Securities Registration: Employee Benefit Plan (s-8)
21 August 2017 - 11:33PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on August 21, 2017
Registration
No. 333-211534
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
Digital
Ally, Inc.
(Exact
name of registrant as specified in its charter)
Nevada
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20-0064269
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(State
or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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9705
Loiret Boulevard, Lenexa, KS
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66219
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Digital
Ally, Inc. 2015 Amended and Restated Stock Option and Restricted Stock Plan
(Full
title of the plan)
Stanton
E. Ross
c/o
Digital Ally, Inc.
9705
Loiret Boulevard
Lenexa,
Kansas 66219
(Name
and address of agent for service)
(913)
814-7774
(Telephone
number, including area code, of agent for service)
With
copies to:
Christian
J. Hoffmann, III
Securities
Counsel
Digital
Ally, Inc.
9705
Loiret Boulevard
Lenexa,
Kansas 66219
(913)
814-7774
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer
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[ ]
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Accelerated
filer
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[ ]
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Non-accelerated
filer
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[ ]
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(Do
not check if a smaller reporting
company)
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Smaller
reporting company
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[X]
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CALCULATION
OF REGISTRATION FEE
Title of securities
to be registered
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Amount
to be
registered
(1)
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Proposed maximum
offering price
per share
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Proposed maximum
aggregate offering
price
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Amount of
registration fee
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Common Stock
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500,000
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(2)
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$
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3.40
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(3)
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$
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1,700,000
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(3)
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$
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197.03
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(3)
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(1)
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Pursuant
to Rule 416 under the Securities Act of 1933, as amended, this registration statement also covers any additional shares of
common stock to be issued as a result of stock splits, stock dividends, or similar transactions.
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(2)
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Represents
500,000 shares of common stock reserved for issuance pursuant to the Digital Ally, Inc. 2015 Amended and Restated Stock Option
and Restricted Stock Plan (the “2015 Amended Plan”).
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(3)
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Pursuant
to Rule 457(h) under the Securities Act of 1933, as amended, estimated solely for the purpose of calculating the registration
fee based on the average of the high and low prices of the Company’s common stock as reported on the Nasdaq Capital
Market on August 17, 2017.
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EXPLANATORY
NOTE
The
purpose of this Registration Statement on Form S-8 is to increase the number of securities of the same class as other securities
for which a Registration Statement on Form S-8 of Digital Ally, Inc., a Nevada corporation (the “Registrant,” “we”
or “us”) relating to the same employee benefit plan is currently effective.
On
June 22, 2015, we filed a Registration Statement (333-205136) in accordance with the requirements of Form S-8 under the Securities
Act of 1933, as amended, to register 300,000 shares of our common stock, $0.001 par value per share, that had been authorized
and reserved for issuance under the 2015 Stock Option and Restricted Stock Plan (the “2015 Plan”). The contents of
such previous Registration Statement are hereby incorporated by reference into this Registration Statement.
On
May 23, 2016, we registered an additional 450,000 shares of common stock issuable under our Amended and Restated 2015 Stock Option
and Restricted Stock Plan (the “2015 Amended Plan”). The Board of Directors of the Registrant approved the increase
in the number of shares available for grant under the 2015 Amended Plan and our shareholders approved the amendment of the 2015
Plan to increase in the number of shares reserved for issuance under the 2015 Plan at the Annual Meeting of Shareholders held
on May 12, 2016.
This
Registration Statement will register an additional 500,000 shares of common stock issuable under our 2015 Amended Plan. The Board
of Directors of the Registrant approved the increase in the number of shares available for grant under the 2015 Amended Plan and
our shareholders approved the amendment of the 2015 Amended Plan to increase in the number of shares reserved for issuance under
the 2015 Amended Plan at the Special Meeting of Shareholders held on August 14, 2017.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
document(s) containing the information required by Part I of this registration statement will be sent or given to the participants
in the 2015 Amended Plan as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”).
Such documents need not be filed with the Securities and Exchange Commission (the “Commission”) either as part of
this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents
and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this registration
statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
This
registration statement incorporates by reference the documents listed below that we have previously filed with the Commission.
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our Annual Report on Form 10-K for the year ended December 31, 2016, as filed on March 28, 2017 (File No. 001-33899);
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our Quarterly Report on Form 10-Q for the quarter ended March 31, 2017, as filed on May 15, 2017 (File No. 001-33899);
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our Quarterly Report on Form 10-Q for the quarter ended June 30, 2017, as filed on August 14, 2017 (File No. 001-33899);
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our definitive Proxy Statement on Schedule 14A, as filed on April 3, 2017 (File No. 001-33899);
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our definitive Proxy Statement on Schedule 14A, as filed on June 30, 2017 (File No. 001-33899);
●
Our Current Reports on Form 8-K filed on January 3, 2017, January 26, 2017, March 28, 2017, May 15, 2017, June 2, 2017, June 30,
2017, August 15, 2017 and August 17, 2017 (excluding any information furnished pursuant to Item 2.02 or Item 7.01 of any such
Current Report on Form 8-K) (File No. 001-33899); and
●
the description of our common stock contained in our registration statement on Form SB-2, filed on October 16, 2006, No. 333-138025
(the “October 2006 Form SB-2”), and any amendment or report subsequently filed for the purpose of updating such description.
In
addition, all documents filed by us with the Commission subsequent to the filing date of this registration statement pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (other than current reports or portions thereof
furnished under Item 2.02 or Item 7.01 of Form 8-K), and 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 this registration statement and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified
or superseded for purposes of this registration statement to the extent that a statement contained herein or in any subsequently
filed document which also is, or is deemed to be, incorporated by reference herein modifies or supersedes such prior statement.
Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this
registration statement except as indicated herein.
Item
4. Description of Securities.
Not
applicable. The class of securities to be offered is registered under Section 12 of the Exchange Act.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
Section
78.7502 of the Nevada Revised Statutes permits the inclusion in our articles of incorporation of a provision limiting or eliminating
the potential monetary liability of directors to a corporation or its stockholders by reason of their conduct as directors. The
provision does not permit any limitation on, or the elimination of, liability of a director for disloyalty to his or her corporation
or its stockholders, failing to act in good faith, engaging in intentional misconduct or a knowing violation of the law, obtaining
an improper personal benefit or paying a dividend or approving a stock repurchase that was illegal under Nevada law. Accordingly,
the provisions limiting or eliminating the potential monetary liability of directors permitted by Nevada law apply only to the
“duty of care” of directors, i.e., to unintentional errors in their deliberations or judgments and not to any form
of “bad faith” conduct.
The
articles of incorporation of the Company contain a provision which eliminates the personal monetary liability of directors to
the extent allowed under Nevada law. Accordingly, a stockholder is able to prosecute an action against a director for monetary
damages only if he or she can show a breach of the duty of loyalty, a failure to act in good faith, intentional misconduct, a
knowing violation of law, an improper personal benefit or an illegal dividend or stock repurchase, as referred to in the amendment,
and not “negligence” or “gross negligence” in satisfying his or her duty of care. Nevada law applies only
to claims against a director arising out of his or her role as a director and not, if he or she is also an officer, his or her
role as an officer or in any other capacity or to his or her responsibilities under any other law, such as the federal securities
laws.
In
addition, the Company’s articles of incorporation and bylaws provide that the Company will indemnify its directors, officers,
employees and other agents to the fullest extent permitted by Nevada law. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions,
or otherwise. The Company has been advised that in the opinion of the Commission, such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. If a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
No
pending litigation or proceeding involving a director, officer, employee or other agent of the Company as to which indemnification
is being sought exists, and the Company is not aware of any pending or threatened material litigation that may result in claims
for indemnification by any director, officer, employee or other agent.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
See
the Exhibit Index which is incorporated herein by reference.
Item
9. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low
or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
and
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(iii)
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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;
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Provided,
however, that:
(A)
Paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13
or Section 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;
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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(i)
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Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and
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(ii)
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Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract
of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
Provided, however
, that no statement
made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date; or
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(iii)
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Each
prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and
included in the registration statement as of the date it is first used after effectiveness.
Provided, however
, that
no statement made in a registration statement or prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such
document immediately prior to such date of first use;
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(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(i)
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Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
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(ii)
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Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
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(iii)
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The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
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(iv)
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Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant’s annual report pursuant to 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 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.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question 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.
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 Lenexa, State of Kansas, on August 21, 2017.
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Digital
Ally, Inc.
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(Registrant)
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By:
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/s/
Stanton E. Ross
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Stanton
E. Ross
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Chairman,
President & Chief Executive Officer
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Power
of Attorney
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints
Stanton E. Ross
and
Thomas J. Heckman
and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, and any other regulatory authority, 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 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 substitutes, may lawfully do or cause to be
done by virtue hereof.
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.
Person
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Title
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Date
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/s/
Stanton E. Ross
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Chairman,
President and Chief Executive Officer
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August
21, 2017
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Stanton
E. Ross
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(Principal
Executive Officer)
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/s/
Leroy C. Richie
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Lead
Outside Director
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August
21, 2017
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Leroy
C. Richie
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/s/
Daniel F. Hutchins
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Director
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August
21, 2017
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Daniel
F. Hutchins
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/s/
Michael J. Caulfield
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Director
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August
21, 2017
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Michael
J. Caulfield
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/s/
Thomas J. Heckman
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Chief
Financial Officer, Secretary, and Treasurer
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August
21, 2017
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Thomas
J. Heckman
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(Principal
Financial and Accounting Officer)
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Digital
Ally, Inc.
EXHIBIT
INDEX
TO
FORM
S-8 REGISTRATION STATEMENT
Exhibit
Number
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Description
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Incorporated
Herein by
Reference
To
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Filed
Herewith
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5.1
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Opinion
of Christian J. Hoffmann, III, Securities Counsel, Digital Ally, Inc.
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X
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10.1
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Digital
Ally, Inc. Amended and Restated 2015 Stock Option and Restricted Stock Plan
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X
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23.1
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Consent
of RSM US LLP
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X
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23.2
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Consent
of Christian J. Hoffmann, III, Securities Counsel, Digital Ally, Inc.
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Included
in Exhibit 5.1
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24.1
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Powers
of Attorney
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See
signature page.
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