<PAGE> 1
As filed with the Securities and Exchange Commission on December 21, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DIDAX INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 54-1831588
---------- -------------
(State or other jurisdiction of (I.R.S. Employer
of incorporation or organization) Identification No.)
Address
---------
4206 F Technology Court
Chantilly, VA 20151
(703) 968-4808
(Address and telephone number of principal executive offices)
DIDAX INC. 1997 STOCK OPTION PLAN
---------------------------------------------------------------------------
(Full title of plan)
Willam M. Parker
4206 F Technology Court
Chantilly, VA 20151 (703)968-4808 Ext. 13
(Name, address and telephone number of agent for service)
Copies to:
Charles J. Rennert, Esq.
Berman Wolfe & Rennert, P.A.
NationsBank Tower, 35th Floor
100 Southeast Second Street, Miami, Florida 33131-2130
305-577-4171
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed
Title of Securities Amount to Offering Price Maximum Aggregate Amount of
to be Registered be Registered Per Share(1) Offering Price (1) Registration Fee
- ------------------------------------------------------------------------------------------------------------
Common Stock
<S> <C> <C> <C> <C>
par value $.01 per share 2,057,937 $9.0313 $18,585,846 $5,483(1)
</TABLE>
- -------------------
(1) Estimated solely for the purpose of calculating the registration fee on the
basis of the average of the high and low prices of the Registrant's Common
Stock as reported on the Nasdaq SmallCap Market on December 14, 1998, the
latest practicable date prior to the filing of this Registration Statement.
<PAGE> 2
PREFACE
In April 1997, the Board of Directors adopted, and the stockholders approved
the Company's 1997 Stock Option Plan (the "Option Plan"). The purpose of the
Option Plan is to advance the interests of the Company by providing an
opportunity to its directors, employees and consultants, including ministry
partners, to purchase shares of the Company's Common Stock. By encouraging
stock ownership, the Company seeks to attract, retain and motivate directors,
employees and consultants. The Option Plan provides for the grant of (i)
incentive stock options ("Incentive Options") as described in Section 422A of
the Internal Revenue Code of 1986, as amended (the "Code"); (ii) nonqualified
stock options ("Nonqualified Options," and, together with the Incentive
Options, the "Options"); and (iii) rights to purchase shares of Common Stock
("Restricted Stock") of the Company pursuant to restricted stock agreements and
subscription agreements. The Option Plan is administered by the Board of
Directors, or at its discretion, by a committee which is appointed by the Board
to perform such function. Under the terms of the Option Plan, the exercise
price for Incentive Options may not be less than the fair market value of the
underlying stock at the time the Incentive Option is granted.
The purpose of this Registration Statement is to provide for the registration
of shares of the Registrant's Common Stock, par value $.01 per share (the
"Common Stock), issuable upon the exercise of the stock options under the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
*ITEM 1. Plan Information.
*ITEM 2. Registrant Information and Employee Plan Annual Information.
__________________
* 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 of 1933 and the Note to Part I of Form S-8.
1
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Certain Documents by Reference.
The following documents, filed by the Registrant with the Securities
and Exchange Commission (the "Commission"), are incorporated by reference in
this Registration Statement:
(1) The description of the Registrant's Common Stock, par value $.01 per
share, contained in the Registrant's Form SB-2, declared effective by
the Commission on September 24, 1997 and Post-Effective Amendment No.
1 to this Form SB-2 dated July 29, 1998 (Registration No. 333-25937).
(2) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1997, filed with the Commission on March 31, 1998.
(3) The Registrant's Proxy Statement on Schedule 14A as filed with the
Commission on April 10, 1998 (Registration No. 000-22847).
(4) The Registrant's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1998, filed with the Commission on November 10, 1998.
(5) The Registrant's Quarterly Report on Form 10-QSB for the quarter ended
June 30, 1998, filed with the Commission on August 14, 1998.
(6) The Registrant's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 1998, filed with the Commission on May 15, 1998.
In addition, all reports and other documents subsequently filed 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 have been sold or which deregisters all securities then remaining
unsold shall be deemed to be incorporated by reference herein and made a part
hereof from the date of filing of such documents. Any statements contained in
a document incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained herein
(or in any other subsequently filed document which also is incorporated by
reference herein) modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed to constitute a part of this
Registration Statement except as so modified or superseded.
ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
Not applicable.
2
<PAGE> 4
ITEM 6. Indemnification of Directors and Officers.
To the fullest extent permitted by Delaware statutory or decisional
law, as amended or interpreted, no director of this Corporation shall be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director. This does not affect the
availability of equitable remedies for breach of fiduciary duties.
The Corporation shall, to the fullest extent legally permissible,
indemnify (fully or, if not possible, partially) each of its directors and
officers, and persons who serve at its request as directors or officers of
another organization in which it owns shares or of which it is a creditor,
against all liabilities (including expenses) imposed upon or reasonably
incurred by him in connection with any action, suit or other proceeding, civil
or criminal (including investigations, audits, the activities of, or service
upon special committees of the board) in which he may be involved or with which
he may be threatened, while in office or thereafter, by reason of his acts or
omissions as such director or officer, unless in any proceeding he shall be
finally adjudged not to have acted in good faith in the reasonable belief that
his action was in the best interest of the Corporation; provided, however, that
such indemnification shall not cover liabilities in connection with any matter
which shall be disposed of through a compromise payment by such director or
officer, pursuant to a consent decree or otherwise, unless such compromise
shall be approved as in the best interest of the Corporation, after notice that
it involved such indemnification, (a) by a vote of the directors in which no
interested director participates, or (b) by a vote or the written approval of
the holders of a majority of the outstanding stock at the time having the right
to vote for directors, not counting as outstanding any stock owned by any
interested director or officer. 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 not entitled to indemnification under these
provisions. The rights of indemnification hereby provided shall not be
exclusive of or affect other rights to which any director or officer may be
entitled. As used in this paragraph, the terms "director" and "officer"
include their respective heirs, executors and administrators, and an
"interested" director or officer is one against whom as such the proceedings in
question or another proceeding on the same or similar grounds is then pending.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
See Index to Exhibits.
ITEM 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
3
<PAGE> 5
(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 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 this Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in this Registration Statement or any
material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above 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 Exchange Act that are
incorporated by reference in this 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.
(b) The 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 Exchange Act (and each filing of the 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 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 SEC 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
4
<PAGE> 6
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.
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 the requirements for filing on Form S-8 and has duly caused this
Registration Statement on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chantilly, State of
Virginia, on December 15, 1998.
DIDAX INC.
By: /s/ WILLIAM M. PARKER
------------------------------
William M. Parker
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints William M. Parker, or in his absence, Gary A.
Struzik, his true and lawful attorney-in-fact and agent, each with full power
of substitution and resubstitution, for him and in his name, place and stead,
in any and all capacities, to sign any and all amendments, including
post-effective 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 granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and conforming all that
each said attorney-in-fact and agent, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed herein by the following
persons in the capacities and on the dates indicated.
<TABLE>
<S> <C>
December 18, 1998 By:/s/ WILLIAM M. PARKER
------------------------
William M. Parker,
Chief Executive Officer and President
</TABLE>
5
<PAGE> 7
<TABLE>
<S> <C>
December 18, 1998 By:/s/ GARY A. STRUZIK
----------------------
Gary A. Struzik,
Chief Financial Officer and Secretary,
and Principal Financial and Chief
Accounting Officer
December 18, 1998 By:/s/ JAMES G. BUICK
---------------------
James G. Buick,
Chairman of the Board of Directors
December 18, 1998 By:/s/ ROBERT C. VARNEY, PH.D.
------------------------------
Robert C. Varney, Ph.D.,
Vice-Chairman of the Board of Directors
December 18, 1998 By:/s/ DANE B. WEST
-------------------
Dane B. West,
Vice President Business Development and
Sales and director
December 18, 1998 By:/s/ WILLIAM H. BOWERS
------------------------
William H. Bowers,
Chief Technical Officer and director
December 18, 1998 By:/s/ BRUCE E. EDGINGTON
----------------------------------
Bruce E. Edgington, director
December 18, 1998 By:/s/ JOHN J. MEINDL, JR.
--------------------------
John J. Meindl, Jr., director
December 18, 1998 By:/s/ CLAY T. WHITEHEAD
------------------------
Clay T. Whitehead, director
December 18, 1998 By:/s/ EARL E. GJELDE
---------------------
Earl E. Gjelde, director
December 18, 1998 By:/s/ W.R. "MAX" CAREY
-----------------------
W.R. "Max" Carey, director
</TABLE>
6
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- ------------
<S> <C>
4.1* Certificate of Incorporation and Amendments thereto of DIDAX INC.
4.1A* Certificate of Correction regarding Certificate of Incorporation
4.2* Bylaws of the Registrant
4.3* Form of Stock Option Agreement
4.3A* Form of Stock Option Agreement as amended April, 6, 1998
4.4* Form of Certificate representing shares of Common Stock of the Registrant
5 Opinion of Berman Wolfe & Rennert P.A.
23.1 Consent of Berman Wolfe & Rennert P.A. (Included as part of Exhibit 5.1)
23.2 Consent of Hoffman, Morrison & Fitzgerald P.C.
24 Power of Attorney (included on signature page)
99.1* 1997 Stock Option Plan, as amended April 6, 1998
</TABLE>
- -------------
* Incorporated by reference from the Registrant's Registration Statement on
Form SB-2 (SEC File No. 333-25937) declared effective by the Securities and
Exchange Commission on September 24, 1997, and the Registrant's Definitive
Proxy Statement on Schedule 14A (SEC File No. 000-22847) filed with the
Securities and Exchange Commission on April 10, 1998.
7
<PAGE> 1
EXHIBIT 5
December 16, 1998
DIDAX INC.
4206F Technology Court
Chantilly, Virginia 20151-1214
Re: Registration Statement on Form S-8 of DIDAX Inc.
Gentlemen:
You have requested our opinion as counsel for DIDAX Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") filed by the Company with the U.S.
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), with respect to up to 2,057,937 shares of
Common Stock, par value $.01 per share (the "Shares"), of the Company issuable
upon the exercise of options available for grant under the Company's 1997 Stock
Option Plan.
In rendering the opinion expressed herein, we have examined the
following documents and instruments:
1. The Registration Statement;
2. The Company's Certificate of Incorporation, as amended;
3. The Company's Bylaws; and
4. The resolutions adopted by the Board of Directors and
shareholders of the Company dated April 15, 1997, and May 2,
1997, respectively, authorizing the Plan.
In connection with our opinion, we have undertaken no independent
review of the operations of the Company. Instead, we have relied solely on the
documents described above. In examining such documents, we have assumed,
without independent investigation: (i) the authenticity of all documents
submitted to us as originals; (ii) the conformity to original documents of all
documents submitted to us as certified or photostatic copies; (iii) the
authenticity of the originals of such latter documents; (iv) that all factual
information supplied to us is accurate, true and complete; and (v) the
genuineness of all signatures. In addition, as to questions of fact material
to the opinions expressed herein, we have relied on the accuracy of all
representations and warranties as to factual matters contained in any of the
documents submitted to us for purposes of rendering the opinions expressed
herein. We also assumed that the exercise price of each Share will be in
excess of the par value of the Common Stock.
8
<PAGE> 2
In addition, we have obtained from public officials and from officers
of the Company certificates, agreements and assurances and have examined
originals or copies, identified to our satisfaction, of such other
certificates, agreements and other assurances as we considered necessary for
the purposes of rendering the opinions hereinafter expressed.
We have also consulted with officers and directors of the Company and
have obtained such representations with respect to the matters of fact as we
have deemed necessary or advisable for purposes of rendering the opinions
hereinafter expressed. We have not independently verified the factual
statements made to us in connection therewith, nor the veracity of such
representations.
Based on the foregoing, subject to the comments and exceptions
contained herein and limited in all respects to the General Corporation Laws of
the State of Delaware and the federal laws of the United States o f America, we
are of the opinion that:
After the Registration Statement is declared effective by the
Commission and when the applicable provisions of the "Blue Sky" or other state
securities laws shall have been complied with, and when the Shares are
delivered in accordance with the terms of the Plan, assuming no change in
applicable law or facts, the Shares will constitute legally issued securities
of the Company, fully paid and nonassessable.
We are qualified to act as counsel in the State of Florida and, as
such, are not experts in the laws of any other jurisdiction. You should be
aware that we are not admitted to practice law in the State of Delaware.
Accordingly, any opinion herein as to the laws of the State of Delaware is
based solely upon the latest generally available statutes and case law of such
state.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission promulgated thereunder.
The information set forth herein is as of the date of this letter. We
disclaim any undertaking to advise you of changes which may be brought to our
attention after the date hereof.
Respectfully submitted,
BERMAN WOLFE & RENNERT, P.A.
9
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS'
We consent to the incorporation by reference in this registration statement on
Form S-8 (File No. 333- ) of DIDAX INC., of our report dated February 18,
1998, on our audits of the consolidated financial statements of DIDAX INC. and
Subsidiary which report is included in the Annual Report on Form 10-KSB; and
our report dated January 30, 1997, on our audits of the combined financial
statements of DIDAX ON-LINE, L.C. and Affiliate, which report is included in
the registration statement of DIDAX INC. on Form SB-2 (File No. 333-25937); and
our report dated June 19, 1998, on our audits of the consolidated financial
statements of DIDAX INC. and Subsidiary which report is included in the Post
Effective Amendment No.1 of Form SB-2 (File No. 333-25937).
Hoffman, Morrison & Fitzgerald, P.C.
McLean, Virginia
December 16, 1998
10
