- -13-
As filed with the Securities and Exchange Commission on July 18, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DIEHL GRAPHSOFT, INC.
(Exact Name of Registrant as Specified in Its Charter)
Maryland 52-1407016
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization Identification No.)
10270 Old Columbia Road
Suite 100
Columbia, Maryland 21046
(Address of Principal Executive Offices) (Zip Code)
Diehl Graphsoft, Inc. Amended and Restated Stock Option Plan
(Full title of the plan)
Joseph Schmelzle
Diehl Graphsoft, Inc.
10270 Old Columbia Road
Suite 100
Columbia, Maryland 21046
(Name and address of agent for service)
(410) 290-5114
(Telephone number, including area code, of agent for service)
Copy to:
Ariel Vannier, Esq.
Venable, Baetjer & Howard, LLP
1800 Mercantile Bank & Trust Building, 2 Hopkins Plaza
Baltimore, Maryland 21201
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
<S> <C> <C> <C> <C>
Title of Amount Proposed maximum Proposed maximum Amount of
Securities to be offering price aggregate
Registration Fee
registered registered per share* offering price*
Common Stock, 300,000 $3.875 $1,162,500 $352.27
$.01 par
value
per share
* Calculated solely for the purpose of computing the registration fee
pursuant to Rules 457(c) and (h), based upon the average of the bid and
asked price as of July 14, 1997.
</TABLE>
<PAGE>
PART II
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by Diehl Graphsoft,
Inc. (the "Registrant") with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference:
(a) The Registrant's latest annual report on Form 10-KSB for the
fiscal year ended May 31, 1996 filed on September 13, 1996,
which contains audited financial statements for the
Registrant's latest fiscal year;
(b) The Registrant's quarterly reports on Form 10-QSB for the
fiscal quarters ended August 31, 1996, November 30, 1996 and
February 28, 1997, filed on October 14, 1996, January 14,
1997 and April 14, 1997, respectively;
(c) Description of common stock, of the Registrant contained or
incorporated in the Registration Statement on Form 8-A (File
No. 0-24318) filed by the Registrant under Section 12(g) of
the Securities Exchange Act of 1934, as amended, including
any amendments or reports filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, 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 into this Registration Statement and
to be a part of the Registration Statement 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.
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 2-418 of the Corporations and Associations Article of the
Annotated Code of Maryland permits a corporation to indemnify its present
and former directors, among others, against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by them in connection
with any proceeding to which they may be made a party by reason of their
services in those or other capacities, unless it is established that (a)
the act or omission of the director or officer was material to the matter
giving rise to such proceeding and (i) was committed in bad faith or
(ii) was the result of active and deliberate dishonesty; or (b) the
director or officer actually received an improper personal benefit in
money, property, or services; or (c) in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that
the act or omission was unlawful. Maryland law permits a corporation to
indemnify a present and former officer to the same extent as a director,
and to provide additional indemnification to an officer who is not also a
director. In addition, Section 2-418(f) of the Corporations and
Associations Article of the Annotated code of Maryland permits a
corporation to pay or reimburse, in advance of the final disposition of a
proceeding, reasonable expenses (including attorney's fees) incurred by a
present or former director or officer made a party to the proceeding by
reason of his service in that capacity, provided that the corporation shall
have received (a) a written affirmation by the director or officer of his
good faith belief that he has met the standard of conduct necessary for
indemnification by the corporation; and (b) a written undertaking by or on
his behalf to repay the amount paid or reimbursed by the corporation if it
shall ultimately be determined that the standard of conduct was not met.
The Registrant has provided for indemnification of directors,
officers, employees, and agents in Article VIII of its charter, as amended.
This provision reads as follows:
Section 1. Mandatory Indemnification.
The Corporation shall indemnify its currently acting and its
former directors and officers against any and all liabilities and
expenses incurred in connection with their services in such capacities
to the maximum extent permitted by the Maryland General Corporation
<PAGE>
Law, as from time to time amended.
Section 2. Discretionary Indemnification.
If approved by the Board of Directors, the Corporation may
indemnify its employees, agents and persons who serve and have served,
at its request as a director, officer, partner, trustee, employee or
agent of another corporation, partnership, joint venture or other
enterprise or employee benefit plan to the extent determined to be
appropriate by the Board of Directors.
Section 3. Advancing Expenses Prior to a Decision.
The Corporation shall advance expenses to its directors and
officers entitled to mandatory indemnification to the maximum extent
permitted by the Maryland General Corporation Law, as from time to
time amended, and may in the discretion of the Board of Directors
advance expenses to employees, agents and others who may be granted
indemnification.
Section 4. Other Provisions for Indemnification.
The Board of Directors may, by bylaw, resolution or agreement,
make further provision for indemnification of directors, officers,
employees and agents.
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 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 assured 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 of whether such indemnification by it
<PAGE>
is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
Under Maryland law, a corporation is permitted to limit by
provision in its charter the liability of directors and officers, so that
no director or officer of the corporation shall be liable to the
corporation or to any stockholder for money damages except to the extent
that (i) the director or officer actually received an improper benefit in
money property, or services, for the amount of the benefit or profit in
money, property or services actually received, or (ii) a judgment or other
final adjudication adverse to the director or officer is entered in a
proceeding based on a finding in the proceeding that the director's or
officer's action, or failure to act, was the result of active and
deliberate dishonesty and was material to the cause of action adjudicated
in the proceeding.
The Registrant has limited the liability of its directors and
officers for money damages in Article VIII of its charter, as amended.
This provision reads as follows:
Section 5. Limitation of Liability of Directors and Officers.
To the fullest extent that limitations on the liability of
directors and officers are permitted by the Maryland General Corporation
Law, no director or officer of the Company shall have any liability to the
Company or its stockholders for damages. This limitation on liability
applies to events occurring at the time a person serves as a director or
officer of the Company, whether or not such person is serving as such at
the time of any proceeding in which liability is asserted.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Articles of Incorporation dated March 11, 1996 (filed as
Exhibit D to the Registrant's Definitive Proxy Materials on
Schedule 14A on May 15, 1996 and incorporated by reference
herein).
<PAGE>
4.2 Amended and Restated Bylaws, as amended through March 11,
1996 (filed as Exhibit E to the Registrant's Definitive
Proxy Materials on Schedule 14A on May 15, 1996 and
incorporated by reference herein).
5* Opinion of Venable, Baetjer and Howard, LLP.
23.1* Consent of Ernst & Young LLP, Independent Auditors.
23.2* Consent of Venable, Baetjer and Howard, LLP (included in
their opinion filed as Exhibit 5).
24* Powers of Attorney (included in signature page).
___________
* filed herewith
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
which, individually or together, represent a fundamental change in the
information in the Registration Statement;
(iii) To include any additional or changed material
information on the plan of distribution;
provided, however, that paragraphs (1)(i) and (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 by the Registrant
pursuant to Sections 13 or 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
<PAGE>
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Sections 13(a) or 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 Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Diehl Graphsoft, Inc., 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 City of Columbia, in the
State of Maryland, on this 18th day of July, 1997.
DIEHL GRAPHSOFT, INC.
By: /s/ Richard Diehl
Richard Diehl
President, Chief Executive
Officer, and Chairman of
the Board
(Principal Executive Officer)
<PAGE>
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints Richard Diehl or Joseph Schmelzle, or any one of
them acting singly, his or her true and lawful agents and attorneys-in-fact
with full power and authority in said agents and attorneys-in-fact, or any
of them, to sign for the undersigned and in his or her name, in the
capacity indicated opposite his or her name, this Registration Statement of
Diehl Graphsoft, Inc. on Form S-8 (and any pre-effective or post-effective
amendment or supplement to such Registration Statement) to be filed under
the Securities Act of 1933, with the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<PAGE>
Signature Title Date
/s/ Richard Diehl President, CEO and Director 07/18/97
(Principal Executive Officer)
Richard Diehl
/s/ Joseph Schmelzle Chief Financial and Accounting 07/18/97
Officer and Director
Joseph Schmelzle (Principal Financial Officer
and Principal Accounting
Officer)
/s/ Richard Hug Director 07/18/97
Richard Hug
/s/ Frederick Unger Director 07/18/97
Frederick Unger
<PAGE>
Exhibit Index
Exhibit Number Description
4.1 Articles of Incorporation dated March 11, 1996 (filed as
Exhibit D to the Registrant's Definitive Proxy Materials on
Schedule 14A on May 15, 1996 and incorporated by reference
herein).
4.2 Amended and Restated Bylaws, as amended through March 11,
1996 (filed as Exhibit E to the Registrant's Definitive
Proxy Materials on Schedule 14A on May 15, 1996 and
incorporated by reference herein).
5 Opinion of Venable, Baetjer and Howard, LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Venable, Baetjer and Howard, LLP (included in
their opinion filed as Exhibit 5).
24 Powers of Attorney (included in signature page).
<PAGE>
EXHIBIT 5
Venable, Baetjer & Howard, LLP
1800 Mercantile Bank & Trust Building, 2 Hopkins Plaza
Baltimore, Maryland 21201
July 18, 1997
Diehl Graphsoft, Inc.
10270 Old Columbia Road
Suite 100
Columbia, Maryland 21046
Gentlemen:
We have acted as counsel for Diehl Graphsoft, Inc. (the
"Corporation") in connection with a registration statement
on Form S-8 of the Corporation filed with the Securities and
Exchange Commission (the "Registration Statement"),
pertaining to the registration of 300,000 shares of common
stock of the Corporation (the "Shares") for issuance and
sale pursuant to the Corporation's Amended and Restated
Stock Option Plan (the "Plan").
In connection with this opinion, we have considered
such questions of law as we have deemed necessary as a basis
for the opinions set forth below, and we have examined or
otherwise are familiar with originals or copies, certified
or otherwise identified to our satisfaction, of the
following: (i) the Registration Statement; (ii) the Charter
and By-laws of the Corporation, as amended and as currently
in effect; (iii) certain resolutions of the Board of
Directors of the Corporation relating to the adoption,
amendment and restatement of the Plan and the issuance of
the Shares and the other transactions contemplated by the
Registration Statement; (iv) the Plan; and (v) such other
documents as we have deemed necessary or appropriate as a
basis for the opinion set forth below. In our examination,
we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents
<PAGE>
submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. As to any
facts material to this opinion that we did not independently
establish or verify, we have relied upon statements and
representations of officers and other representatives of the
Corporation and others.
Based upon the foregoing, we are of the opinion that
the Shares have been duly authorized for issuance and that
when sold, issued, paid for and delivered as contemplated by
the Plan referred to in the Registration Statement, the
Shares will be validly issued and will be fully paid and
nonassessable.
The law covered by the opinion is limited to the law of
the State of Maryland, without regard to the principles of
conflicts of laws thereof, and based upon and limited to the
laws and regulations in effect as of the date hereof. We
assume no obligation to update the opinion set forth herein.
We hereby consent to the filing of this opinion with
the Commission as Exhibit 5 to the Registration Statement.
In giving this consent, we do not thereby admit that we are
within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended,
or the Rules and Regulations of the Commission thereunder.
Very truly yours,
/s/ VENABLE, BAETJER & HOWARD, LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in
the Registration Statement (Form S-8 No. 333-_____)
pertaining to the Diehl Graphsoft, Inc. Amended and Restated
Stock Option Plan of our report dated July 19, 1996, with
respect to the financial statements of Diehl Graphsoft, Inc.
included in its Annual Report (Form 10-KSB) for the year
ended May 31, 1996, filed with the Securities and Exchange
Commission.
/s/ERNST & YOUNG LLP
Vienna, Virginia
July 16, 1997
DC1DOCS1.55029
