As filed with the Securities and Exchange Commission on July 16, 1996
Registration 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
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
(Address of Principal Executive Offices) (Zip Code)
DIANATEL CORPORATION STOCK OPTIONS
(Full title of the plans)
Edward B. Jordan
Dialogic Corporation
1515 Route 10
Parsippany, New Jersey 07054
(Name, address and telephone number, including area code,
of agent for service)
with a copy to:
Peter H. Ehrenberg, Esq.
Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C.
65 Livingston Avenue
Roseland, New Jersey 07068
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities offering aggregate Amount of
to be Amount to be price per offering registration
registered registered unit (1) price fee
Common Stock,
no par value 29,874 shares(2) $24.50 $731,913.00 $253.00
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(1) Pursuant to Rule 457, the proposed maximum offering price per share is
estimated solely for the purpose of computing the amount of the
registration fee and is based on the average of the high and low sales
price of the Common Stock of the registrant reported on the National Market
System of the National Association of Securities Dealers Automated
Quotation System on July 15, 1996.
(2) Plus such indeterminate number of additional shares as shall become
issuable pursuant to the anti-dilution provisions of the above-mentioned
options.
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<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, filed by Dialogic Corporation (the "Company")
with the Securities and Exchange Commission (the "SEC"), are hereby incorporated
by reference:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996;
(c) the Company's Current Report on Form 8-K dated July 10, 1996; and
(d) the description of the Common Stock of the Company contained in the
Company's Form 8-A declared effective by the SEC on April 11, 1994.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement and to
be a part hereof from the date of filing of such documents. Any statement
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that such statement is modified or
superseded by a subsequently filed document which also is or is deemed to be
incorporated by reference herein. Any such statement so modified or superseded
shall not be deemed to constitute a part of this registration statement except
as so modified or superseded.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. 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
proceeding, 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 of any claim,
issue or matter as to which such person shall have been adjudged 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 or of 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 owed 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."
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Registrant's Restated Certificate of Incorporation is incorpora-
ted by reference to Exhibit 3.1 of Amendment No. 2 to Registrant's
Registration Statement on Form S-1 (No. 33-59598).
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C.
23.1 Independent Auditors' Consent (Deloitte & Touche LLP)
23.2 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C.
(included in Exhibit 5.1)
24.1 Power of Attorney
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are 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 1993;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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 the registration
statement; and
(iii) 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;
Provided, however, that Paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8 and 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
Section 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 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 undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 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 Exchange 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 or 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 of 1933 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 that 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 of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities At 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 Township of Parsippany, State of New Jersey, on the 16th day
of July, 1996.
DIALOGIC CORPORATION
By: /s/Edward B. Jordan
Edward B. Jordan
Vice President
Pursuant to the requirements of the Securities Act of 1933, this
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 July 16, 1996
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Nicholas Zwick
Howard G. Bubb* Director, President and Chief July 16, 1996
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Howard G. Bubb Executive Officer
Kenneth J. Burkhardt, Jr.* Director July 16, 1996
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Kenneth J. Burkhardt, Jr.
Masao Konomi* Director July 16, 1996
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Masao Konomi
John N. Lemasters* Director July 16, 1996
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John N. Lemasters
Francis G. Rodgers* Director July 16, 1996
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Francis G. Rodgers
James J. Shinn* Director July 16, 1996
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James J. Shinn
/s/Edward B. Jordan Chief Financial and July 16, 1996
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Edward B. Jordan
*By: /s/ Edward B. Jordan
_____________________
Edward B. Jordan
Attorney-in-Fact
EXHIBIT INDEX
Exhibit No. Description Page No.
4.1 Registrant's Restated Certificate of Incorporation
(incorporated by reference)
5.1 Opinion of Lowenstein, Sandler, Kohl,
Fisher & Boylan, P.C.
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
EXHIBIT 5.1
July 16, 1996
Dialogic Corporation
1515 Route 10
Parsippany, NJ 07054
Gentlemen:
You have requested our opinion in connection with the
registration with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, of 29,874 shares of the common stock ("Common Stock")
of Dialogic Corporation (the "Company") on a registration statement on Form S-8
(the "Registration Statement"). The shares of Common Stock to which the
Registration Statement relates are issuable pursuant to the replacement options
granted in accordance with the Company's June 27, 1996 merger agreement (the
"Merger Agreement") with Dianatel Corporation (the "New Options").
We have examined and relied upon originals or copies,
authenticated or certified to our satisfaction, of all such corporate records of
the Company, communications or certifications of public officials, certificates
of officers, directors and representatives of the Company, and such other
documents as we have deemed relevant and necessary as the basis of the opinions
expressed herein. In making such examination, we have assumed the genuineness of
all signatures, the authenticity of all documents tendered to us as originals,
and the conformity to originals documents of all documents submitted to us as
certified or photostatic copies.
Based upon the foregoing and relying upon statements of fact
contained in the documents which we have examined, we are of the opinion that
the shares of Common Stock offered by the Company pursuant to the Merger
Agreement and registered pursuant to the Registration Statement, when paid for
in full by the participants in accordance with the terms of the New Options,
will be, when issued, legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and any amendment thereto.
Very truly yours,
LOWENSTEIN, SANDLER, KOHL,
FISHER AND BOYLAN, P.A.
/s/ Peter H. Ehrenberg
_______________________________
Peter H. Ehrenberg
PHE/wpc
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Dialogic Corporation on Form S-8 of our report dated February 14, 1996,
appearing in the Annual Report on Form 10-K of Dialogic Corporation for the year
ended December 31, 1995.
DELOITTE & TOUCHE LLP
New York, New York
July 15, 1996
POWER OF ATTORNEY
WHEREAS, the undersigned officers and directors of Dialogic Corporation
desire to authorize Nicholas Zwick, Howard G. Bubb and Edward B. Jordan to act
as their attorneys-in-fact and agents, for the purpose of executing and filing a
registration statement on Form S-8, including all amendments thereto,
NOW, THEREFORE,
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Nicholas Zwick, Howard G. Bubb and Edward
B. Jordan, and each of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, to sign a Registration
Statement on Form S-8 registering up to 29,874 shares of the Common Stock of
Dialogic Corporation issuable upon exercise of stock options which may be
granted to former holders of options to purchase the common stock of Dianatel
Corporation, including any and all amendments and supplements thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have executed this power of
attorney in the following capacities on this 10th day of June, 1996.
SIGNATURE TITLE
/s/ Howard G. Bubb
______________________________ President, Chief Executive Officer and Director
Howard G. Bubb
/s/ Kenneth J. Burkhardt, Jr
______________________________ Director
Kenneth J. Burkhardt, Jr.
/s/ Masao Konomi
______________________________ Director
Masao Konomi
/s/John N. Lemasters
______________________________ Director
John N. Lemasters
/s/ Francis G. Rodgers
______________________________ Director
Francis G. Rodgers
/s/ James J. Shinn
______________________________ Director
James J. Shinn
/s/ Nicholas Zwick
______________________________ Director
Nicholas Zwick
/s/ Edward B. Jordan
______________________________ Treasurer, Vice President and Chief Financial
Edward B. Jordan Officer (Chief Financial and Accounting Officer)
