<PAGE> 1
As filed with the Securities and Exchange Commission on April 23, 1999
NO. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
E.DIGITAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE NONE
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
13114 EVENING CREEK DRIVE SOUTH
SAN DIEGO, CALIFORNIA 92128
(Address of Principal Executive Office)(Zip Code)
CONSULTANTS' STOCK BONUS
(Full title of the plan)
ALFRED H. FALK
13114 EVENING CREEK DRIVE SOUTH
SAN DIEGO, CALIFORNIA 92128
(Name and address of agent for service)
(619) 679-1504
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
TITLE OF SECURITIES TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED AMOUNT TO BE REGISTERED OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SHARE (1) PRICE (1) FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par
value 250,000 $0.485 $121,250 $33.71
- ------------------------------------------------------------------------------------------------------------------------------------
Total Fee $33.71
====================================================================================================================================
</TABLE>
(1) These figures are estimates made solely for the purpose of calculating
the registration fee pursuant to Rule 457(c). The average of the bid
and asked prices for the Common Stock on April 20, 1999, as reported by
the NASD's OTC Electronic Bulletin Board, was $0.485.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I (plan
information and registrant information) will be sent or given to employees as
specified by Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this form, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents of e.Digital Corporation, a Delaware
corporation (the "Company") previously filed with the Commission are
incorporated herein by reference:
1. Annual Report on Form 10-KSB for the Company's fiscal year
ended March 31, 1998;
2. Quarterly Reports on Form 10-QSB/A for the fiscal quarter
ended June 30, 1998;
3. Quarterly Reports on Form 10-QSB for the fiscal quarter
ended September 30, 1998;
4. Quarterly Reports on Form 10-QSB for the fiscal quarter
ended December 31, 1998; and
5. The description of the Company's Common Stock contained in
the Registration Statement on Form 10 filed with the Securities and Exchange
Commission on December 13, 1992 pursuant to Section 12(g) of the Securities
Exchange Act of 1934 (the "Exchange Act"), together with all amendments or
reports filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in the Registration Statement and to be a part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
The authorized capital stock of the Company consists of
200,000,000 shares of Common Stock, $.001 per share par value and 5,000,000
shares of Preferred Stock, $.001 per share par value. As of March 12, 1999,
there were 94,284,428 shares of Common Stock and 32,500 shares of Preferred
Stock issued and outstanding.
Common Stock
Holders of shares of Common Stock are entitled to one vote per
share on matters to be voted upon by the stockholders of the Company. Holders of
shares of Common Stock do not have cumulative voting rights; therefore, the
holder of more than 50% of the Common Stock will have the
<PAGE> 4
ability to elect all of the Company's directors. Holders of shares of Common
Stock will be entitled to receive dividends when, as and if declared by the
Board of Directors and to share ratably in the assets of the Company legally
available for distribution to its stockholders in the event of the liquidation,
dissolution or winding up of the Company, in each case subject to the rights of
the holders of any shares of Preferred Stock issued by the Company. Holders of
Common Stock have no preemptive, subscription, redemption or conversion rights.
Delaware Anti-Takeover Law
The Company will be governed by the provisions of Section 203
of the General Corporation Law of the State of Delaware, an anti-takeover law.
In general, the law prohibits a public Delaware corporation from engaging in a
"business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in the prescribed
manner. "Business combination" includes merger, asset sales and other
transactions resulting in a financial benefit to the interested stockholder. An
"interested stockholder" is a person who, together with affiliates and
associates, owns (or within three years, did own) 15% or more of the
corporation's voting stock.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the securities registered hereunder (the
"Plan") has been passed upon by Higham, McConnell & Dunning LLP. Higham,
McConnell & Dunning LLP owns warrants to acquire 150,000 shares of Common Stock,
and may receive from time-to-time a portion of the shares of Common Stock
registered hereunder.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article TENTH of the Certificate of Incorporation of the
Company provides:
"TENTH: The corporation shall, to the fullest extent
legally permissible under the provisions of the Delaware
General Corporation Law, as the same may be amended and
supplemented, indemnify and hold harmless any and all persons
whom it shall have power to indemnify under said provisions
from and against any and all liabilities (including expenses)
imposed upon or reasonably incurred by him in connection with
any action, suit or other proceeding in which he may be
involved or with which he may be threatened, or other matters
referred to in or covered by said provisions both as to action
in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person
who has ceased to be a director or officer of the corporation.
Such indemnification provided shall not be deemed exclusive of
any other rights to which those indemnified may be entitled
under any Bylaw, Agreement or Resolution adopted by the
shareholders entitled to vote thereon after notice."
<PAGE> 5
The Company's Bylaws provide that an officer, director,
employee or agent of the Company is entitled to be indemnified for the expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him by reason of any action, suit or proceeding brought against him by virtue
of his acting as such officer, director, employee or agent, provided he acted in
good faith or in a manner he reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The Company has directors and officers liability insurance.
The insurance policy covers liability for claims made against directors and
officers for their wrongful acts involving errors, misstatements, misleading
statements or acts or omissions or neglect or breach of duty, while acting in
their individual or collective capacities for any matter claimed against them
solely by reason of their being directors or officers of the Company. The
coverage includes damages, judgment, settlements and costs of legal actions,
claims or proceedings and appeals therefrom but does not include fines or
penalties imposed by law for matters which may be deemed uninsurable under the
law.
If Delaware law and California law are in conflict with regard
to the Company's power or obligation to indemnify, and the issue were to be
contested in Delaware and/or California, the legal outcome is unpredictable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index appearing at sequentially numbered page 7.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in 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.
(2) That, for the purpose of determining any liability under the Securities Act,
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.
<PAGE> 6
(b) The undersigned 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 the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
4.1 Form of Fee Agreement with James Barnes.
4.2 Form of Fee Agreement with Thorpe, North & Western LLP.
4.3 Form of Fee Agreement with Higham, McConnell & Dunning LLP.
4.4 Form of Fee Agreement with Gary Correia.
5.1 Opinion of Higham, McConnell & Dunning LLP.
23.1 Consent of Higham, McConnell & Dunning LLP (included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Chartered Accountants.
</TABLE>
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, State of California on April 23,
1999.
E.DIGITAL CORPORATION
By: /s/ Alfred H. Falk
-----------------------------------
Alfred H. Falk, President
and Chief Executive Officer
---------------------------
POWER OF ATTORNEY
Each person whose signature to this Registration Statement
appears below hereby appoints Alfred H. Falk and Robert Putnam, and each of
them, as his attorney-in-fact to sign on his behalf individually and in the
capacity stated below and to file all amendments and post-effective amendments
to this Registration Statement as such attorney-in-fact may deem necessary or
appropriate.
---------------------------
<PAGE> 9
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>
NAME POSITION DATE
- ---- -------- ----
<S> <C> <C>
/s/ Alfred H. Falk President and Chief Executive April 23, 1999
- -----------------------------
Alfred H. Falk Officer and Director
/s/ Renee Warden Controller (principal financial April 23, 1999
- -----------------------------
Renee Warden and accounting officer)
/s/Elwood G. Norris Chairman of the Board and April 23, 1999
- -----------------------------
Elwood G. Norris Director
/s/ Robert Putnam Vice President, Secretary and April 23, 1999
- -----------------------------
Robert Putnam Director
</TABLE>
<PAGE> 1
EXHIBIT 4.1
AGREEMENT
This Agreement is made and entered into as of this 1st day of March,
1999, by and between James Barnes, with his office located at 9029 Opus Drive,
Las Vegas, Nevada 89117 ("CONSULTANT"), and e.Digital Corporation with offices
located at 13114 Evening Creek Drive South, San Diego, California 92128
("CLIENT").
This Agreement shall expire on December 31, 1999 unless extended by
written agreement of the parties.
NOW, THEREFORE, in consideration of the covenants and mutual promises
made herein, and for other valuable consideration, CONSULTANT and CLIENT agree
as follows:
1. WORK TO BE DONE BY CONSULTANT; CONSULTANT shall perform and
CLIENT shall pay for the following work:
Various financial and accounting services.
This agreement shall be part of any purchase order or other
request for services as may be issued by CLIENT.
2. PAYMENT: CLIENT shall pay to CONSULTANT the following amounts
on the following dates or at the following intervals (e.g.
weekly):
Payment to be negotiated on a project by project basis with
payment terms of 30 days upon presentation of invoice by
consultant. Payments may be made by delivery of Common Stock,
valued as of the date of issuance.
3. SCHEDULES OF COMPLETION: The work shall be performed and
completed according to the following schedule:
Tasks and dates to be negotiated on a project by project
basis.
4. EXPENSES: CLIENT shall reimburse CONSULTANT for all reasonable
expenses incurred while performing the work upon the
submission of a properly submitted invoice.
<PAGE> 2
5. RELATIONSHIP OF PARTIES: CONSULTANT shall provide services
herein as an independent contractor and shall be in sole
control of the manner in which the work is performed. CLIENT
shall provide CONSULTANT with a work area and any information,
documentation and cooperation necessary to accomplish the
aforementioned Tasks.
6. FORCE MAJEURE: The parties shall be excused from performing
under this Agreement if prevented from doing so by acts of God
or other unforeseen events beyond the control of the parties.
7. WAIVER: Any delay or failure by either party to exercise a
right or remedy hereunder shall not be a waiver thereof. All
rights and remedies are cumulative and may be exercised
separately.
8. ENTIRE AGREEMENT: The terms and conditions herein make up the
entire agreement between the parties and supersede any and all
previous agreements, written or oral, relating to the subject
herein and no agreement to change the terms and conditions
contained herein shall be binding unless in writing, signed by
a duly authorized representative of each party. In the event
that any one or more of the provisions of this Agreement is
held by a court of competent jurisdiction to be invalid, void
or unenforceable for any reason, the remainder of the
provisions shall remain in force. This provision shall survive
the termination of this Agreement.
9. LAW: This Agreement is made under and shall be construed
according to the laws of the State of California. This
provision shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties, or their duly authorized representatives, have
signed and executed this Agreement on the date first written above.
"CLIENT" "CONSULTANT"
E.DIGITAL CORPORATION /s/James Barnes
------------------------------
/s/Alfred H. Falk, President and CEO
<PAGE> 1
EXHIBIT 4.2
AGREEMENT
This Agreement is made and entered into as of this 1st day of March,
1999, by and between Thorpe, North & Western LLP, with its office located at
9035 South 700 East, Suite 200, Sandy, Utah 84070 ("CONSULTANT"), and e.Digital
Corporation with offices located at 13114 Evening Creek Drive South, San Diego,
California 92128 ("CLIENT").
This Agreement shall expire on December 31, 1999 unless extended by
written agreement of the parties.
NOW, THEREFORE, in consideration of the covenants and mutual promises
made herein, and for other valuable consideration, CONSULTANT and CLIENT agree
as follows:
1. WORK TO BE DONE BY CONSULTANT; CONSULTANT shall perform and
CLIENT shall pay for the following work:
Various legal services.
This agreement shall be part of any purchase order or other
request for services as may be issued by CLIENT.
2. PAYMENT: CLIENT shall pay to CONSULTANT the following amounts
on the following dates or at the following intervals (e.g.
weekly):
Payment to be negotiated on a project by project basis with
payment terms of 30 days upon presentation of invoice by
consultant. Payments may be made by delivery of Common Stock,
valued as of the date of issuance.
3. SCHEDULES OF COMPLETION: The work shall be performed and
completed according to the following schedule:
Tasks and dates to be negotiated on a project by project
basis.
4. EXPENSES: CLIENT shall reimburse CONSULTANT for all reasonable
expenses incurred while performing the work upon the
submission of a properly submitted invoice.
5. RELATIONSHIP OF PARTIES: CONSULTANT shall provide services
herein as an independent contractor and shall be in sole
control of the manner in which the work is performed. CLIENT
shall provide CONSULTANT with a work area and any information,
documentation and cooperation necessary to accomplish the
aforementioned Tasks.
6. FORCE MAJEURE: The parties shall be excused from performing
under this Agreement if prevented from doing so by acts of God
or other unforeseen events beyond the control of the parties.
7. WAIVER: Any delay or failure by either party to exercise a
right or remedy hereunder shall not be a waiver thereof. All
rights and remedies are cumulative and may be exercised
separately.
<PAGE> 2
8. ENTIRE AGREEMENT: The terms and conditions herein make up the
entire agreement between the parties and supersede any and all
previous agreements, written or oral, relating to the subject
herein and no agreement to change the terms and conditions
contained herein shall be binding unless in writing, signed by
a duly authorized representative of each party. In the event
that any one or more of the provisions of this Agreement is
held by a court of competent jurisdiction to be invalid, void
or unenforceable for any reason, the remainder of the
provisions shall remain in force. This provision shall survive
the termination of this Agreement.
9. LAW: This Agreement is made under and shall be construed
according to the laws of the State of California. This
provision shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties, or their duly authorized representatives, have
signed and executed this Agreement on the date first written above.
"CLIENT" "CONSULTANT"
E.DIGITAL CORPORATION THORPE, NORTH & WESTERN LLP
/s/Alfred H. Falk, President and CEO /s/Von North, Partner
- ------------------------------------ ---------------------------
<PAGE> 1
EXHIBIT 4.3
HIGHAM, MCCONNELL & DUNNING LLP
28202 Cabot Road, Suite 450
Laguna Niguel, California 92677
Tel: 949/365-5515
Fax: 949/365-5522
March 23, 1999
Alfred H. Falk
President
e.Digital Corporation
13114 Evening Creek Road South
San Diego, California 92128
Re: Amendment No. 4 to Engagement Letter/Service Agreement
Dear Fred:
The Engagement Letter/Service Agreement entered into between the parties on
September 25, 1996 is hereby amended, as follows:
1. Higham, McConnell & Dunning LLP hereby agrees to accept in payment of
our fees additional shares of common stock in amounts to be periodically agreed
upon by the parties from time-to-time.
Except as provided herein, all terms and provisions of our September 25,
1996 letter are in full force and effect, and have not been changed, amended or
modified.
Very truly yours,
HIGHAM, McCONNELL & DUNNING LLP
/s/ Curt C. Barwick
- -------------------------------
Curt C. Barwick
CCB:
<PAGE> 2
Enclosure
The undersigned hereby agrees to the foregoing.
Dated: March 25, 1999
E.DIGITAL CORPORATION
By: /s/Alfred H. Falk
-------------------------------
Title: President and CEO
-------------------------------
<PAGE> 1
EXHIBIT 4.4
AGREEMENT
This Agreement is made and entered into as of this 1st day of March, 1999,
by and between Gary Corriea, with his office located at 3435 Wisteria Drive, San
Diego, California 92106 ("CONSULTANT"), and e.Digital Corporation with offices
located at 13114 Evening Creek Drive South, San Diego, California 92128
("CLIENT").
This Agreement shall expire on December 31, 1999 unless extended by written
agreement of the parties.
NOW, THEREFORE, in consideration of the covenants and mutual promises made
herein, and for other valuable consideration, CONSULTANT and CLIENT agree as
follows:
1. WORK TO BE DONE BY CONSULTANT; CONSULTANT shall perform and CLIENT
shall pay for the following work:
Various accounting services.
This agreement shall be part of any purchase order or other request for
services as may be issued by CLIENT.
2. PAYMENT: CLIENT shall pay to CONSULTANT the following amounts on the
following dates or at the following intervals (e.g. weekly):
Payment to be negotiated on a project by project basis with payment
terms of 30 days upon presentation of invoice by consultant. Payments
may be made by delivery of Common Stock, valued as of the date of
issuance.
3. SCHEDULES OF COMPLETION: The work shall be performed and completed
according to the following schedule:
Tasks and dates to be negotiated on a project by project basis.
4. EXPENSES: CLIENT shall reimburse CONSULTANT for all reasonable expenses
incurred
<PAGE> 2
while performing the work upon the submission of a properly submitted
invoice.
5. RELATIONSHIP OF PARTIES: CONSULTANT shall provide services herein as an
independent contractor and shall be in sole control of the manner in
which the work is performed. CLIENT shall provide CONSULTANT with a
work area and any information, documentation and cooperation necessary
to accomplish the aforementioned Tasks.
6. FORCE MAJEURE: The parties shall be excused from performing under this
Agreement if prevented from doing so by acts of God or other unforeseen
events beyond the control of the parties.
7. WAIVER: Any delay or failure by either party to exercise a right or
remedy hereunder shall not be a waiver thereof. All rights and remedies
are cumulative and may be exercised separately.
8. ENTIRE AGREEMENT: The terms and conditions herein make up the entire
agreement between the parties and supersede any and all previous
agreements, written or oral, relating to the subject herein and no
agreement to change the terms and conditions contained herein shall be
binding unless in writing, signed by a duly authorized representative
of each party. In the event that any one or more of the provisions of
this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable for any reason, the remainder of the
provisions shall remain in force. This provision shall survive the
termination of this Agreement.
9. LAW: This Agreement is made under and shall be construed according to
the laws of the State of California. This provision shall survive the
termination of this Agreement.
IN WITNESS WHEREOF, the parties, or their duly authorized representatives, have
signed and executed this Agreement on the date first written above.
"CLIENT" "CONSULTANT"
E.DIGITAL CORPORATION /s/Gary Correia
-----------------------------------
/s/Alfred H. Falk, President and CEO
- ------------------------------------ -----------------------------------
<PAGE> 1
EXHIBIT 5.1
April 23, 1999
e.Digital Corporation
13114 Evening Creek Drive South
San Diego, California 92128
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for e.Digital Corporation (the "Company") in
connection with the preparation and filing of the Company's Registration
Statement on Form S-8 under the Securities Act of 1933, as amended (the
"Registration Statement"), relating to 250,000 shares of the Company's Common
Stock, $.001 par value (the "Common Stock"), issuable under the terms of various
Company consulting agreements (collectively, the "Plan").
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of the consulting agreements and of such other documents,
corporate records, certificates of public officials and other instruments
relating to the adoption and implementation of the Plan as we deemed necessary
or advisable for purposes of this opinion.
Based on the foregoing examination and subject to compliance with
applicable state securities and "blue sky" laws, we are of the opinion that the
shares of Common Stock issuable pursuant to the Plan are duly authorized and,
when issued in accordance with the Plan, will be legally issued, fully paid and
nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to all references therein to our firm.
Very truly yours,
HIGHAM, McCONNELL & DUNNING LLP
CCB:SEM
<PAGE> 1
EXHIBIT 23.2
CONSENT OF
INDEPENDENT CHARTERED ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Consultants' Stock Bonus of e.Digital Corporation
(formerly Norris Communications, Inc.) of our report dated June 2, 1998 (except
as to Note 18[b] which is as of June 12, 1998), with respect to the consolidated
financial statements of e.Digital Corporation (formerly Norris Communications,
Inc.) included in its Annual Report (Form 10-KSB) for the year ended March 31,
1998 filed with the Securities and Exchange Commission.
Vancouver, Canada, /s/ Ernst & Young LLP
April 22, 1999 Chartered Accountants
