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As filed with the Securities and Exchange Commission on October 6, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8 / S-3
REGISTRATION STATEMENT
(Including registration of shares for resale by means of a Form S-3 Prospectus)
Under
The Securities Act of 1933
______________________
NUANCE COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
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Delaware 94-3238130
(State of incorporation) 1005 Hamilton Court (I.R.S. Employer Identification Number)
Menlo Park, CA 94025
(Address of principal executive offices)
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______________________
1998 STOCK PLAN
(Full title of the plans)
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Ronald A. Croen
President and Chief Executive Officer
Nuance Communications, Inc.
1005 Hamilton Court
Menlo Park, CA 94025
(650) 847-0000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copy to:
Steven E. Bochner, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum Maximum
Securities Amount Offering Aggregate Amount of
To be to be Price Per Offering Registration
Registered Registered Share Price Fee
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Common Stock, par value $0.001 per share
Issued under the 1998 Stock Plan......... 168,450 Shares $123.25 (1) $20,761,462.50 $5,481.03
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(1) Computed in accordance with Rule 457(h) under the Securities Act. Such
computation is based on the average of the high and low prices on the Nasdaq
National Market on September 29, 2000.
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Explanatory Note
This Registration Statement on Form S-8/S-3 ("Registration Statement") is
being filed pursuant to General Instruction E to Form S-8 for the purpose of
registering these additional shares of Common Stock, which have been issued
under our 1998 Stock Plan and are of the same class of Common Stock for which a
registration statement on Form S-8 (Registration No. 333-38532) is effective.
The contents of our Registration Statement on Form S-8 (Registration No. 333-
38532) are hereby incorporated by reference.
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RESALE PROSPECTUS
NUANCE COMMUNICATIONS, INC.
UP TO 168,450 SHARES OF COMMON STOCK
WHICH THE SELLING STOCKHOLDERS MAY RESELL UNDER THIS PROSPECTUS
__________________________
The stockholders of Nuance Communications, Inc. listed in this prospectus
may offer and resell up to 168,450 shares of our common stock under this
prospectus for their own accounts. We will not receive any proceeds from the
sale of these shares.
These shares were acquired by the selling stockholders pursuant to the
exercise of options to purchase shares of our common stock pursuant to our 1998
Stock Plan.
The selling stockholders may offer their common stock through public or
private transactions, at prevailing market prices or at privately negotiated
prices. These future prices are not currently known.
Our common stock is quoted on the Nasdaq National Market under the symbol
"NUAN". The last reported sale price of our common stock on the Nasdaq National
Market on October 5, 2000 was $121.00.
__________________________
CONSIDER CAREFULLY THE RISK FACTORS
BEGINNING ON PAGE 3 IN THIS PROSPECTUS.
__________________________
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
__________________________
The date of this prospectus is October 6, 2000.
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TABLE OF CONTENTS
Prospectus
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Page
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Nuance Communications, Inc.............................................. 1
Risk Factors............................................................ 1
Selling Stockholders.................................................... 11
Plan of Distribution.................................................... 13
Where to Find More Information About Nuance............................. 14
Information Incorporated By Reference................................... 14
Indemnification of Directors and Officers............................... 15
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You should rely only on the information contained in this prospectus. We
have not authorized anyone to provide you with information different from that
contained in this prospectus. The selling stockholders are offering to sell, and
seeking offers to buy, shares of Nuance common stock only in jurisdictions where
offers and sales are permitted. The information contained in this prospectus is
accurate as of the date of this prospectus, regardless of the time of delivery
of this prospectus or any sale of the shares.
In this prospectus, unless indicated otherwise, "Nuance," the "Company,"
"we," "us" and "our" refer to Nuance Communications, Inc. and its subsidiaries.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements under the sections entitled "Prospectus Summary,"
"Risk Factors," "Management's Discussion and Analysis of Financial Condition and
Results of Operations," and "Business" in the documents incorporated by
reference herein and located elsewhere in this prospectus constitute forward-
looking statements within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act. These statements relate to future plans,
objectives, events or our future financial performance. In some cases, you can
identify forward-looking statements by terminology such as "may," "will,"
"should," "could," "expect," "anticipate," "intend," "plan," "believe,"
"estimate," "potential," or "continue," the negative of these terms or other
comparable terminology. These forward-looking statements involve a number of
risks and uncertainties and are only predictions. Our actual events or results
may differ materially from any forward-looking statement. In evaluating these
statements, you should specifically consider various factors, including the
risks outlined under "Risk Factors."
Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, levels of
activity, performance or achievements. Moreover, neither we nor any other person
assume responsibility for the accuracy and completeness of the forward-looking
statements. Except as required by law, we undertake no obligation to update
publicly any forward-looking statements for any reason after the date of this
prospectus to conform these statements to actual results or to changes in our
expectations. Before you invest in our common stock, you should be aware that
the occurrence of the events described under "Risk Factors" and elsewhere in
this prospectus could harm our business.
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NUANCE COMMUNICATIONS, INC.
We develop, market and support a voice interface software platform that
makes the information and services of enterprises, telecommunications networks
and the Internet accessible from any telephone. Our software platform consists
of software servers that run on industry-standard hardware and perform speech
recognition, natural language understanding and voice authentication. Speech
recognition recognizes what a person says, natural language understanding
derives the meaning of what is said, and voice authentication verifies the
identity of a speaker based on the unique qualities of his voice. We offer a
software developer's toolkit and software components to enable our customers and
third parties to develop voice user interfaces that use our software platform.
We also offer a range of consulting, support and educational services. We also
currently have in beta form a voice browser, which is a software program that
permits its users to interact with automated information and services using a
graphical interface on a personal computer.
RISK FACTORS
This offering and an investment in our common stock involve a high degree
of risk. You should carefully consider the following risk factors and the other
information in this prospectus before investing in our common stock. Our
business and results of operations could be seriously harmed by any of the
following risks. The trading price of our common stock could decline due to any
of these risks and you may lose part or all of your investment.
We have a history of losses. We expect to continue to incur losses and we may
not achieve or maintain profitability.
We have incurred losses since our inception, including a loss of
approximately $6.9 million in 1998, $18.5 million in 1999 and $12.9 million in
the six months ended June 30, 2000. As of June 30, 2000, we have an accumulated
deficit of approximately $46.7 million. We expect to have net losses and
negative cash flow for at least the next 18 months. We expect to spend
significant amounts to enhance our products and technologies, expand
international sales and operations and fund research and development. As a
result, we will need to generate significant additional revenue to achieve
profitability. Even if we do achieve profitability, we may not be able to
sustain or increase profitability on a quarterly or annual basis. If we do not
achieve and maintain profitability, the market price for our common stock may
decline, perhaps substantially.
Voice interface software may not achieve widespread acceptance by businesses or
telecommunications carriers, which could limit our ability to grow our business.
The market for voice interface software is relatively new and rapidly
evolving. Our ability to increase revenue in the future depends on the
acceptance by both our customers and their end users of voice interface
software. The adoption of voice interface software could be hindered by the
perceived costs of this new technology, as well as the reluctance of enterprises
that have invested substantial resources in existing call centers or touch-tone-
based systems to replace their current systems with this new technology.
Accordingly, in order to achieve commercial acceptance, we will have to educate
prospective customers, including large, established telecommunications
companies, about the uses and benefits of voice interface software in general
and our products in particular. If these efforts fail, or if voice interface
software platforms do not achieve commercial acceptance, our business could be
harmed.
The continued development of the market for our products also will depend
upon the:
. widespread deployment of voice interface applications by third parties,
which is driven by consumer demand for services having a voice user
interface;
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. demand for new uses and applications of voice interface technology,
including adoption of voice user interfaces by companies that operate
web sites;
. adoption of industry standards for voice interface and related
technologies; and
. continuing improvements in hardware technology that may reduce the
costs of voice interface software solutions.
Our ability to accurately forecast our quarterly sales is limited, our costs are
relatively fixed in the short term and we expect our business to be affected by
seasonality. As a result, our quarterly operating results and our stock price
may fluctuate.
Our quarterly operating results have varied significantly in the past and
we expect that they will vary significantly from quarter to quarter in the
future. These quarterly variations may be caused by a number of factors,
including:
. delays in customer orders due to the complex nature of large telephony
systems and the associated implementation projects;
. timing of product deployments and completion of project phases,
particularly for large orders;
. delays in recognition of software license revenue in accordance with
applicable accounting principles;
. our ability to develop, introduce, ship and support new and enhanced
products, such as our voice browser and new versions of our software
platform, that respond to changing technology trends in a timely manner
and our ability to manage product transitions;
. current and future changes to our pricing model;
. the utilization rate of our professional services employees; and
. the amount and timing of increases in expenses associated with our
growth.
Due to these factors, and because the market for our voice interface
software platform is new and rapidly evolving, our ability to accurately
forecast our quarterly sales is limited. In addition, most of our costs are for
employees and facilities, which are relatively fixed in the short term. If we
have a shortfall in revenue in relation to our expenses, we may be unable to
reduce our expenses quickly enough to avoid lower quarterly operating results.
We do not know whether our business will grow rapidly enough to absorb the costs
of these employees and facilities. As a result, our quarterly operating results
could fluctuate and this fluctuation could adversely affect the market price of
our common stock.
In addition, we expect to experience seasonality in the sales of our
products. For example, we anticipate that sales may be lower in the first
quarter of each year due to patterns in the capital budgeting and purchasing
cycles of our current and prospective customers. We also expect that sales may
decline during summer months, particularly in Asian and European markets. These
seasonal variations in our sales may lead to fluctuations in our quarterly
operating results. Because we have limited operating results, it is difficult
for us to evaluate the degree to which this seasonality may affect our business.
Our products can have a long sales and implementation cycle and, as a result,
our quarterly operating results and our stock price may fluctuate.
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The sales cycles for our products are generally three to six months but may
be shorter or longer depending on the size and complexity of the order, the
amount of services to be provided by us and whether the sale is made directly by
us or indirectly through a value added reseller or systems integrator.
Purchase of our products requires a significant expenditure by a customer.
Accordingly, the decision to purchase our products typically requires
significant pre-purchase evaluation. We may spend significant time educating
and providing information to prospective customers regarding the use and
benefits of our products. During this evaluation period, we may expend
substantial sales, marketing and management resources.
In addition, during any quarter we may receive a number of orders that are
large relative to our total revenues for that quarter or subsequent quarters.
For example, we received a large order during the quarter ended June 30, 1998
which caused significant fluctuations in our license revenue during the quarters
ended June 30, 1998 through March 31, 1999 as the revenue associated with this
order was recognized.
After purchase, it may take substantial time and resources to implement our
software and to integrate it with our customers' existing systems. If we are
performing professional services in connection with the implementation that are
essential to the functionality of the software, we recognize license and
services revenue on a percentage of completion method. In cases where the
contract specifies milestones or acceptance criteria, we may not be able to
recognize license or services revenue until these conditions are met. We have
in the past and may in the future experience unexpected delays in recognizing
revenue. Consequently, the length of our sales and implementation cycles and
the varying order amounts for our products make it difficult to predict the
quarter in which revenue recognition may occur and may cause license and
services revenue and operating results to vary significantly from period to
period. These factors could cause our stock price to be volatile or to decline.
Our failure to respond to rapid change in the market for voice interface
software could cause us to lose revenue and harm our business.
The voice interface software industry is relatively new and rapidly
evolving. Our success will depend substantially upon our ability to enhance our
existing products and to develop and introduce, on a timely and cost-effective
basis, new products and features that meet changing end-user requirements and
incorporate technological advancements. If we are unable to develop new
products and enhanced functionalities or technologies to adapt to these changes,
or if we cannot offset a decline in revenue from existing products with sales of
new products, our business would suffer.
Commercial acceptance of our products and technologies will depend, among
other things, on:
. the ability of our products and technologies to meet and adapt to the
needs of our target markets;
. the performance and price of our products and our competitors'
products; and
. our ability to deliver customer service directly and through our
resellers.
Our products are not 100% accurate at recognizing speech or authenticating
speaker identities and we could be subject to claims related to the performance
of our products. Any claims, whether successful or unsuccessful, could result
in significant costs and could damage our reputation.
Speech recognition, natural language understanding and authentication
technologies, including our own, are not 100% accurate. Our customers,
including several financial institutions, use our products to provide important
services to their customers, including transferring funds to accounts and buying
and selling securities. Any misrecognition of voice commands or incorrect
authentication of a user's voice in connection with these financial or other
transactions could result in claims against us or our customers for losses
incurred. Although our
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contracts typically contain provisions designed to limit our exposure to
liability claims, a claim brought against us for misrecognition or incorrect
authentication, even if unsuccessful, could be time-consuming, divert
management's attention, result in costly litigation and harm our reputation.
Moreover, existing or future laws or unfavorable judicial decisions could limit
the enforceability of the limitation of liability, disclaimer of warranty or
other protective provisions contained in our contracts.
Any software defects in our products could harm our business and result in
litigation.
Complex software products such as ours may contain errors, defects and
bugs. With the planned release of any product, we may discover these errors,
defects and bugs and, as a result, our products may take longer than expected to
develop. In addition, we may discover that remedies for errors or bugs may be
technologically unfeasible. Delivery of products with undetected production
defects or reliability, quality, or compatibility problems could damage our
reputation. Errors, defects or bugs could also cause interruptions, delays or a
cessation of sales to our customers. We could be required to expend significant
capital and other resources to remedy these problems. In addition, customers
whose businesses are disrupted by these errors, defects and bugs could bring
claims against us which, even if unsuccessful, would likely be time-consuming
and could result in costly litigation and payment of damages.
Our current and potential competitors, some of whom have greater resources and
experience than we do, may develop products and technologies that may cause
demand for, and the prices of, our products to decline.
A number of companies have developed, or are expected to develop, products
that compete with our products. Competitors in the voice interface software
market include IBM, ITT Industries, Lernout and Hauspie Speech Products, Locus
Dialogue, Lucent Technologies, Philips Electronics, SpeechWorks International
and T-NETIX. We expect additional competition from other companies such as
Microsoft, who has recently made investments in, and acquired, voice interface
technology companies. Furthermore, our competitors may combine with each other,
and other companies may enter our markets by acquiring or entering into
strategic relationships with our competitors. Current and potential competitors
have established, or may establish, cooperative relationships among themselves
or with third parties to increase the abilities of their advanced speech and
language technology products to address the needs of our prospective customers.
Many of our current and potential competitors have longer operating
histories, significantly greater financial, technical, product development and
marketing resources, greater name recognition and larger customer bases than we
do. Our present or future competitors may be able to develop products
comparable or superior to those we offer, adapt more quickly than we do to new
technologies, evolving industry trends and standards or customer requirements,
or devote greater resources to the development, promotion and sale of their
products than we do. Accordingly, we may not be able to compete effectively in
our markets, competition may intensify and future competition may harm our
business.
We depend on resellers for a significant portion of our sales. The loss of a
key reseller would limit our ability to sustain and grow our revenue.
In 1998, 31% of our revenue was achieved by indirect sales through
resellers. The percentage of revenue through indirect sales increased to 56% in
1999 and to 66% for the six months ended June 30, 2000. One reseller in
particular, Periphonics--a Nortel Networks Company, accounted for 19% of our
revenue in 1998, 25% of our revenue in 1999 and 29% of our revenue in the six
months ended June 30, 2000. We intend to continue to rely on resellers for a
substantial portion of our sales in the future. As a result, we are dependent
upon the continued viability and financial stability of our resellers, as well
as upon their continued interest and success in selling our products. The loss
of a key reseller or our failure to develop new and viable reseller
relationships could limit our
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ability to sustain and grow our revenue. Significant expansion of our internal
sales force to replace the loss of a key reseller would require increased
management attention and higher expenditures.
Our contracts with resellers generally do not require a reseller to
purchase our products. We cannot guarantee that any of our resellers will
continue to market our products or devote significant resources to doing so. In
addition, we may, from time to time, terminate some of our relationships with
resellers. Any termination could have a negative impact on our business and
result in threatened or actual litigation. These resellers possess confidential
information concerning our products, product release schedules and sales,
marketing and reseller operations. Although we have nondisclosure agreements
with our resellers, we cannot guarantee that any reseller would not use our
confidential information in competition with us or otherwise.
We have begun the process of amending our value-added reseller agreements
with our resellers to account for our new per-port pricing model. If resellers
do not place orders with us during or after this process, our business could be
harmed. If our resellers do not successfully market and sell our products for
these or any other reasons, our sales could be adversely affected and our
revenue could decline.
We depend on a limited number of customer orders for a substantial portion of
our revenue during any given period. Loss of, or delays in, a key order could
substantially reduce our revenue in any given period and harm our business.
We derive a significant portion of our software license revenue in each
quarter from a limited number of customers. For example, for the year ended
December 31, 1998, five customers accounted for 82% of our revenue. Similarly,
in 1999, five customers accounted for 67% of our revenue, and for the six months
ended June 30, 2000, five customers comprised 57% of our total revenue.
In the same periods, customers exceeding 10% of total revenue were:
. Periphonics -- a Nortel Networks Company, who, acting as a reseller,
accounted for 19% of total revenue for 1998, 25% of total revenue for
1999 and 29% of total revenue for the six months ended June 30, 2000;
. Motorola, a stockholder of Nuance, who accounted for 15% of total
revenue for 1998;
. Fidelity, a stockholder of Nuance, who accounted for 32% of total
revenue for 1998 and 20% of total revenue for 1999; and
. Edify, a subsidiary of S1 Corporation, who, acting as a reseller,
accounted for 12% of total revenue for the six months ended June 30,
2000.
We expect that a limited number of customers and customer orders will
continue to account for a substantial portion of our revenue in a given period.
Generally, customers who make large purchases from us are not expected to make
subsequent, equally large purchases in the short term. As a result, if we do
not acquire a major customer, if a contract is delayed, cancelled or deferred,
or if an anticipated sale is not made, our revenue could be adversely affected.
Sales to customers outside the United States account for a significant portion
of our revenue, which exposes us to risks inherent in international operations.
International sales represented approximately 33% of our revenue in 1997,
18% in 1998, 21% in 1999 and 41% in the six months ended June 30, 2000. We are
subject to a variety of risks associated with conducting business
internationally, any of which could harm our business. These risks include:
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. difficulties and costs of staffing and managing foreign operations;
. the difficulty in establishing and maintaining an effective
international reseller network;
. the burden of complying with a wide variety of foreign laws,
particularly with respect to intellectual property and license
requirements;
. political and economic instability outside the United States;
. import or export licensing and product certification requirements;
. tariffs, duties, price controls or other restrictions on foreign
currencies or trade barriers imposed by foreign countries;
. potential adverse tax consequences, including higher marginal rates;
. unfavorable fluctuations in currency exchange rates; and
. limited ability to enforce agreements, intellectual property rights and
other rights in some foreign countries.
In order to increase our international sales, we must develop localized versions
of our products. If we are unable to do so, we may be unable to grow our
revenue and execute our business strategy.
We intend to expand our international sales, which requires us to invest
significant resources to create and refine different language models for each
particular language or dialect. These language models are required to create
versions of our products that allow end users to speak the local language or
dialect and be understood and authenticated. If we fail to develop localized
versions of our products, our ability to address international market
opportunities and to grow our business will be limited.
If the standards we have selected to support are not adopted as the standards
for voice interface software, businesses might not use our voice interface
software platform for delivery of applications and services.
The market for voice interface software is new and emerging and industry
standards have not been established yet. We may not be competitive unless our
products support changing industry standards. We have chosen to support one
emerging standard, VoiceXML, in some of our products. If our software products
and associated tools do not adequately meet the marketplace's demand for
VoiceXML support, or if a standard emerges in place of or in addition to
VoiceXML, whether through adoption by official standards committees or
widespread usage, costly and time consuming redesign of our products could be
required. If these standards become widespread and our products do not support
them, our customers and potential customers may not purchase our products.
Multiple standards in the marketplace could also make it difficult for us to
ensure that our products will support all applicable standards, which could in
turn result in decreased sales of our products.
We may encounter difficulties in managing our growth, which could prevent us
from executing our business strategy.
Our rapid growth has placed, and continues to place, a significant strain
on our resources. To accommodate this growth, we must continue to upgrade a
variety of operational and financial systems, procedures and controls and hire
additional employees to support increased business and product development
activity. This has resulted in increased responsibilities for our management.
Our systems, procedures and controls may not be
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adequate to support our operations. If we fail to improve our operational,
financial and management information systems, or to hire, train, motivate or
manage our employees, our business could be harmed.
Any inability to adequately protect our proprietary technology could harm our
ability to compete.
Our future success and ability to compete depends in part upon our
proprietary technology and our trademarks, which we attempt to protect with a
combination of patent, copyright, trademark and trade secret laws, as well as
with our confidentiality procedures and contractual provisions. These legal
protections afford only limited protection and may be time-consuming and
expensive to obtain and/or maintain. Further, despite our efforts, we may be
unable to prevent third parties from infringing upon or misappropriating our
intellectual property.
We currently have one issued patent. There is no guarantee that patents
will be issued with respect to our current or future patent applications. Any
patents that are issued to us could be invalidated, circumvented or challenged.
If challenged, our patents might not be upheld or their claims could be
narrowed. Our intellectual property may not be adequate to provide us with
competitive advantage or to prevent competitors from entering the markets for
our products. Additionally, our competitors could independently develop non-
infringing technologies that are competitive with, equivalent to, and/or
superior to our technology. Monitoring infringement and/or misappropriation of
intellectual property can be difficult, and there is no guarantee that we would
detect any infringement or misappropriation of our proprietary rights. Even if
we do detect infringement or misappropriation of our proprietary rights,
litigation to enforce these rights could cause us to divert financial and other
resources away from our business operations. Further, we license our products
internationally, and the laws of some foreign countries do not protect our
proprietary rights to the same extent as do the laws of the United States.
Third parties could obtain licenses from SRI International relating to voice
interface technologies and develop technologies to compete with our products,
which could cause our sales to decline.
Upon our incorporation in 1994, we received a license from SRI
International to a number of patents and other proprietary rights, including
rights in software, relating to voice interface technologies developed by SRI
International. This license was exclusive until December 1999, when we chose to
allow the exclusivity to lapse. As a result, SRI International may license
these patents and proprietary rights to our competitors. If a license from SRI
International were to enable third parties to enter the markets for our products
and services or to compete more effectively, we could lose market share and our
business could suffer.
Our products may infringe the intellectual property rights of others, and
resulting claims against us could be costly and require us to enter into
disadvantageous license or royalty arrangements.
The software industry is characterized by the existence of a large number
of patents and frequent litigation based on allegations of patent infringement
and the violation of intellectual property rights. Although we attempt to avoid
infringing known proprietary rights of third parties we may be subject to legal
proceedings and claims for alleged infringement by us or our licensees of third-
party proprietary rights, such as patents, trade secrets, trademarks or
copyrights, from time to time in the ordinary course of business. Any claims
relating to the infringement of third-party proprietary rights, even if not
successful or meritorious, could result in costly litigation, divert resources
and management's attention or require us to enter into royalty or license
agreements which are not advantageous to us. In addition, parties making these
claims may be able to obtain injunctions, which could prevent us from selling
our products. Furthermore, former employers of our employees may assert that
these employees have improperly disclosed confidential or proprietary
information to us. Any of these results could harm our business. We may be
increasingly subject to infringement claims as the number of, and number of
features of, our products grow.
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If we are unable to hire and retain technical, sales and marketing and
operational employees, our business could be harmed.
We intend to hire a significant number of employees, including software
engineers, sales and marketing employees and operational employees. Competition
for hiring these individuals is intense, especially in the San Francisco Bay
Area where we are headquartered, and we may not be able to attract, assimilate,
or retain additional highly qualified employees in the future. The failure to
attract, integrate, motivate and retain these employees could harm our business.
We rely on the services of our key employees, whose knowledge of our business
and technical expertise would be difficult to replace.
We rely upon the continued service and performance of a relatively small
number of key technical and senior management employees. Our future success
depends on our retention of these key employees, such as Ronald Croen, our Chief
Executive Officer. None of our key technical or senior management employees are
bound by employment agreements, and, as a result, any of these employees could
leave with little or no prior notice. If we lose any of our key technical and
senior management employees, our business could be harmed. We do not have key
person life insurance policies covering any of our employees.
Our stock price is volatile, and you may not be able to resell your shares at or
above the price you pay for the shares.
In recent years, the stock market in general, and the Nasdaq National
Market and the securities of technology companies in particular, has experienced
extreme price and trading volume fluctuations. These fluctuations have often
been unrelated or disproportionate to the operating performance of individual
companies. These broad market fluctuations may materially adversely affect our
stock price, regardless of our operating results.
Some of our existing stockholders can exert control over Nuance and may not make
decisions that are in the best interests of all stockholders.
Our executive officers and directors, their affiliates and other current
principal stockholders together control approximately 42% of our outstanding
common stock. As a result, these stockholders, if they act together, will be
able to exert a significant degree of influence over our management and affairs
and over matters requiring stockholder approval, including the election of
directors and approval of significant corporate transactions. In addition, this
concentration of ownership may delay or prevent a change in control of Nuance,
even when a change in control may be in the best interests of other
stockholders. Moreover, the interests of this concentration of ownership may
not always coincide with our interests or the interests of other stockholders
and, accordingly, these controlling stockholders could cause us to enter into
transactions or agreements which we would not otherwise consider.
Our charter and bylaws and Delaware law contain provisions which may delay or
prevent a change of control of Nuance.
Provisions of our charter and bylaws may make it more difficult for a third
party to acquire, or discourage a third party from attempting to acquire,
control of Nuance. These provisions could limit the price that investors might
be willing to pay in the future for shares of our common stock. These
provisions include:
. the division of the board of directors into three separate classes;
. the elimination of cumulative voting in the election of directors;
-8-
<PAGE>
. prohibitions on our stockholders from acting by written consent and
calling special meetings;
. procedures for advance notification of stockholder nominations and
proposals; and
. the ability of the board of directors to alter our bylaws without
stockholder approval.
In addition, our board of directors has the authority to issue up to
5,000,000 shares of preferred stock and to determine the price, rights,
preferences, privileges and restrictions, including voting rights, of those
shares without any further vote or action by the stockholders. The issuance of
preferred stock, while providing flexibility in connection with possible
financings or acquisitions or other corporate purposes, could have the effect of
making it more difficult for a third party to acquire a majority of our
outstanding voting stock.
We are subject to the anti-takeover provisions of the Delaware General
Corporation Law, including Section 203, which may deter potential acquisition
bids for our company. You should read the "Description of Capital Stock" for a
discussion of how Section 203 operates. Under Delaware law, a corporation may
opt out of Section 203. We do not intend to opt out of the provisions of
Section 203.
We may incur a variety of costs to engage in future acquisitions of companies,
products or technologies, and the anticipated benefits of those acquisitions may
never be realized.
We may make acquisitions of, or significant investments in, complementary
companies, products or technologies, although no material acquisitions or
investments are currently pending. Any future acquisitions would be accompanied
by risks such as:
. difficulties in assimilating the operations and employees of acquired
companies;
. diversion of our management's attention from ongoing business concerns;
. our potential inability to maximize our financial and strategic
position through the successful incorporation of acquired technology
and rights into our products and services;
. additional expense associated with amortization of acquired assets;
. maintenance of uniform standards, controls, procedures and policies;
and
. impairment of existing relationships with employees, suppliers and
customers as a result of the integration of new management employees.
We cannot guarantee that we will be able to successfully integrate any
business, products, technologies or employees that we might acquire in the
future, and our failure to do so could harm our business.
Future sales of our common stock could cause the price of our shares to decline.
Our common stock began trading on the Nasdaq National Market on April 13,
2000. However, to date there have been a limited number of shares trading in the
public market. Some of our current stockholders own restricted securities which
will become available for sale in the future. Approximately 3,889,053 shares
held by these stockholders (including the 168,450 shares offered by this
prospectus) will be available for sale in the public market beginning on October
10, 2000. An additional 48,917 shares will be available for sale beginning
November 5, 2000, 188,889 shares will be available for sale in the public market
beginning on December 14, 2000 and 19,413,438 shares will be available for sale
beginning on December 26, 2000. Sales of a substantial number of shares of our
common stock in this
-9-
<PAGE>
offering and thereafter could cause our stock price to fall. In addition, the
sale of shares by our stockholders could impair our ability to raise capital
through the sale of additional stock. See "Underwriting" and "Shares Eligible
for Future Sale" in our Prospectus dated September 26, 2000.
Our facilities are located near known earthquake fault zones, and the occurrence
of an earthquake or other natural disaster could cause damage to our facilities
and equipment which could require us to curtail or cease operations.
Our facilities are located in the San Francisco Bay Area near known
earthquake fault zones and are vulnerable to damage from earthquakes. In
October 1989, a major earthquake that caused significant property damage and a
number of fatalities struck this area. We are also vulnerable to damage from
other types of disasters, including fire, floods, power loss, communications
failures and similar events. If any disaster were to occur, our ability to
operate our business at our facilities could be seriously, or potentially
completely, impaired. The insurance we maintain may not be adequate to cover
our losses resulting from disasters or other business interruptions.
We do not intend to pay dividends on our common stock.
We currently intend to retain any future earnings for funding growth and,
therefore, do not anticipate paying any dividends in the foreseeable future.
You should read the "Dividend Policy" section for a discussion of our dividend
policy.
-10-
<PAGE>
SELLING STOCKHOLDERS
The selling stockholders acquired ownership of all the shares listed below
through the exercise of stock options granted under our 1994 Flexible Stock
Incentive Plan and our 1998 Stock Plan. In accordance with Item 507 of
Regulation S-K, the following table shows in each case as of September 30, 2000:
. the name of each selling stockholder;
. how many shares the selling stockholder owns prior to the offering;
. how many shares the selling stockholder can resell under this
prospectus; and
. assuming a selling stockholder sells all shares listed next to his or
her name, how many shares the selling stockholder will own after
completion of the offering.
Nuance may amend or supplement this prospectus from time to time in the
future to update or change this list of selling stockholders and shares which
may be resold.
<TABLE>
<CAPTION>
Shares Which
May Be Sold
Shares Under This Shares Owned
Selling Stockholder Owned Prospectus After Offering
------------------------------------------------------------ ------------------ ---------------- ------------------
<S> <C> <C> <C>
Rajeev Agarwal(1) 12,500 12,500 -
Jeff Bergan(1) 15,000 10,000 5,000
Guellermina Castellanos(1) 10,000 10,000 -
Kevin Chatow(1) 12,000 12,000 -
Pu Cheng(1) 3,000 3,000 -
Paul Constantinides(1) 5,500 5,500 -
David Copp(1) 1,750 1,750 -
Patrick Day(1) 1,000 1,000 -
Daniel Enthoven(1) 40,000 5,000 35,000
John Froman(1) 3,500 3,500 -
Jean Giarusso(1) 1,000 1,000 -
Greg Green(1) 1,250 1,250 -
Helen Hsiu(1) 8,000 8,000 -
</TABLE>
-11-
<PAGE>
<TABLE>
<CAPTION>
Shares Which
May Be Sold
Shares Under This Shares Owned
Selling Stockholder Owned (1) Prospectus After Offering
------------------------------------------------------------ ------------------ ---------------- ------------------
<S> <C> <C> <C>
Peter Huynh(1) 5,400 400 5,000
Elena Konstantinova(1) 4,472 4,472 -
Lisa Ma(1) 400 400 -
Laura Marino-Schrier(1) 11,000 11,000 -
Evan Matteo(1) 12,813 2,813 10,000
Ian Menzies(1) 2,000 2,000 -
Mark Mintz(1) 1,875 1,875 -
Christine Nagato(1) 9,000 9,000 -
Olympia D. Nguyen(1) 2,500 2,500 -
Heidi Nielsen(1) 3,000 3,000 -
Kathy Nyrop(2) 1,000 1,000 -
Cathy Pearl(1) 1,500 1,500 -
Rhonda Racine(1) 4,445 4,445 -
Max Ritter(1) 1,100 1,100 -
Michael E. Ross(1) 3,125 3,125 -
Michael Schuster(1) 1,500 1,500 -
Sangeeta Sinha(1) 750 750 -
Donna Allen Taylor(3) 10,000 10,000 -
Madhavan Thirumalaj(1) 13,820 13,820 -
Ann Thyme-Gobbel(1) 1,250 1,250 -
Eric Tober(1) 500 500 -
James White(1) 12,500 12,500 -
Innessa Zatulovsky(1) 2,500 2,500 -
Torsten Zeppenfeld(1) 17,500 2,500 15,000
</TABLE>
________________________
(1) As of the date of this prospectus, the selling stockholder is employed by
the Company.
(2) The Selling Stockholder was a consultant to the Company.
(3) As of the date of this prospectus, Donna Allen Taylor serves as our Vice
President, Human Resources and Chief People Officer.
-12-
<PAGE>
PLAN OF DISTRIBUTION
We have been advised by the selling stockholders that they intend to sell
all or a portion of the shares offered hereby from time to time in the Nasdaq
National Market and that sales will be made at prices prevailing in the Nasdaq
National Market at the times of such sales. The selling stockholders may also
make private sales directly or through a broker or brokers, who may act as agent
or as principal. Further, the selling stockholders may choose to dispose of the
shares offered hereby by gift to a third party or as a donation to a charitable
or other non-profit entity. In connection with any sales, the selling
stockholders and any brokers participating in such sales may be deemed to be
underwriters within the meaning of the Securities Act of 1933, as amended (the
"Securities Act").
Any broker-dealer participating in such transactions as agent may receive
commissions from the selling stockholders (and, if such broker acts as agent for
the purchaser of such shares, from such purchaser). Usual and customary
brokerage fees will be paid by the selling stockholders. Broker-dealers may
agree with the selling stockholders to sell a specified number of shares at a
stipulated price per share, and, to the extent such a broker-dealer is unable to
do so acting as agent for the selling stockholders, to purchase as principal any
unsold shares at the price required to fulfill the broker-dealer commitment to
the selling stockholders. Broker-dealers who acquire shares as principal may
thereafter resell such shares from time to time in transactions (which may
involve crosses and block transactions and which may involve sales to and
through other broker-dealers, including transactions of the nature described
above) in the over-the-counter market, in negotiated transactions or otherwise
at market prices prevailing at the time of sale or at negotiated prices, and in
connection with such resales may pay to or receive from the purchasers of such
shares commissions computed as described above.
We have advised the selling stockholders that Regulation M promulgated
under the Exchange Act may apply to sales in the market and has informed them of
the possible need for delivery of copies of this prospectus. The selling
stockholders may indemnify any broker-dealer that participates in transactions
involving the sale of the shares against certain liabilities, including
liabilities arising under the Securities Act. Any commissions paid or any
discounts or concessions allowed to any such broker-dealers, and, if any such
broker-dealers purchase shares as principal, any profits received on the resale
of such shares, may be deemed to be underwriting discounts and commissions under
the Securities Act.
Upon our being notified by the selling stockholders that any material
arrangement has been entered into with a broker-dealer for the sale of shares
through a cross or block trade, a supplemental prospectus will be filed under
Rule 424(c) under the Securities Act, setting forth the name of the
participating broker-dealer(s), the number of shares involved, the price at
which such shares were sold by the selling stockholders, the commissions paid or
discounts or concessions allowed by the selling stockholders to such broker-
dealer(s), and where applicable, that such broker-dealer(s) did not conduct any
investigation to verify the information set out in this prospectus.
Any securities covered by this prospectus which qualify for sale pursuant
to Rules 144 and 701 under the Securities Act may be sold under Rule 144 rather
than pursuant to this prospectus. In general, under Rule 144 as currently in
effect, a person (or persons whose shares are aggregated), including any person
who may be deemed to be our "affiliate, is entitled to sell within any three
month period "restricted shares" beneficially owned by him or her in an amount
that does not exceed the greater of (i) 1% of the then outstanding shares of
common stock or (ii) the average weekly trading volume in shares of common stock
during the four calendar weeks preceding such sale, provided that at least one
year has elapsed since such shares were acquired from us or our affiliate.
Sales are also subject to certain requirements as to the manner of sale, notice
and availability of current public information regarding us. However, a person
who has not been our "affiliate" at any time within three months prior to the
sale is entitled to sell his or her shares without regard to the volume
limitations or other requirements of Rule 144, provided that at least one year
has elapsed since such shares were acquired from us or our affiliate. In
general, under Rule 701 as currently in effect, any employee, consultant or
advisor of us who purchases shares from us in
-13-
<PAGE>
connection with a compensatory stock or option plan or other written agreement
related to compensation is eligible to resell such shares in reliance on Rule
144, but without compliance with certain restrictions contained in Rule 144.
There can be no assurance that the selling stockholders will sell any or
all of the shares of common stock offered hereunder.
WHERE TO FIND MORE INFORMATION ABOUT NUANCE
We file special reports, proxy statements and other information with the
Securities and Exchange Commission (the "SEC"). You may read and copy any
document we file at the SEC's public reference rooms in Washington, D.C., New
York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference rooms. Our SEC filings are also
available to the public from the SEC's Web site at http://www.sec.gov.
This prospectus contains information concerning the Company and the sale of
its Common Stock by the Selling Stockholders, but does not contain all the
information set forth in the Registration Statement on Form S-8/S-3 (the
"Registration Statement") which the Company has filed with the SEC under the
Securities Act of 1933, as amended (the "Securities Act"). Statements made in
this Prospectus as to the contents of any referenced contract, agreement or
other document are not necessarily complete, and such statement shall be deemed
qualified in its entirety by reference thereto. The Registration Statement,
including various exhibits, may be obtained upon payment of the fee prescribed
by the SEC, or may be examined without charge at the SEC's office in Washington,
D.C.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents that we have previously filed with the SEC or
documents that we will file with the SEC in the future. The information
incorporated by reference is considered to be part of this prospectus, and later
information that we file with the SEC will automatically update and supercede
this information. We incorporate by reference the documents listed below, and
any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act, until the selling stockholders sell all the shares. This
prospectus is part of a Registration Statement we filed with the SEC. The
documents we incorporate by reference are:.
(1) Nuance's Registration Statement on Form S-1 (File No. 333-45128) as
declared effective on September 26, 2000;
(2) Nuance's Registration Statement on Form S-8 (File No. 333-38532) filed
June 2, 2000; and
(3) The description of the Nuance's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed on April 3, 2000.
-14-
<PAGE>
We also incorporate by reference all documents subsequently filed by the
Company 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 registered have been sold or which deregisters all securities then
remaining unsold.
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 the Registration Statement or this Prospectus to the extent that
a statement contained herein, in a Prospectus Supplement or in any other
document subsequently filed with the Commission 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 the Registration Statement or
this Prospectus.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address: Nuance Communications, Inc., 1005
Hamilton Court, Menlo Park, California; the telephone number is (650) 847-0000.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Nuance's Restated Certificate of Incorporation provides for the
indemnification of directors to the fullest extent permissible under Delaware
Law.
Nuance's Bylaws provides for the indemnification of officers, directors and
third parties to the fullest extent permissible under Delaware Law, which
provisions are deemed to be a contract between Nuance and each director and
officer who serves in such capacity while such bylaw is in effect.
Nuance has entered into indemnification agreements with its directors and
executive officers, in addition to the indemnification provided for in the
Registrant's Bylaws, and intends to enter into indemnification agreements with
any new directors and executive officers in the future.
Insofar as indemnification by Nuance for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of Nuance pursuant to the provisions referenced in Prospectus or otherwise,
Nuance has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act, and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by Nuance of expenses incurred
or paid by a director, officer, or controlling person of Nuance 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 hereunder, Nuance 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 and will be governed by
the final adjudication of such issue.
-15-
<PAGE>
NUANCE COMMUNICATIONS
REGISTRATION STATEMENT ON FORM S-8
PART II
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference into this Registration Statement
the following documents and information heretofore filed by Nuance
Communications (the "Registrant") with the Securities and Exchange Commission
(the "Commission"):
(1) Nuance's Registration Statement on Form S-1 (File No. 333-45128) as
declared effective on September 26, 2000;
(2) Nuance's Registration Statement on Form S-8 (File No. 333-38532) filed
June 2, 2000; and
(3) The description of the Nuance's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed on April 3, 2000.
All 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 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 part hereof
from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
As permitted by Section 145 of the Delaware General Corporation Law, the
Registrant's Certificate of Incorporation includes a provision that eliminates
the personal liability of its directors for monetary damages for breach of their
fiduciary duty as a director. In addition, as permitted by Section 145 of the
Delaware General Corporation Law, the Bylaws of the Registrant provide that:
(1) the Registrant is required to indemnify its directors and executive officers
and persons serving in these capacities in other business enterprises
(including, for example, subsidiaries of the Registrant) at the Registrant's
request, to the fullest extent permitted by Delaware law, including
II-1
<PAGE>
in those circumstances in which indemnification would otherwise be
discretionary; (2) the Registrant may, in its discretion, indemnify employees
and agents in those circumstances where indemnification is not required by law;
(3) the rights conferred in the Bylaws are not exclusive, and the Registrant is
authorized to enter into indemnification agreements with its directors,
executive officers and employees; and (4) the Registrant may not retroactively
amend the Bylaw provisions in a way that is adverse to the directors, executive
officers and employees who benefit from these protections.
The Registrant's policy is to enter into indemnification agreements with
each of its directors and executive officers that provide the maximum indemnity
allowed to directors and executive officers by Section 145 of the Delaware
General Corporation Law and the Bylaws, as well as certain additional procedural
protections. In addition, these indemnity agreements provide that parties to
the indemnification agreements will be indemnified to the fullest possible
extent not prohibited by law against any and all expenses (including any
federal, state, local or foreign taxes imposed on the indemnitee as a result of
the actual or deemed receipt of any payments under the indemnification
agreement), judgments, fines, penalties and amounts paid in settlement (if such
settlement is approved in advance by the Registrant, which approval shall not be
unreasonably withheld), actually and reasonably incurred in relation to the
indemnitee's position as a director, officer, employee, agent or fiduciary of
the Registrant, or any subsidiary of the Registrant, or in relation to the
indemnitee's service at the request of the Registrant as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint venture,
trust or other enterprise or in relation to indemnitee's action or inaction
while serving in such a capacity. The Registrant will not be obligated pursuant
to the indemnity agreements or advance expenses to an indemnified party with
respect to proceedings or claims initiated by the indemnified party and not by
way of defense, counterclaim or crossclaim, except with respect to proceedings
specifically authorized by its Board of Directors or brought to enforce a right
to indemnification under the indemnity agreement, its Bylaws or any statute or
law. Under the agreements, the Registrant is not obligated to indemnify the
indemnified party (1) for any expenses incurred by the indemnified party with
respect to any proceeding instituted by the indemnified party to enforce or
interpret the agreement, if a court of competent jurisdiction determines that
each of the material assertions made by the indemnified party in such proceeding
was not made in good faith or was frivolous; (2) for any amounts paid in
settlement of a proceeding unless the Registrant consents to such settlement;
(3) with respect to any proceeding brought by the Registrant against the
indemnified party for willful misconduct, unless a court determines that each of
such claims was not made in good faith or was frivolous; (4) on account of any
suit in which judgment is rendered against the indemnified party for an
accounting of profits made from the purchase or sale by the indemnified party of
securities of the Registrant pursuant to the provisions of (S) 16(b) of the
Securities Exchange Act of 1934 and related laws; (5) on account of the
indemnified party's conduct which is finally adjudged to have been knowingly
fraudulent or deliberately dishonest, or to constitute willful misconduct or a
knowing violation of the law; (6) an account of any conduct from which the
indemnified party derived an improper personal benefit; (7) on account of
conduct the indemnified party believed to be contrary to the best interests of
the Registrant or its stockholders; (8) on account of conduct that constituted a
breach of the indemnified party's duty of loyalty to the Registrant or its
stockholders; or (9) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful.
The indemnification provision in the Certificate of Incorporations, Bylaws
and the indemnification agreements entered into between the Registrant and its
directors and executive officers, may be sufficiently broad to permit
indemnification of the Registrant's officers and directors for liabilities
arising under the 1933 Act.
The Registrant has obtained directors and officers insurance providing
indemnification for certain of its directors, officers, affiliates, partners or
employees for certain liabilities.
II-2
<PAGE>
Item 7. Exemption from Registration Claimed.
The issuance of the shares being offered by the Form S-3 resale prospectus
were deemed to be exempt from registration under the Securities Act in reliance
on Section 4(2) of the Securities Act or Regulation D promulgated thereunder, or
Rule 701 promulgated under Section 3(b) of the Securities Act, as transactions
by an issuer not involving a public offering or transactions pursuant to
compensatory benefit plans and contracts relating to compensation as provided
under such Rule 701. The recipients of securities in each such transaction
represented their intention to acquire the securities for investment only and
not with a view to or for sale in connection with any distribution thereof and
appropriate legends were affixed to the share certificates and instruments
issued in such transactions. All recipients had adequate access, through their
relationship with the Registrant, to information about the Registrant.
Item 8. Exhibits.
Exhibit
Number Description
----------- --------------------------------------------------------
3.3* Restated Certificate of Incorporation of Registrant.
3.5* Bylaws of Registrant.
10.2* 1998 Stock Plan.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
24.1 Power of Attorney (see page II-5).
___________
* Incorporated by reference to the Registrant's Registration Statement
on Form S-1 (File No. 333-96217), filed with the Securities and
Exchange Commission on February 4, 2000.
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(i) To file, during any period which offers or sales are being made,
a post-effective amendment to this registration statement 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.
(ii) That, for the purpose of determining any liability under the
Securities Act, each 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.
(iii) 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.
II-3
<PAGE>
(b) The 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to law, the Registrant's Restated
Certificate of Incorporation, Bylaws or indemnification agreements, 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 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 a successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, 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 such issue.
II-4
<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/S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Menlo Park, State of California, on this day of
October 6, 2000.
NUANCE COMMUNICATIONS, INC.
By: /s/ Graham Smith
-------------------------------
Graham Smith
Vice President,
Chief Financial Officer and
Assistant Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ronald A. Croen and Graham Smith, and
each of them, as his attorney-in-fact, with full power of substitution in each,
for him in any and all capacities to sign any amendments to this registration
statement on Form S-8/S-A, and to file the same, with 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
substitutes, may do or cause to be done by virtue hereof.
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/ Ronald Croen President and Chief Executive Officer October 6, 2000
-------------------------------- (Principal Executive Officer)
Ronald Croen
/s/ Graham Smith Vice President, Finance, Chief Financial October 6, 2000
-------------------------------- Officer and Assistant Secretary (Principal
Graham Smith Financial Officer and Accounting Officer)
/s/ Yogen Dalal Director and Chairman of the Board October 6, 2000
--------------------------------
Dr. Yogen Dalal
/s/ Curtis Carlson Director October 6, 2000
--------------------------------
Dr. Curtis Carlson
/s/ Alan Herzig Director October 6, 2000
--------------------------------
Alan Herzig
/s/ Gary Morgenthaler Director October 6, 2000
--------------------------------
Gary Morgenthaler
/s/ Philip Quigley Director October 6, 2000
--------------------------------
Philip Quigley
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
------ ----------------------------------------------------------
3.3* Restated Certificate of Incorporation of Registrant.
3.5* Bylaws of Registrant.
10.3* 1998 Stock Plan.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
24.1 Power of Attorney (see page II-4).
__________
* Incorporated by reference to the Registrant's Registration Statement on Form
S-1 (File No. 333-96217), filed with the Securities and Exchange Commission
on February 4, 2000.
