As filed with the Securities and Exchange Commission on September 13, 1996
Registration No.333-11369
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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DIALOGIC CORPORATION
(Exact name of registrant as specified in its charter)
New Jersey 22-2476441
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1515 Route 10
Parsippany, New Jersey 07054
(201) 993-3000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal
executive offices)
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EDWARD B. JORDAN
Dialogic Corporation
1515 Route 10
Parsippany, New Jersey 07054
(201) 993-3000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
Peter H. Ehrenberg, Esq.
Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C.
65 Livingston Avenue
Roseland, New Jersey 07068
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Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement
as determined by the Selling Shareholders. See "Selling Shareholders".
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) .under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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CALCULATION OF REGISTRATION FEE
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Proposed
Proposed maximum
Title of each class maximum aggregate Amount of
of securities to be Amount to be offering price offering registration
registered registered per unit (1) price (1) fee
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Common Stock,
no par value 85,298 Shares $33.75 $2,878,808.00 $993.00(2)
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(1) Pursuant to Rule 457(c), the proposed maximum offering price per unit
is estimated solely for the purpose of calculating the registration fee
and is based on the average of the high and low prices of the Company's
Common Stock on the NASDAQ National Market System on September 3, 1996.
(2) Previously paid.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
DIALOGIC CORPORATION
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85,298 Shares
Common Stock
No Par Value
INTRODUCTION
This Prospectus relates to up to 85,298 shares of the Common Stock, no par
value (the "Common Stock"), of Dialogic Corporation (the "Company"), which will
be offered by certain shareholders of the Company. See "Selling Shareholders".
The Company will not receive any of the proceeds from the sale of shares by the
selling shareholders.
The shares of Common Stock offered hereby were issued by the Company to the
shareholders of Dianatel Corporation., a California corporation ("Dianatel"), in
exchange for their shares of Dianatel's Common Stock in connection with the
merger of Dianatel with and into a wholly-owned subsidiary of the Company on
June 27, 1996. The shareholders of the Company who formerly were shareholders of
Dianatel, as well as certain of their transferees, are hereinafter collectively
referred to as the "Selling Shareholders". See "Selling Shareholders".
The Common Stock is traded in the over-the-counter market and quoted on the
National Market System of the National Association of Securities Dealers
Automated Quotation System ("NASDAQ"). The shares of Common Stock offered hereby
are offered without underwriters at the market - that is, at the price in effect
at the time of sale by the Selling Shareholders. On September 12, 1996, the
closing sales price of the Common Stock on NASDAQ was $35.00 per share. The
Company will bear all expenses in connection with the registration of the Common
Stock being registered hereby, which expenses are estimated to be approximately
$7,200. The Selling Shareholders will pay all brokerage commissions incurred in
connection with the sale of shares of Common Stock at the market.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is September 13, 1996.
<PAGE>
No person has been authorized to give any information or to make any
representations other than as contained in this Prospectus in connection with
the offer made hereby, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company. The delivery of this Prospectus at any time does not imply that the
information herein is correct as of any time subsequent to the date hereof. This
Prospectus does not constitute an offer to sell securities in any jurisdiction
to any person to whom it is unlawful to make such offer in such jurisdiction.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports, proxy statements and other
information filed by the Company can be inspected and copied at the offices of
the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and the Commission's Regional Offices in New York (Seven
World Trade Center, 13th Floor, New York, New York 10048) and Chicago (Suite
1400, 500 West Madison Street, Chicago, Illinois 60661), and copies of such
materials can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are incorporated herein by reference the following documents of
the Company heretofore filed by it with the Commission:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(b) the Company's Quarterly Reports on Form 10-Q for the periods ended
March 31, 1996 and June 30, 1996;
(c) the Company's Current Reports on Form 8-K dated July 10, 1996 and
September 9, 1996; and
(d) the description of the Company's Common Stock contained in the
Company's report on Form 8-A declared effective by the Commission on April 11,
1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of this offering shall be deemed to be incorporated by reference
into this Prospectus. 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 this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the documents that have been
incorporated by reference in this Prospectus (not including exhibits to such
documents unless such exhibits are specifically incorporated by reference
therein). Requests should be directed to Dialogic Corporation, 1515 Route 10,
Parsippany, New Jersey 07054, Attention: Edward B. Jordan, Vice President,
telephone number (201) 993-3000.
THE COMPANY
The Company designs, manufactures and markets hardware and software signal
computing components for computer telephony systems. The Company's products are
offered as modular building blocks that enable its customers--primarily VARs,
OEMs, systems integrators, service providers and applications developers--to
design computer telephony systems that meet the applications demands of their
end-user customers. Dialogic has promoted the acceptance of open,
non-proprietary computer telephony systems, enabling its customers to respond to
end-user demand for standards-based systems and expanding the types of systems
into which the Company's products may be incorporated.
The Company's signal computing products are computer expansion boards
which typically fit in a PC chassis and operate under the control of an industry
standard PC operating system. With its emphasis on developing modular building
blocks for computer telephony systems, the Company offers products that operate
over a continuum in performance and density. Its traditional products enable
developers to create computer telephony systems with voice processing,
facsimile, data, speech recognition, and speech synthesis capabilities. Its high
density products, first introduced during 1994, provide advanced switching and
other computer-telephony features that enable the Company's customers to extend
their product offerings into call center and enhanced services environments.
The Company is incorporated in New Jersey and maintains its principal
executive offices at 1515 Route 10, Parsippany, New Jersey 07054; telephone
number (201) 993-3000.
SELLING SHAREHOLDERS
Dianatel Selling Shareholders
Effective as of June 27, 1996, San Jose DLGC Acquisition Corporation, a
wholly-owned subsidiary of the Company (the "Subsidiary") and Dianatel entered
into an Agreement and Plan of Merger (the "Dianatel Agreement"). Pursuant to the
terms of the Dianatel Agreement, Dianatel was merged with and into the
Subsidiary and the Subsidiary, as the surviving corporation, remained a
wholly-owned subsidiary of the Company. Each Dianatel shareholder was given the
opportunity to elect to receive cash or shares of the Company's Common Stock in
the Merger. Under the Dianatel Agreement, a total of 45,153 shares of the
Company's Common Stock were issued as "Initial Consideration" (as defined in the
Dianatel Agreement), a total of 10,271 shares of Common Stock have been
deposited in an escrow account and may ultimately be distributed to the former
shareholders of Dianatel as "Escrow Consideration" (as defined in the Dianatel
Agreement) and a total of 29,874 shares of the Company's Common Stock may be
issued in the future as "Option Cancellation Consideration" (as defined in the
Dianatel Agreement) in certain circumstances. This Prospectus covers all of the
shares of the Company's Common Stock which may be issued to the former
shareholders of Dianatel as Initial Consideration, Escrow Consideration or
Option Cancellation Consideration and which may be resold by such shareholders,
as well as transferees of such shareholders, pursuant to this offering. The
Dianatel merger became effective on June 27, 1996 (the "Effective Date of the
Merger").
The following table sets forth information as to the maximum number of
shares of the Company's Common Stock which may be acquired (as Initial
Consideration, Escrow Consideration or Option Cancellation Consideration),
directly or indirectly, by the Selling Shareholders or their transferees
pursuant to the Dianatel Agreement, each of which shares, if issued to the
former shareholders of Dianatel, may be resold pursuant to this offering. The
shares listed in the table represent all of the shares of Dialogic Common Stock
known by the Company to be beneficially owned by such shareholders or their
predecessor as of June 27, 1996. As of June 30, 1996, there were 15,676,884
shares of the Company's Common Stock outstanding.
Number of
Shares of Dialogic
Dianatel Selling Shareholders Common Stock
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Robert T.Flaherty......................................... 23,917
Patrick McGuire........................................... 16,726
Gary A. Maier ............................................ 18,744
Michael J. Maier.......................................... 18,744
Dalton Martin............................................. 1,967
R. Thomas Fair............................................ 5,200
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1Includes 29,874 shares of Option Cancellation Consideration which will only be
issuable to the Selling Shareholders and saleable by the Selling Shareholders if
certain stock options are cancelled.
General
None of the Selling Shareholders has ever held any position or office
or had any material relationship with the Company or any of its subsidiaries
(other than with Dianatel prior to its acquisition by the Company), except that
Robert Flaherty has served as the President and a director of the subsidiary
into which Dianatel was merged since June 3, 1996.
MANNER OF SALE
The Common Stock is traded in the over-the-counter market and
is quoted on the NASDAQ National Market System. It is anticipated that the
Selling Shareholders will sell the shares of the Company's Common Stock at the
market; that is, at the price in effect at the time of sale to investors. Sales
are expected to be effected by registered broker/dealers.
EXPERTS
The consolidated financial statements and the related
financial statement schedule incorporated in this Prospectus by reference from
the Company's Annual Report on Form 10-K have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their reports, which are incorporated
herein by reference, and have been so incorporated in reliance upon the reports
of such firm given upon their authority as experts in accounting and auditing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission registration fee.................$ 993
Legal fees and expense.............................................. 3,000
Accounting fees and expense......................................... 3,000
Miscellaneous expenses............................................... 207
Total................................................. $7,200
No portion of the foregoing expenses will be borne by the Selling
Shareholders.
All expenses other than the Securities and Exchange Commission
registration fee are estimated.
Item 15. Indemnification of Directors and Officers
Subsection (2) of Section 3-5, Title 14A of the New Jersey
Business Corporation Act empowers a corporation to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative (other than an action by or in the right of the
corporation), by reason of the fact that he is or was a corporate agent (i.e., a
director, officer, employee or agent of the corporation or a person serving at
the request of the corporation as a director, officer, trustee, employee or
agent of another corporation or enterprise), against reasonable costs (including
attorneys' fees), judgments, fines, penalties and amounts paid in settlement
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal
proceedings, had no reasonable cause to believe his conduct was unlawful.
Subsection (3) of Section 3-5 empowers a corporation to indemnify a
corporate agent against reasonable costs (including attorneys' fees) incurred by
him in connection with any proceeding by or in the right of the corporation to
procure a judgment in its favor which involves such corporate agent by reason of
the fact that he is or was a corporate agent if he acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect to any claim,
issue or matter as to which such person shall have been judged to be liable for
negligence or misconduct unless and only to the extent that the Superior Court
of New Jersey or the court in which such action or suit was brought shall
determine that despite the adjudication of liability, such person is fairly and
reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Subsection (4) of Section 3-5 provides that to the extent that a
corporate agent has been successful in the defense of any action, suit or
proceeding referred to in subsections (2) and (3) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) incurred by him in connection therewith.
Subsection 8 of Section 3-5 provides that the indemnification
provisions in the law shall not exclude any other rights to indemnification that
a director or officer may be entitled to under a provision of the certificate of
incorporation, a by-law, an agreement, a vote of shareholders, or otherwise.
That subsection explicitly permits indemnification for liabilities and expenses
incurred in proceedings brought by or in the right of the corporation
(derivative proceedings). The only limit on indemnification of directors and
officers imposed by that subsection is that a corporation may not indemnify a
director or officer if a judgment has established that the director's or
officer's acts or omissions were a breach of his or her duty of loyalty, not in
good faith, involved a knowing violation of the law, or resulted in receipt of
an improper personal benefit.
Subsection (9) of Section 3-5 provides that a corporation is empowered
to purchase and maintain insurance on behalf of a director or officer against
any expenses or liabilities incurred in any proceeding by reason of that person
being or having been a director or officer, whether or not the corporation would
have the power to indemnify that person against expenses and liabilities under
other provisions of the law.
The Registrant's Restated Certificate of Incorporation contains the
following provisions regarding indemnification:
"Every person who is or was a director, officer or corporate
agent of the Corporation shall be indemnified by the Corporation to the
fullest extent allowed by law, including the indemnification permitted
by N.J.S. 14A:3-5(8), against all liabilities and expenses imposed upon
or incurred by that person in connection with any proceeding in which
that person may be made, or threatened to be made, a party, or in which
that person may become involved by reason of that person being or
having been a director, officer or corporate agent of or serving or
having served in any capacity with any other enterprise at the request
of the Corporation, whether or not that person is a director, officer
or corporate agent or continues to serve the other enterprise at the
time the liabilities or expenses are imposed or incurred."
The Registrant's Restated Certificate of Incorporation contains the
following provisions regarding certain limitations on the liability of directors
and officers:
"A director or an officer of the Corporation shall not be
personally liable to the Corporation or its shareholders for the breach
of any duty owned to the Corporation or its shareholders except to the
extent that an exemption from personal liability is not permitted by
the New Jersey Business Corporation Act."
See also the undertakings set forth in response to Item 17 herein.
Item 16. Exhibits
2.1 Agreement and Plan of Merger, dated as of June 27, 1996, among
Dialogic Corporation, San Jose DLGC Acquisition Corporation and
Dianatel Corporation (without appendices, which will be furnished
to the Commission upon request).
4.1 Restated Certificate of Incorporation of Dialogic Corporation is
incorporated by reference to Exhibit 3.1 of Amendment No. 2
of the Registrant's Registration Statement on Form S-1
(No. 33-59598) filed in connection with the Registrant's initial
public offering.
4.2 By-laws of Dialogic Corporation are incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form
S-1 (No. 33-59598) filed in connection with the Registrant's
initial public offering.
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan, a
Professional Corporation. (previously filed)
23.1 Independent Auditors' Consent (Deloitte & Touche, LLP)
23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan, A
Professional Corporation, is included in Exhibit 5.1.
24.1 Power of Attorney. (previously filed)
<PAGE>
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
A. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Act"), unless the foregoing
information is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") that are incorporated by reference in this
Registration Statement; and
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement, unless the foregoing information is
contained in periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in the
Registration Statement.
B. That, for the purpose of determining any liability under the 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;
C. 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.
D. That for purposes of determining any liability under the 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 this Registration Statement shall be deemed to
be a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
E. That insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15 above, 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 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 certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to its Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Township of Parsippany, State of
New Jersey, on the 13th day of September, 1996.
DIALOGIC CORPORATION
By: /s/ Edward B. Jordan
Edward B. Jordan,
Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registrant's Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
Signatures Title Date
Nicholas Zwick* Chairman of the Board September 13, 1996
- -----------------------------
Nicholas Zwick
Howard G. Bubb* Director, President and September 13, 1996
- ----------------------------- Chief Executive Officer
Howard G. Bubb
Kenneth J. Burkhardt, Jr.* Director September 13, 1996
- -----------------------------
Kenneth J. Burkhardt, Jr.
Masao Konomi* Director September 13, 1996
- -----------------------------
Masao Konomi
John N. Lemasters* Director September 13, 1996
- -----------------------------
John N. Lemasters
Francis G. Rodgers* Director September 13, 1996
- -----------------------------
Francis G. Rodgers
James J. Shinn* Director September 13, 1996
- -----------------------------
James J. Shinn
/s/ Edward B. Jordan Chief Financial and September 13, 1996
- ----------------------------- Accounting Officer
Edward B. Jordan
*By: /s/ Edward B. Jordan
Edward B. Jordan
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
2.1 Agreement and Plan of Merger, dated as of June 27, 1996,
among Dialogic Corporation, San Jose DLGC Acquisition
Corporation and Dianatel Corporation
4.1 Registrant's Restated Certificate of Incorporation
(incorporated by reference)
4.2 Registrant's By-Laws (incorporated by reference)
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C.
(previously filed)
23.1 Independent Auditors' Consent (Deloitte & Touche LLP)
23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan,
P.C. is included in Exhibit 5.1
24.1 Power of Attorney (previously filed)
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement of Dialogic Corporation of our reports dated February 15,
1996, appearing in and incorporated by reference in the Annual Report on Form
10-K of Dialogic Corporation for the year ended December 31, 1995 and to the
reference to us under the heading "Experts" in the Prospectus, which is a part
of the Registration Statement.
DELOITTE & TOUCHE LLP
New York, New York
September 13, 1996
