-10a-908 of the UBCA provides that a corporation may purchase
and maintain liability insurance on behalf of a person who is or was a director,
officer, employee, fiduciary, or agent of the corporation or who, while serving
as a director, officer, employee, fiduciary, or agent of the corporation, is or
was serving at the request of the corporation as a director, officer, partner,
trustee, employee, fiduciary, or agent of another foreign or domestic
corporation or other person, or of an employee benefit plan against liability
asserted against or incurred by the individual in that capacity or arising from
his status as such, whether or not the corporation would have the power to
indemnify him or her against the same liability under Sections 902, 903 or 907
of the UBCA.
Section 16-10a-909 of the UBCA provides that a provision treating a
corporation's indemnification of or advance for expenses to, directors that is
contained in its articles of incorporation or bylaws, in a resolution of its
stockholders or board of directors or in a contract, (except an insurance
policy), or otherwise, is valid only if and to the extent the provision is not
inconsistent with Sections 901 through 909 of the Revised Act. If the articles
of incorporation limit indemnification or advancement of expenses,
indemnification and advancement of expenses are valid only to the extent not
inconsistent with the articles.
The Company's Articles of Incorporation, as amended, provide that the
personal liability of a Director to the Company or its shareholders for monetary
damages for breach of fiduciary duty is limited to the fullest extent permitted
by Section 16-10-49.1 of the Utah Business Corporation Act, as the same may be
amended from time to time. In the event such Section is amended to decrease or
limit in any manner the protection or rights currently available to Directors,
such amendment shall not be retroactively applied in determining the personal
liability of a Director pursuant to Company's Articles of Incorporation prior to
the enactment of such amendment.
The foregoing description is necessarily general and does not describe
all details regarding the indemnification of officers, directors or controlling
persons of the Company.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following is a list of exhibits filed as part of this Registration
Statement, which are incorporated herein:
Exhibit Number Exhibit
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4.1(1) Dynatronics Corporation 2005 Equity Incentive Award Plan
5.1 Opinion and Consent of Durham, Jones & Pinegar, P.C. as to the
legality of the issuance of Common Stock offered hereby
23.1 Consent of Tanner LC, Independent Registered Public Accounting
Firm.
23.2 Consent of Durham, Jones & Pinegar, P.C. (included in Exhibit
5.1).
24.1 Power of Attorney (included in the signature pages to this
Registration Statement).
(1) Incorporated herein by reference to the Company's Definitive Proxy
Statement on Schedule 14A (File No. 000-12697) filed with the
Securities and Exchange Commission on October 27, 2005.
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, as amended
(the "Act");
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of this
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) (ss.230.424(b)
of this chapter) 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;
(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) shall not
apply to information contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the 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 Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section
15(d) of the Exchange Act (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to section 15(d)
of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 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
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Salt Lake City, State of Utah on this 15th day of February,
2006.
DYNATRONICS CORPORATION
By: /s/ KELVYN H. CULLIMORE, JR.
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Kelvyn H. Cullimore, Jr.
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
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KNOW ALL PERSONS BY THESE PRESENTS:
Each person whose signature appears below does hereby constitute and
appoint Kelvyn H. Cullimore, Jr. and Terry M. Atkinson, and each of them, with
full power of substitution and full power to act without the other, his true and
lawful attorney-in-fact and agents to act for him in his name, place and stead,
in any and all capacities, to sign a registration statement on Form S-8 and any
or all amendments thereto (including without limitation any post-effective
amendments thereto), and any registration statement for the same offering that
is to be effective under Rule 462(b) of the Securities Act, and to file each of
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 in order to effectuate the same as fully, to all intents
and purposes, as they or he might or could do in person, 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.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons on
behalf of the Registrant and in the capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ KELVYN H. CULLIMORE, JR. Chairman of the Board, President and Chief February 15, 2006
------------------------------- Executive Officer (Principal Executive Officer)
Kelvyn H. Cullimore, Jr.
/s/ TERRY M. ATKINSON Chief Financial Officer (Principal Financial February 15, 2006
------------------------------- and Accounting Officer)
Terry M. Atkinson
/s/ LARRY K. BEARDALL Executive Vice President and Director February 15, 2006
-------------------------------
Larry K. Beardall
/s/ HOWARD L. EDWARDS Director February 15, 2006
-------------------------------
Howard L. Edwards
/s/ VAL J. CHRISTENSEN Director February 15, 2006
-------------------------------
Val J. Christensen
/s/ JOSEPH H. BARTON Director February 15, 2006
-------------------------------
Joseph H. Barton
------------------------------- Director
E. Keith Hansen, M.D.
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EXHIBIT INDEX
Exhibit Number Exhibit
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4.1(1) Dynatronics Corporation 2005 Equity Incentive Award Plan
5.1 Opinion and Consent of Durham, Jones & Pinegar, P.C. as to the
legality of the issuance of Common Stock offered hereby
23.1 Consent of Tanner LC, Independent Registered Public Accounting
Firm.
23.2 Consent of Durham, Jones & Pinegar, P.C. (included in Exhibit
5.1).
24.1 Power of Attorney (included in the signature pages to this
Registration Statement).
(1) Incorporated herein by reference to the Company's Definitive Proxy
Statement on Schedule 14A (File No. 000-12697) filed with the
Securities and Exchange Commission on October 27, 2005.
7