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As filed with the Securities and Exchange Commission on April 23, 1999
No. 333-
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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)
1994 STOCK OPTION PLAN
(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)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED SHARE PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $.001 par
value 3,726,000(1) $0.485(1) $1,807,110(1) $502.38
Common Stock, $.001 par
value 4,325,000(2) $0.0875(2) $ 378,438(2) $105.21
Common Stock, $.001 par
value 1,925,000(3) $0.10(3) $ 192,500(3) $ 53.52
Common Stock, $.001 par
value 24,000(4) $3.375(4) $ 81,000(4) $ 22.52
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Total Fee $683.63
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</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.
(2) Issuable upon exercise of options to purchase shares. Such options
were granted at an exercise price of $0.0875.
(3) Issuable upon exercise of options to purchase shares. Such options
were granted at an exercise price of $0.10.
(4) Issuable upon exercise of options to purchase shares. Such options
were granted at an exercise price of $3.375.
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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.
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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 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
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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.
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."
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.
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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.
(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
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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.
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EXHIBIT INDEX
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Exhibit
Number Description
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4.1 1994 Stock Option Plan*
4.1.1 First Amendment to 1994 Stock Option Plan.**
4.1.2 Second Amendment to 1994 Stock Option Plan.***
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>
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* Filed as Exhibit 10.10 to the Company's 1995 Form 10-KSB and incorporated
herein by reference.
** Filed as Exhibit 10.14.1 to the Company's 1998 Form 10-KSB and incorporated
herein by reference.
*** Filed as Exhibit 10.14.2 to the Company's 1998 Form 10-KSB and incorporated
herein by reference.
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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
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Alfred H. Falk, President and Chief
Executive Officer
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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.
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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.
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<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>
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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 10,000,000 shares of the Company's Common
Stock, $.001 par value (the "Common Stock"), issuable under the Company's 1994
Stock Option Plan.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of the Plan 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
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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 1994 Stock Option Plan 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
