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As filed with the Securities and Exchange Commission on November 5, 1997.
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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OMTOOL, LTD.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 02-0447481
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
8 Industrial Way
Salem, New Hampshire 03079
(Address of Principal Executive Offices) (Zip Code)
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1996 Stock Option Plan
1997 Stock Plan
1997 Employee Stock Purchase Plan
(Full Title of the Plans)
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Robert L. Voelk
Chief Executive Officer
Omtool, Ltd.
8 Industrial Way
Salem, New Hampshire 03079
(603) 898-8900
(Name and Address Including Zip Code and Telephone Number,
Including Area Code, of Agent for Service)
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Copy to:
John A. Meltaus, Esq.
Testa, Hurwitz & Thibeault, LLP
High Street Tower, 125 High Street
Boston, Massachusetts 02110
(617) 248-7000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Per Offering Registration
be Registered Registered Share Price Fee
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<S> <C> <C> <C> <C>
1996 STOCK OPTION PLAN
Common Stock (Par Value $.01) 888,837 shares $ 0.25(1) $ 222,209.25 $ 67.34
246,200 shares $ 1.85(1) $ 455,470.00 $ 138.03
20,250 shares $ 5.50(1) $ 111,375.00 $ 33.75
3,000 shares $ 6.50(1) $ 19,500.00 $ 5.91
4,500 shares $ 6.75(1) $ 30,375.00 $ 9.21
3,000 shares $ 7.25(1) $ 21,750.00 $ 6.60
500 shares $ 7.50(1) $ 3,750.00 $ 1.14
1,500 shares $ 7.75(1) $ 11,625.00 $ 3.53
18,700 shares $ 8.00(1) $ 149,600.00 $ 45.34
56,200 shares $ 8.25(1) $ 463,650.00 $ 140.50
15,000 shares $ 8.50(1) $ 127,500.00 $ 38.64
22,000 shares $ 9.00(1) $ 198,000.00 $ 60.00
1997 STOCK PLAN
Common Stock (Par Value $.01) 16,000 shares $12.1250(1) $ 194,000.00 $ 58.79
50,500 shares $11.0000(1) $ 555,500.00 $ 168.34
1,733,500 shares $12.0625(2) $20,910,343.75 $6,336.47
1997 EMPLOYEE STOCK PURCHASE PLAN
Common Stock (Par Value $.01) 200,000 shares 12.0625(2) $ 2,412,500.00 $ 731.07
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TOTAL: 3,279,687 shares $25,887,148.00 $7,844.66
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</TABLE>
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(1) Such shares are issuable upon exercise of outstanding options with fixed
exercise prices. Pursuant to Rule 457(h), the aggregate offering price and
the fee have been calculated upon the basis of the price at which such
options may be exercised.
(2) The price of $12.0625 per share, which is the average of the high and low
prices of the common stock of the registrant reported on the Nasdaq
National Market on October 30, 1997, is set forth solely for purposes of
calculating the filing fee pursuant to Rule 457(c) and (h).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION.
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in this Item 2 will
be sent or given to employees as specified by Rule 428(b)(1). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) Registrant's Prospectus dated and filed August 8, 1997 pursuant
to Rule 424(b)(4) of the Securities Act of 1933, as amended
(the "Securities Act"), in Registration Statement No.
333-29397 on Form S-1, as amended (the "S-1"); and
(b) The section entitled "Description of Registrant's Securities to
be Registered," contained in the Registrant's Registration
Statement on Form 8-A, filed on July 22, 1997 pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein 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 hereof from the date of filing of such documents.
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Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law and the Registrant's Restated
Certificate of Incorporation and By-Laws provide for indemnification of the
Registrant's directors and officers for liabilities and expenses that they may
incur in such capacities. In general, directors and officers are indemnified
with respect to actions taken in good faith in a manner reasonably believed to
be in, or not opposed to, the best interests of the Registrant, and with respect
to any criminal action or proceeding, actions that the indemnitee had no
reasonable cause to believe were unlawful. Reference is made to the Registrant's
Form of Amended and Restated Certificate of Incorporation and Form of Amended
and Restated By-Laws filed as Exhibits 3.3 and 3.5 to the Registrant's S-1.
The Underwriting Agreement provides that the Underwriters are
obligated, under certain circumstances, to indemnify directors, officers and
controlling persons of the Registrant against certain liabilities, including
liabilities under the Securities Act. Reference is made to the Form of
Underwriting Agreement filed as Exhibit 1.1 to the Registrant's S-1.
The Registrant has entered into separate indemnification agreements
with each of its directors and executive officers, whereby the Registrant
agreed, among other things, (i) to indemnify them to the fullest extent
permitted by the Delaware General Corporation Law, subject to specified
limitations, against certain liabilities actually and reasonably incurred by
them in any proceeding in which they are a party that may arise by reason of
their status as directors, officers, employees or agents or may arise by reason
of their serving as such at the request of the Registrant for another entity and
(ii) to advance their expenses incurred as a result of any proceeding against
them as to which they could be indemnified. Reference is made to the Form of
Indemnification Agreement filed as Exhibit 4.2 to the Registrant's S-1.
The Registrant has obtained directors and officers liability insurance
for the benefit of its directors and certain of its officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
Exhibit No. Description of Exhibit
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Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
(filed herewith).
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Exhibit 23.1 Consent of Testa, Hurwitz & Thibeault, LLP
(contained in Exhibit 5.1).
Exhibit 23.2 Consent of Arthur Andersen LLP (filed
herewith).
Exhibit 24.1 Power of Attorney (included as part of the
signature page to this Registration
Statement).
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 the amount 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) under the Securities Act if, in
the aggregate, the changes in amount and price
represent no more than a 20 percent change in
maximum aggregate offering price set forth in
the "Calculation of the 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) 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
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,
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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 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.
(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 Securities Act of 1933 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 of
1933 and will be governed by the final adjudication of such
issue.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Omtool, Ltd., 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 Salem, State of New Hampshire, on this
5th day of November, 1997.
OMTOOL, LTD.
By: /s/ Robert L. Voelk
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Robert L. Voelk
Chairman and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Omtool, Ltd. hereby
severally constitute and appoint Robert L. Voelk and Darioush Mardan, and each
of them singly, our true and lawful attorneys, with full power to them and each
of them singly, to sign for us in our names in the capacities indicated below,
any amendments to this Registration Statement on Form S-8 (including
post-effective amendments), and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, and generally to do all things in our names and on our behalf in our
capacities as officers and directors to enable Omtool, Ltd. to comply with the
provisions of the Securities Act of 1933, as amended, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said Registration Statement and all amendments thereto.
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(S) DATE
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<S> <C> <C>
/s/ Robert L. Voelk Chief Executive Officer and November 5, 1997
- ----------------------------- Chairman of the Board of
Robert L. Voelk Directors (Principal
Executive Officer)
/s/ Martin A. Schultz President and Director November 5, 1997
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Martin A. Schultz
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE
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<S> <C> <C>
/s/ Darioush Mardan Vice President of Finance, November 5, 1997
- ----------------------------- Chief Financial Officer,
Darioush Mardan Treasurer and Secretary
(Principal Financial and
Accounting Officer)
/s/ Richard D. Cramer Director November 5, 1997
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Richard D. Cramer
/s/ Bruce R. Evans Director November 5, 1997
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Bruce R. Evans
/s/ Anthony J. Mark Director November 5, 1997
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Anthony J. Mark
/s/ William C. Styslinger, III Director November 5, 1997
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William C. Styslinger, III
</TABLE>
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Exhibit Index
Exhibit No. Description of Exhibit
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5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (contained in
Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included as part of the signature page to
this Registration Statement)
<PAGE> 1
Exhibit 5.1
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November 5, 1997
Omtool, Ltd.
8 Industrial Way
Salem, New Hampshire 03079
Re: Registration Statement on Form S-8 Relating to the 1996 Stock
Option Plan, the 1997 Stock Plan and the 1997 Employee Stock
Purchase Plan of Omtool, Ltd. (the "Plans")
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Ladies and Gentlemen:
Reference is made to the above-captioned Registration Statement on Form
S-8 (the "Registration Statement") filed by Omtool, Ltd. (the "Company") on the
date hereof with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, relating to an aggregate of 3,279,687 shares of Common
Stock, $.01 par value, of the Company issuable pursuant to the Plans (the
"Shares").
We have examined, and are familiar with, and have relied as to factual
matters solely upon, a copy of the Plans, the Amended and Restated Certificate
of Incorporation and the Amended and Restated By-Laws of the Company, the minute
books and stock records of the Company and originals of such other documents,
certificates and proceedings as we have deemed necessary for the purpose of
rendering this opinion.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and paid for in accordance with the terms of
the Plans and any related agreements with the Company, will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
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Exhibit 23.2
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated March 24, 1997
included in Omtool, Ltd.'s registration statement on Form S-1 (File No.
333-29397) and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
November 4, 1997
