As filed with the Securities and Exchange Commission on June 3, 1997
Registration No. 333-________
-----------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DIGITAL DICTATION, INC.
------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 52-1451022
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
8230 Old Courthouse Road
Vienna, Virginia 22182
(Address of principal executive offices)
--------------------------------------------------------------
Digital Dictation, Inc.
1996 Non-Qualified Stock Option Plan
Employee Stock Purchase Plan
(Full title of the plan)
Richard D. Cameron
President
Digital Dictation, Inc.
8230 Old Courthouse Road
-------------------------------------------------------
Vienna, Virginia 22182
(Name, address and telephone number, including area code, of agent for service)
Copy to:
David B.H. Martin, Jr., Esq.
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-6858
CALCULATION OF REGISTRATION FEE
- --------------- --------------- --------------- ----------------- --------------
Proposed Proposed
Title of Amount to be maximum maximum Amount of
securities to registered offering price aggregate registration
be registered per share (1) offering price(1) fee (1)
- --------------- --------------- --------------- ----------------- --------------
Common Stock,
par value $.01 1,450,000 $1.50 $2,175,000 $660
per share
- --------------- --------------- --------------- ----------------- --------------
(1) Estimated pursuant to Rule 457(c) and (h) solely for purposes of calculating
the amount of the registration fee, based on the average of the bid and asked
price per share of Digital Dictation, Inc. common stock, par value $.01 per
share, on May 30, 1997.
<PAGE>
- 4 -
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
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"). In accordance with
the instructions to Part I of Form S-8, such documents will not be filed with
the Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Digital Dictation, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents filed by it with the
Commission:
(a) The Registrant's Annual Report on Form 10-KSB for
the fiscal year ended December 31, 1996;
(b) All reports filed with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") since December 31, 1996;
and
(c) The description of the Registrant's common stock,
$.01 par value per share (the "Common Stock")
contained in the Registrant's Registration Statement
on Form 10-SB filed with the Commission on October
23, 1995.
In addition, all documents and reports filed by the Registrant
subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14, or 15(d) of
the Exchange Act, and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference in
this Registration Statement and to be part of hereof from the date of filing of
such documents or reports. 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 subsequent 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 (the Common Stock is registered under Section
12 of the Exchange Act).
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Each director and officer of the Registrant is insured and
indemnified against liability incurred by him or her in his or her capacity as
an officer and/or director pursuant to the following:
(a) Section 6 of the Registrant's Amended and Restated
Certificate of Incorporation (the "Certificate of Incorporation"), entitled
"Indemnification," provides for indemnification of directors and officers to the
fullest extent permitted by the laws of the State of Delaware. Section 5.2
limits the liability of directors and officers as permitted by such laws.
Sections 5.2 and 6 of the Registrant's Certificate of Incorporation are included
in Exhibit 4.1 to this Registration Statement and are incorporated herein by
reference.
(b) Section 145 of the General Corporation Law of the State of
Delaware, which is set forth as Exhibit 99.1 to this Registration Statement and
is incorporated herein by reference.
* * *
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
therefore is unenforceable. In the event that a claim for indemnification
against such liabilities is asserted by such person in connection with the
offering of the Common Stock (other than for 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) 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 of whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of the issue.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
4.1 Amended and Restated Certificate of
Incorporation of Registrant (incorporated by
reference to Exhibit 2.1 to Registration
Statement on Form 10-SB (File No.
0-27052)).
4.2 Amended and Restated Bylaws of the
Registrant, as amended (incorporated by
reference to Exhibit 2.2 to Registration
Statement on Form 10-SB (File No.
0-27052)).
4.3 Form of Common Stock Certificate
(incorporated by reference to Exhibit 3 to
Registration Statement on Form 10-SB (File
No. 0-27052).
4.4 Shareholders' Agreement (incorporated by
reference to Exhibit 5 to Registration
Statement on Form 10-SB (File No. 0-27052)).
4.5 Agreement and Plan of Merger by and
among Registrant, SonoChem, Inc. and
Principal SonoChem Stockholders
(incorporated by reference to Exhibit 12 to
Registration Statement on Form 10-SB (File
No. 0-27052)).
5.1 Opinion of Hogan & Hartson L.L.P. regarding
the legality of the securities being
registered. 23.1 Consent of Hozik & Charin.
23.2 Consent of Hogan & Hartson L.L.P.
(included in their opinion filed as Exhibit
5.1 hereto).
24.1 Power of Attorney (included on signature
page).
99.1 Section 145 of the General Corporation Law
of the State of Delaware.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) 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;
(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)(i) and (a)(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 Exchange Act that are incorporated
by reference in the Registration Statement.
(b) 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.
(c) 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.
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 (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 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.
The undertaking concerning indemnification is set forth under
the response to Item 6.
<PAGE>
- 5 -
Pursuant to the requirements of the Securities Act, 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 County of Fairfax, Commonwealth of Virginia, on May 30, 1997.
Digital Dictation, Inc.
By: /s/ Richard D. Cameron
Richard D. Cameron
President, Chief
Executive Officer and
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard D. Cameron as true and lawful
attorney-in-fact, with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any 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, hereby ratifying and confirming all that said attorney-in-fact, 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, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Richard D. Cameron Principal Executive Officer May 30, 1997
- ------------------------ and Director
Richard D. Cameron
/s/ Gerald H. Gruber Principal Financing and Accounting May 30, 1997
- ------------------------ Officer
Gerald H. Gruber
/s/ Myron A. Wick, III Chairman of the Board of Directors May 30, 1997
- ------------------------
Myron A. Wick, III
/s/ Charles C. McGettigan Director May 30, 1997
- ------------------------
Charles C. McGettigan
/s/ Bert I.Helfinstein Director May ___, 1997
- ------------------------
Bert I. Helfinstein
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description Page
4.1 Amended and Restated Certificate of Incorporation of *
Registrant (incorporated by reference to Exhibit 2.1
to Registration Statement on Form 10-SB (File No. 0-27052)).
4.2 Amended and Restated Bylaws of the Registrant, as amended *
(incorporated by reference to Exhibit 2.2 to Registration
Statement on Form 10-SB (File No. 0-27052)).
4.3 Form of Common Stock Certificate (incorporated by *
reference to Exhibit 3 to Registration Statement on Form
10-SB (File No. 0-27052)).
4.4 Shareholders' Agreement (incorporated by reference to *
Exhibit 5 to Registration Statement on Form 10-SB
(File No. 0-27052)).
4.5 Agreement and Plan of Merger by and among Registrant, *
SonoChem, Inc. and Principal SonoChem Stockholders
(incorporated by reference to Exhibit 12 to
Registration Statement on Form 10-SB (File No. 0-27052)).
5.1 Opinion of Hogan & Hartson L.L.P.
23.1 Consent of Hozik & Charin.
23.2 Consent of Hogan & Hartson L.L.P. (See Exhibit 5.1)
24.1 Power of Attorney (included on signature page).
99.1 Section 145 of the General Corporation Law of the State of
Delaware.
*incorporated by reference
<PAGE>
Exhibit 5.1
Opinion of Hogan & Hartson L.L.P.
<PAGE>
Board of Directors
May 30, 1997
Page 3
May 30, 1997
Board of Directors
Digital Dictation, Inc.
8230 Old Courthouse Road
Vienna, Virginia 22182
Dear Gentlemen:
This firm has acted as counsel to Digital Dictation, Inc. (the
"Company"), a Delaware corporation, in connection with its registration,
pursuant to a registration statement on Form S-8 filed on or about the date
hereof (the "Registration Statement"), of 1,450,000 shares (the "Shares") of
common stock, par value $.01 per share of the Company ("Common Stock"), issuable
upon (i) the exercise of options granted under the Digital Dictation, Inc. 1996
Non-Qualified Stock Option Plan (the "Option Plan") and (ii) the sale of shares
under the Digital Dictation, Inc. Employee Stock Purchase Plan (the "Purchase
Plan," and together with the Option Plan, the "Plans"). This letter is furnished
to you pursuant to the requirements of Item 601(b)(5) of Regulation S-K, 17
C.F.R. ss. 229.601(b)(5), in connection with such registration.
For purposes of this opinion, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. A copy of the Option Plan, as certified on May 30,
1997, by the Chief Executive Officer of the Company
as then being complete, accurate and in effect.
3. A copy of the Purchase Plan, as certified on May 30,
1997, by the Chief Executive Officer of the Company
as then being complete, accurate and in effect.
4. The Amended and Restated Certificate of Incorporation
of the Company, as amended, as certified on May 7,
1997 by the Secreatary of State of the State of
Delaware and on May 30, 1997 by the Chief Executive
Officer of the Company as then being complete,
accurate and in effect.
5. The Amended and Restated By-laws of the Company, as
amended, as certified on May 30, 1997 by the Chief
Executive Officer of the Company as then being
complete, accurate and in effect.
6. Resolutions of the Board of Directors of the Company
adopted by unanimous written consent on March 14,
1996 and December 10, 1996, all of the foregoing
resolutions as certified by the Chief Executive
Officer of the Company on May 30, 1997 as then being
complete, accurate and in effect.
7. Resolutions of the stockholders of the Company
adopted on December 10, 1996, as certified by the
Chief Executive Officer of the Company on May 30,
1997 as then being complete, accurate and in effect.
We have not, except as specifically mentioned above, made any
independent review or investigation of the organization, existence, good
standing, assets, business or affairs of the Company or its subsidiaries, or of
any other matters. In our examination of the aforesaid certificates, records,
and documents, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, and the authenticity and conformity with the original documents of
all documents submitted to us as certified, telecopied, photostatic, or
reproduced copies. We have assumed the authenticity and accuracy of the
foregoing certifications of corporate officers, on which we are relying, and
have made no independent investigations thereof.
We have not, except as specifically identified herein, been
retained or engaged to perform, nor have we performed, any independent review or
investigation of any statutes, ordinances, laws, regulations, agreements,
contracts, instruments, or corporate records to which the Company or any of its
property may be a party or may be subject. This opinion is given in the context
of the foregoing.
This opinion is based as to matters of law solely on the
General Corporation Law of the State of Delaware, as amended, and we express no
opinion as to any other laws, statutes, regulations, or ordinances, including
without limitation any federal or state tax or securities laws or regulations.
We note that our firm only requires lawyers to be qualified to practice law in
the District of Columbia, Virginia, or Maryland.
Based upon, subject to, and limited by the foregoing, we are
of the opinion that the Shares, when issued and delivered in the manner and on
the terms contemplated in the Registration Statement and the Plans (with the
Company having received the consideration therefor, the form of which is in
accordance with applicable law), will be validly issued, fully paid and
non-assessable.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion. This opinion has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this letter, and should not be quoted in whole or in
part or otherwise be referred to, nor be filed with or furnished to any
governmental agency or other person or entity, without the prior written consent
of this form.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. Nothing herein shall be construed to cause us to
be considered "experts" within the meaning of Section 11 of the Securities Act
of 1933, as amended, or the rules thereunder.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 15, 1997, which appears on
page 15 of Digital Dictation's Annual Report on Form 10-KSB for the year ended
December 31, 1996. We also consent to the incorporation by reference of our
report on the Financial Statement Schedule, which appears on page 14 of such
Annual Report on Form 10-KSB.
/s/ Hozik & Charin
April 25, 1997
<PAGE>
3
Exhibit 99.1
Section 145 of the General Corporation Law of the State of
Delaware provides as follows:
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of this section, or defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section (unless
ordered by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation as
authorized in this section. Such expenses (including attorneys' fees) incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the corporation" shall include,
in addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employee or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
<PAGE>
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to hear
and determine all actions for advancement of expenses or indemnification brought
under this section or under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).
