As filed with the Securities and Exchange Commission on April 5, 2002 Reg. No.
33 _____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
IMAGING TECHNOLOGIES CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE . . . . . . . . . . . . . . . . . . . 33-0021693
(State or other jurisdiction of incorporation) (I.R.S. Identification No.)
15175 Innovation Drive
San Diego, California 92128-3401
(Address of Principal Executive Offices including Zip Code)
2001 STOCK OPTION PLAN
(Full title of the plan)
Brian Bonar, President
Imaging Technologies Corporation
15175 Innovation Drive
San Diego, California 92128-3401
(Name and address of agent for service)
(858) 613-1300
(Telephone number, including area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
Title of Securities Amount to be Proposed Maximum Offering Price Proposed
Maximum Aggregate Offering
to be Registered. . Registered (1) Per Share (2) Price (2)
Common Stock. . . . 5,000,000 $ .02 $ 100,000
Title of Securities Amount of
to be Registered. . Registration Fee (2)
Common Stock. . . . $ 9.20
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan(s) described herein.
(2) Estimated solely for the purpose of calculating the registration fee on the
basis of non-outstanding options to purchase 5,000,000 shares under the Plan,
which are subject to future grant under the Plan, the average of the bid and
asked prices per share of the registrant's Common Stock on the Electronic
Bulletin Board on April 2, 2002 under the Plan, pursuant to Rules 457(h).
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by the Company with the Securities
and Exchange Commission (File No. 0-12641) pursuant to Section 13(a) of the
Securities Exchange Act of 1934 (the "1934 Act") are incorporated herein by
reference:
(a) The registrant's annual reports on Form 10-K for the fiscal years ended June
30, 2001, 2000, and 1999, respectively;
(b) The registrant's definitive proxy statement on Schedule 14A for the annual
meeting of stockholders held on September 28, 2001;
(c) The registrant's quarterly report on Form 10-Q for the fiscal quarters ended
December 31, 2001 and March 31, 2002.
(d) The registrant's current reports on Form 8-K filed on January 25, 2001; and
(e) The description of the registrant's common stock contained in the
registrant's Registration Statement on Form 8-A filed on July 6, 1984 under the
1934 Act, including any amendment or report filed for the purpose of updating
such description.
All documents filed subsequent to the date of this Registration Statement
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and 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 the 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
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides, in general, that a corporation incorporated under the laws of the
State of Delaware, such as the registrant, may 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 (other than a derivative action by or in
the right of the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another enterprise, against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. In the case of a derivative action, a Delaware corporation
may indemnify any such person against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or any other court in which such
action was brought determines such person is fairly and reasonable entitled to
indemnity for such expenses.
Our certificate of incorporation provides that directors shall not be
personally liable for monetary damages to our company or our stockholders for
breach of fiduciary duty as a director, except for liability resulting from a
breach of the director's duty of loyalty to our company or our stockholders,
intentional misconduct or willful violation of law, actions or inactions not in
good faith, an unlawful stock purchase or payment of a dividend under Delaware
law, or transactions from which the director derives improper personal benefit.
Such limitation of liability does not affect the availability of equitable
remedies such as injunctive relief or rescission. Our certificate of
incorporation also authorizes us to indemnify our officers, directors and other
agents to the fullest extent permitted under Delaware law. Our bylaws provide
that the registrant shall indemnify our officers, directors and employees. The
rights to indemnity thereunder continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors, and administrators of the person. In addition, expenses
incurred by a director or officer in defending any action, suit or proceeding by
reason of the fact that he or she is or was a director or officer of our company
shall be paid by the registrant unless such officer, director or employee is
adjudged liable for negligence or misconduct in the performance of his or her
duties.
This means that our certificate of incorporation provides that a director
is not personally liable for monetary damages to us or our stockholders for
breach of his or her fiduciary duties as a director. A director will be held
liable for a breach of his or her duty of loyalty to us or our stockholders, his
or her intentional misconduct or willful violation of law, actions or in actions
not in good faith, an unlawful stock purchase or payment of a dividend under
Delaware law, or transactions from which the director derives an improper
personal benefit. This limitation of liability does not affect the availability
of equitable remedies against the director including injunctive relief or
rescission. Our certificate of incorporation authorizes us to indemnify our
officers, directors and other agent to the fullest extent permitted under
Delaware law. We have entered into indemnification agreements with all of our
officers and directors. In some cases, the provisions of these indemnification
agreements may be broader than the specific indemnification provisions contained
in our certificate of incorporation or otherwise permitted under Delaware law.
Each indemnification agreement may require us to indemnify an officer or
director against liabilities that may arise by reason of his status or service
as an officer or director, or against liabilities arising from the director's
willful misconduct of a culpable nature.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4(a) Certificate of Incorporation of the Company, as amended, and currently in
effect. Incorporated by reference to Exhibits 3a, 3b, 3c. 3d, 3e, and 3g to the
Company's Form 10-K dated October 1, 2001.
4(b) By-Laws of the Company, as amended, and currently in effect. Incorporated
by
reference to Exhibit 3f to the Company's Form 10-K dated October 1, 2001.
5* Opinion of Naccarato & Associates as to the legality of the Common Stock
being
offered and consent.
23(a)* Consent of Boros & Farrington APC.
23(b)* Consent of Naccarato & Associates (included in Exhibit 5).
24** Powers of Attorney of directors and certain officers of the registrant.
99(a) Registrant's 2001 Stock Option Plan. Incorporated by reference to Exhibit
A
to the Company's proxy statement on Schedule 14A dated September 5, 2001.
99(b)* Form of Incentive Stock Option Contract under the 2001 Stock Option Plan.
99(c)* Form of Non-Qualified Stock Option Contract under the 2001 Stock Option
Plan.
* Filed herewith
** Filed as part of the signature page of the original filing of this
Registration Statement.
ITEM 9. UNDERTAKINGS.
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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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;
(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 (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, Form F-3, 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 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 that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to the
securities offered herein, 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 and controlling persons of the
registrant pursuant to the provisions described under Item 6 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.
IGNATURES
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 the 5th day of
April, 2002.
IMAGING TECHNOLOGIES CORPORATION
By: /S/ Brian Bonar
Name: Brian Bonar
Title: Chairman, President, and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brian Bonar with power of substitution, as his
attorney-in-fact, in all capacities, to sign any amendments to this registration
statement (including post-effective amendments) and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-facts or their substitutes may 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 below by the following persons in the capacities
indicated on the 5th day of April, 2002.
SIGNATURE. . . . . . . . . . . . . . . TITLE DATE
-------------------------------- ----
Chairman of the Board of Directors,
Chief Executive Officer, and
/s/ Brian Bonar. . . . . . . . . . . . Acting Chief Financial Officer
--------------------------------------
Brian Bonar. . . . . . . . . . . . . . (Principal Executive Officer and
Principal Accounting Officer). . . . April 5, 2002
/s/ Robert A. Dietrich . . . . . . . . April 5, 2002
--------------------------------------
Robert A. Dietrich . . . . . . . . . . Director
/s/ Eric W. Gaer . . . . . . . . . . . April 5, 2002
--------------------------------------
Eric W. Gaer . . . . . . . . . . . . . Director
/s/ Stephen J. Fryer . . . . . . . . . April 5, 2002
--------------------------------------
Stephen J. Fryer . . . . . . . . . . . Director
/s/ Richard H. Green . . . . . . . . . April 5, 2002
--------------------------------------
Richard H. Green . . . . . . . . . . . Director
EXHIBIT INDEX
Number. Description
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Certificate of Incorporation of the Company, as amended, and currently in
effect. Incorporated by reference to Exhibits 3(a), (b), (c), (d), (e), and (g)
4(a). . to the Company's Form 10-K dated October 1, 2001.
By-Laws of the Company, as amended, and currently in effect. Incorporated by
4(b). . reference to Exhibit 3(f) to the Company's Form 10-K dated October 1,
2001.
Opinion of Naccarato & Associates as to the legality of the Common Stock being
5*. . . offered and consent.
23(a)*. Consent of Boros & Farrington APC.
23(b)*. Consent of Naccarato & Associates (included in Exhibit 5).
24**. . Powers of Attorney of directors and certain officers of the registrant.
Registrant's 2001 Stock Option Plan. Incorporated by reference to Exhibit A to
99(a) . the Company's proxy statement on Schedule 14A dated September 5, 2001.
99(b)*. Form of Incentive Stock Option Contract under the 2001 Stock Option
Plan.
99(c)*. Form of Non-Qualified Stock Option Contract under the 2001 Stock Option
Plan.
* Filed herewith.
** Filed as part of the signature page of the original filing of this
Registration Statement.