As filed with the Securities and Exchange Commission on April 15, 1999.
File No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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VIALOG Corporation
(Exact name of registrant as specified in its charter)
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MASSACHUSETTS 04-3305282
(State or other jurisdiction of (I.R.S Employer Identification Number)
incorporation or organization)
---------------------
35 New England Business Center
Suite 160
Andover, Massachusetts 01810
(Address of Principal Executive Offices)
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VIALOG CORPORATION
1996 Stock Plan
(Full title of the plan)
---------------------
GLENN D. BOLDUC
President and Chief Executive Officer
VIALOG CORPORATION
35 New England Business Center, Suite 160
Andover, Massachusetts 01810
(Name and address of agent for service)
(978) 975-3700
(Telephone number, including area code, of agent for service)
---------------------
Copy to:
DAVID L. LOUGEE, ESQ.
Mirick, O'Connell, DeMallie & Lougee, LLP
1700 BankBoston Tower
100 Front Street
Worcester, Massachusetts 01608-1477
(508) 791-8500
CALCULATION OF REGISTRATION FEE
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------- --------------- --------------------- ----------------------- ----------------------------
Amount to Proposed maximum Proposed
Title of securities be offering price per maximum aggregate Amount of
to be registered registered(1) share (4) offering price (4) registration fee
- ----------------------------------------- --------------- --------------------- ----------------------- ----------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value........... 1,722,766 (2) $4.731 $8,150,405.95 $2,265.81
Common Stock, $.01 par value........... 707,331 (3) $3.750 $2,652,491.25 $ 737.39
- ----------------------------------------- --------------- --------------------- ----------------------- ----------------------------
</TABLE>
(1) Pursuant to Rule 416(b), this Registration Statement also relates to such
indeterminate number of additional shares as may be necessary to satisfy
the antidilution provisions of the 1996 Stock Plan (the "Option Plan") to
which this Registration Statement relates.
(2) Represents of all shares reserved for issuance upon exercise of options
under the Option Plan which are currently outstanding.
(3) Represents all shares reserved for issuance upon exercise of options
reserved for grant uner the Option Plan.
(4) The proposed maximum offering price per share of Common Stock and the
proposed maximum aggregate offering price are calculated solely for the
purpose of determining the registration fee pursuant to Rule 457(h) under
the Securities Act of 1933. With respect to 1,722,766 shares of Common
Stock as to which outstanding options were granted prior to the date of
this Registration Statement, the registration fee is based on the weighted
average exercise price per share of $4.731. With respect to the balance of
707,331 shares being registered, the fee is based on a price of $3.75 per
share, which is the average of the high and low sale prices of the Common
Stock on April 13, 1999, as quoted on the Nasdaq National Market.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
VIALOG Corporation (the "Registrant" or the "Company") hereby incorporates
by reference the following documents:
(a) The Company's Annual Report on Form 10-K, File No. 333-22585, for the
fiscal year ended December 31, 1998 as filed with the Securities and Exchange
Commission on March 31, 1999.
(b) All of the reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since December 31, 1998.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1, File No. 333-53395, filed on May
22, 1998, as amended on July 8, 1998, July 27, 1998, December 31, 1998 and
January 8, 1999.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Age of 1934 and prior to filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the authorization and issuance of the Common Stock offered
hereby will be passed upon for the Company by Mirick, O'Connell, DeMallie &
Lougee, LLP, Worcester, Massachusetts. David L. Lougee, a partner in such firm,
is a director of the Company. Partners and associates of Mirick, O'Connell,
DeMallie & Lougee, LLP own an aggregate of 68,000 shares of the Company's Common
Stock and hold options to acquire an additional 20,000 shares, 7,338 of which
may be exercised as of April 1, 1999.
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 67 of Chapter 156B of the Massachusetts General Laws, or the
Massachusetts Business Corporation Law (the "MBCL"), provides that the
indemnification of directors, officers, employees or other agents of another
organization, or who serve at its request as directors, officers, employees or
other agents of another organization, or who serve at its request in any
capacity with respect to any employee benefit plan, may be provided by it to
whatever extent shall be specified in or authorized by (i) the articles of
organization or (ii) a by-law adopted by the stockholders or (iii) a vote
adopted by the holders of a majority of the shares of stock entitled to vote on
the election of directors. Except as the articles of organization or by-laws
otherwise require, indemnification of any persons who are not directors of the
corporation may be provided by it to the extent authorized by the directors.
Such indemnification may include payment by the corporation of expenses incurred
in defending a civil or criminal action or proceeding in advance of the final
disposition of such action or proceeding, upon receipt of an undertaking by the
person indemnified to repay such payment if he shall be adjudicated to be
entitled to indemnification, which undertaking may be accepted without reference
to the financial ability of such person to make repayment. Any such
indemnification may be provided although the person to be indemnified is no
longer an officer, director, employee or agent of the corporation or of such
other organization or no longer serves with respect to any such employee benefit
plan. Section 67 further provides that no indemnification shall be provided for
any person with respect to any matter as to which he shall have been adjudicated
in any proceeding not to have acted in good faith in the reasonable belief that
his action was in the best interest of the corporation or to the extent that
such matter relates to service with respect to any employee benefit plan, in the
best interest of the participants or beneficiaries of such employee benefit
plan. Article VI of the Company's Articles of Organization provides that the
Company shall, to the fullest extent permitted by the laws of the Commonwealth
of Massachusetts, indemnify each person who is, or shall have been, a director,
officer, employee or agent of the Company, or who is serving or shall have
served, at the request of the Company, as director or officer of another
organization or in any capacity with respect to any employee benefit plan of the
Company, against all liabilities and expenses (including judgments, fines,
penalties, amounts paid or to be paid in settlement and reasonable attorney's
fees) imposed upon or incurred by any such person in connection with or arising
out of claims made, or any action, suit or proceeding threatened or brought
against him or in which he may be involved by reason of any action taken or
omitted by him as a director, officer, employee or agent, or as a result of any
service with respect to any such employee benefit plan.
Section 13(b)(1 1/2) of Chapter 156B of the MBCL permits a corporation
to include in its articles of organization a provision eliminating or limiting
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 61 or 62 of the
MBCL (relating to unlawful payment of dividends, unlawful stock purchase and
redemption and loans to insiders) or (iv) for any transaction from which the
director derived an improper personal benefit. Article VI of the Company's
Articles of Organization provides that the Company's directors shall not be
liability to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a directors, except in the circumstances that are set forth in
the MBCL.
<PAGE>
The effect of these provisions is to permit indemnification by the
Company for, among other liabilities, liabilities arising out of the Securities
Act.
Section 67 of the MBCL also affords a Massachusetts corporation the
power to obtain insurance on behalf of its directors and officers against
liabilities incurred by them in those capacities. The Company currently
maintains a $5,000,000 Directors and Officers Liability Insurance Policy.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
4.1 Restated Articles of Organization of the Company (incorporated by
reference to Exhibit 3.1 of the Company's Registration Statement on
Form S-4 (File No. 333-44041)
4.2 Amended and Restated By-Laws of the Company (incorporated by reference
to Exhibit 3.2 of the Company's Registration Statement on Form S-4
(File No. 333-44041)
4.3 1996 Stock Plan (incorporated by reference to Exhibit 10.1 of the
Company's Registration Statement on Form S-4 (File No. 333-44041)
5.1 Opinion of Mirick, O'Connell, DeMallie & Lougee, LLP
23.1 Consent of KPMG Peat Marwick LLP, Independent Certified Public
Accountants
23.2 Consent of Mirick, O'Connell, DeMallie & Lougee, LLP (included in
Exhibit 5.1)
24 Power of Attorney (included on signature pages)
</TABLE>
Item 9. Undertakings.
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;
<PAGE>
(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)(l)(i) and (a)(l)(ii) do not apply if 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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.
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.
<PAGE>
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 Town of Andover, Commonwealth of Massachusetts on April
9, 1999.
VIALOG Corporation
By: /s/ Glenn D. Bolduc
------------------------------------
Glenn D. Bolduc, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that VIALOG CORPORATION, a corporation
organized under the laws of the Commonwealth of Massachusetts (the
"Corporation"), and the undersigned officers and directors of the Corporation,
individually and in their respective capacities indicated below, hereby make,
constitute and appoint GLENN D. BOLDUC and JOHN J. DION its and their true and
lawful attorneys, their separate or joint signatures sufficient to bind, with
power of substitution, to execute, deliver and file in its or their behalf, and
in each person's respective capacity or capacities as shown below, with the
Securities and Exchange Commission (or any other governmental authority) a
Registration Statement on Form S-8 under the Securities Act of 1933, as amended,
any amendments to and any and all documents in support of or supplemental to
said registration statement by the Corporation and each said person hereby
grants to said attorneys full power and authority to do and perform each and
every act and thing whatsoever as any one of said attorneys may deem necessary
or advisable to carry out the full intent of this Power of Attorney to the same
extent and with the same effect as the Corporation or the undersigned officers
and directors of the Corporation might or could do personally in its or their
capacity or capacities as aforesaid; and each of said persons hereby ratifies,
confirms, and approves all acts and things that any one of said attorneys may do
or cause to be done by virtue of this Power of Attorney and its signature or
their signatures as the same may be signed by any one of said attorneys to said
registration statement and any and all documents in support of or supplemental
to said Registration Statement and any and all amendments thereto.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Glenn D. Bolduc President, Chief Executive Officer and April 9, 1999
- ------------------------------ Director
Glenn D. Bolduc
Vice President-Finance, Treasurer, April 9, 1999
/s/ John J. Dion Principal Financial Officer and Principal
- ------------------------------ Accounting Officer
John J. Dion
/s/ Joanna M. Jacobson
- ------------------------------ Director April 9, 1999
Joanna M. Jacobson
/s/ David L. Lougee
- ------------------------------ Director April 9, 1999
David L. Lougee
/s/ Patti R. Bisbano
- ------------------------------ Director April 9, 1999
Patti R. Bisbano
/s/ Richard G. Hamermesh
- ------------------------------ Director April 9, 1999
Richard G. Hamermesh
/s/ Edward M. Philip
- ------------------------------ Director April 9, 1999
Edward M. Philip
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
4.1 Restated Articles of Organization of the Company
(incorporated by reference to Exhibit 3.1 of the
Company's Registration Statement on Form S-4 (File
No. 333-44041)
4.2 Amended and Restated By-Laws of the Company
(incorporated by reference to Exhibit 3.2 of the
Company's Registration Statement on Form S-4 (File
No. 333-44041)
4.3 1996 Stock Plan (incorporated by reference to Exhibit
10.1 of the Company's Registration Statement on Form
S-4 (File No. 333-44041)
5.1 Opinion of Mirick, O'Connell, DeMallie & Lougee, LLP
23.1 Consent of KPMG Peat Marwick LLP, Independent
Certified Public Accountants
23.2 Consent of Mirick, O'Connell, DeMallie & Lougee, LLP
(included in Exhibit 5.1)
24 Power of Attorney (included on signature pages)
</TABLE>
Exhibit 5.1
OPINION OF MIRICK, O'CONNELL, DeMALLIE & LOUGEE, LLP
April 15, 1999
Ladies and Gentlemen:
We are general counsel to VIALOG Corporation, a Massachusetts
corporation (the "Company"). We are familiar with the corporate proceedings
taken in connection with the adoption of the Company's 1996 Stock Plan (the
"Plan"). We are also familiar with the registration statement on Form S-8 to
which a copy of this opinion will be attached as an exhibit.
We have examined the corporate records of the Company, including the
Restated Articles of Organization, By-laws, stock records, minutes of meetings
of its Board of Directors and stockholders and such other documents as we have
deemed necessary as a basis for the opinions herein expressed.
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that:
1. The Company is duly organized and validly existing under the laws of
the Commonwealth of Massachusetts.
2. The Company is authorized to issue 30,000,000 shares of Common
Stock, $.01 par value and 10,000,000 shares of Preferred Stock, $.01 par value.
3. The shares of common stock issuable pursuant to the Plan, when sold
in accordance with the terms thereof, will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8.
Very truly yours,
/s/ Mirick, O'Connell, DeMallie & Lougee, LLP
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
VIALOG Corporation:
We consent to the incorporation by reference in the Registration
Statement of VIALOG Corporation (the "Company") on Form S-8 of our reports
included in the Company's Annual Report on Form 10-K (File No. 333-22585) filed
with the Securities and Exchange Commission pursuant to the Securities Act of
1933.
/s/ KPMG Peat Marwick LLP
Boston, Massachusetts
April 9, 1999
