As filed with the Securities and Exchange Commission on June 25, 2001
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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EQUITEX, INC.
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(Exact name of Registrant specified in its charter)
Delaware
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(State or other jurisdiction of
incorporation or organization)
84-0905189
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(I.R.S. Employer Identification No.)
7315 East Peakview Avenue
Englewood, Colorado 80111
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(Address of Principal Executive Offices) Zip Code
1999 Stock Option Plan,
Individual Compensation Plan and
Individual Stock Option and Warrant Agreements
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(Full title of the plans)
Henry Fong
President and Chief Executive Officer
Equitex, Inc.
7315 East Peakview Avenue
Englewood, Colorado 80111
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(Name and address of agent for service)
(303) 796-8940
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(Telephone number, including area code, of agent for service)
Copies to:
John W. Kellogg, Esq.
Rachana Sastry, Esq.
Friedlob Sanderson Paulson & Tourtillott, LLC
1400 Glenarm Place, Suite 300
Denver, Colorado 80202
(303) 571-1400
CALCULATION OF REGISTRATION FEE
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Proposed Proposed Maximum
Maximum Aggregate Offering
Title of Offering Price Price Amount of Registration
Securities to be Registered Amount to be Registered per Share Fee
(1)
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Common Stock, 2,141,300 $6.17 (2) $13,211,821 $3,302.96
$.02 par value
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Total 2,141,300 $6.17 (2) $13,211,821 $3,302.96
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(1) This Registration Statement is being filed to register (a) 2,141,300
shares of common stock underlying stock options outstanding and/or
eligible to be issued under the terms of the 1999 Stock Option Plan, an
individual compensation plan, and individual stock option or warrant
agreements (collectively the "Plans"). This Registration Statement shall
cover any additional shares of common stock which become issuable under
the Plans by reason of any stock dividend, stock split, recapitalization
or any other similar transaction without receipt of consideration which
results in an increase in the number of shares of the Registrant's common
stock.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) and Rule 457(c) under the
Securities Act of 1933, as amended (the "Act"). The offering price per
share and aggregate offering price are based upon the average of the high
and low prices of Equitex, Inc.'s common stock as quoted on the Nasdaq
SmallCap market on Monday June 18, 2001.
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information.
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Equitex, Inc. (the "Registrant") will provide each option holder and each
consultant (the "Recipient") with documents that contain information related to
the Registrant's 1999 Stock Option Plan, an individual compensation plan and
individual stock option or warrant agreements (collectively, the "Plans") which
provide for its compensation shares and other information including, but not
limited to, the disclosure required by Item 1 of Form S-8, which information is
not filed as a part of this Registration Statement (the "Registration
Statement"). The foregoing information and the documents incorporated by
reference in response 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 of 1933, as amended (the "Securities Act"). A Section 10(a)
prospectus will be given to each Recipient who receives shares of common stock
covered by this Registration Statement, in accordance with Rule 428(b)(1) under
the Securities Act.
Item 2. Registrant Information.
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The Registrant will provide to the Recipient a written statement advising
it of the availability of documents incorporated by reference in Item 3 of Part
II of this Registration Statement and of documents required to be delivered
pursuant to Rule 428(b) under the Securities Act without charge and upon written
or oral notice. The statement will include the address and telephone number to
which any requests for documents should be directed.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Commission by the Registrant are
hereby incorporated into this Registration Statement by reference:
Annual Report on Form 10K/A for year ended December 31, 2000
The description of Equitex's common stock contained in Equitex's
Registration Statement on Form 8-A filed July 21, 1983
Quarterly Report on Form 10-Q for the quarter ended March 31, 2001
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), prior to the filing of a post- effective amendment which indicates that
all shares offered hereunder have been sold or de-registers 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.
Item 4. Description of Securities.
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Not Applicable.
Item 5. Interests of Named Experts and Counsel.
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None.
Item 6. Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law provides for, under
certain circumstances, the indemnification of Equitex's officers, directors,
employees and agents against liabilities which they may incur in such
capacities. A summarization of the circumstances in which such indemnifications
provided for is contained herein, but that description is qualified in its
entirety by reference to the relevant Section of the Delaware General
Corporation Law.
In general, the statute provides that any director, officer, employee
or agent of a corporation may be indemnified against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement, actually and
reasonably incurred in a proceeding (including any civil, criminal,
administrative or investigative proceeding) to which the individual was a party
by reason of such status. Such indemnity may be provided if the indemnified
person's actions resulting in the
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liabilities: (i) were taken in good faith; (ii) were reasonably believed to have
been in or not opposed to Equitex's best interest; and (iii) with respect to any
criminal action, such person had no reasonable cause to believe the actions were
unlawful. Unless ordered by a court, indemnification generally may be awarded
only after a determination of independent members of the Board of Directors or a
committee thereof, by independent legal counsel or by vote of the stockholders
that the applicable standard of conduct was met by the individual to be
indemnified.
The statutory provisions further provide that to the extent a director,
officer, employee or agent is wholly successful on the merits or otherwise in
defense of any proceeding to which he was a party, he is entitled to receive
indemnification against expenses, including attorneys' fees, actually and
reasonably incurred in connection with the proceeding.
Indemnification in connection with a proceeding by or in the right of
Equitex in which the director, officer, employee or agent is successful is
permitted only with respect to expenses, including attorneys' fees actually and
reasonably incurred in connection with the defense. In such actions, the person
to be indemnified must have acted in good faith, in a manner believed to have
been in Equitex's best interest and must not have been adjudged liable to
Equitex unless and only to the extent that the Court of Chancery or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability, in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expense which the Court of Chancery or such other court shall deem proper.
Indemnification is otherwise prohibited in connection with a proceeding brought
on behalf of Equitex in which a director is adjudged liable to Equitex, or in
connection with any proceeding charging improper personal benefit to the
director in which the director is adjudged liable for receipt of an improper
personal benefit.
Delaware law authorizes Equitex to reimburse or pay reasonable expenses
incurred by a director, officer, employee or agent in connection with a
proceeding in advance of a final disposition of the matter. Such advances of
expenses are permitted if the person furnishes to Equitex a written agreement to
repay such advances if it is determined that he is not entitled to be
indemnified by Equitex.
The statutory section cited above further specifies that any provisions
for indemnification of or advances for expenses does not exclude other rights
under Equitex's Certificate of Incorporation, Bylaws, resolutions of its
stockholders or disinterested directors, or otherwise. These indemnification
provisions continue for a person who has ceased to be a director, officer,
employee or agent of the corporation and inure to the benefit of the heirs,
executors and administrators of such persons.
The statutory provision cited above also grants the power to Equitex to
purchase and maintain insurance policies which protect any director, officer,
employee or agent against any liability asserted against or incurred by him in
such capacity arising out of his status as such. Such policies may provide for
indemnification whether or not the corporation would otherwise have the
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power to provide for it. No such policies providing protection against
liabilities imposed under the securities laws have been obtained by Equitex.
Article VII Section 9 of Equitex's Bylaws provides that Equitex shall
indemnify its directors, officers, employees and agents to the fullest extent
permitted by the Delaware General Corporation Law. In addition, Equitex has
entered into agreements with its directors indemnifying them to the fullest
extent permitted by the Delaware General Corporation Law.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling
Equitex pursuant to the foregoing provisions, Equitex has been informed 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.
Item 7. Exemption from Registration Claimed.
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Of the 2,141,300 shares being registered, 20,000 shares of common stock
were issued pursuant to an individual compensation plan in exchange for legal
service valued at $120,000 and performed in connection with our acquisition
activities. We relied upon exemptions from registration provided by Sections
4(6) or 4(2) of the Securities Act of 1933, as amended, and Rule 506 promulgated
thereunder based upon (i) representations from the securityholder that he is an
accredited or sophisticated investor with experience in investing in securities
such that he could evaluate the merits and risks related to the securities; (ii)
that no general solicitation of the securities was made by us; (iii) the
securityholder represented to us that he was acquiring the securities for his
own account and not with a view towards further distribution; (iv) the
securities were "restricted securities" as that term is defined under Rule 144
promulgated under the Securities Act; (v) we placed appropriate restrictive
legends on the certificates representing the securities regarding the restricted
nature of these securities; and (vi) prior to completion of the transaction, the
securityholder was informed in writing of the restricted nature of the
securities, provided with all information regarding us as required under Rule
502 or Regulation D and was given the opportunity to ask questions of and
receive additional information from us regarding our financial condition and
operations.
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Item 8. Exhibits.
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The following is a complete list of exhibits filed as a part of this
Registration Statement, which Exhibits are incorporated herein.
No. Description
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5.1 Opinion of Counsel and Consent of Friedlob Sanderson
Paulson & Tourtillott, LLC
24.1 Power of Attorney - Included on Signature Page
23.1 Consent of Friedlob Sanderson Paulson & Tourtillott,
LLC (See Exhibit 5.1)
23.2A Consent of Independent Certified Public Accountants -
Gelfond Hochstadt Pangburn, P.C. (Filed herewith)
23.2B Acknowledgment of Independent Certified Public
Accountants - Gelfond Hochstadt Pangburn, P.C. (Filed
herewith)
23.3 Consent of Independent Certified Public Accountants -
Davis & Co., CPAs, P.C. (Filed herewith)
99.1 Equitex, Inc. 1999 Stock Option Plan. (Incorporated by
reference to Exhibit 10.4 to the Registrant's Form
10-KSB for the year ended December 31, 1998).
Item 9. Undertakings
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The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
additional or changed material information on the plan of distribution.
(a) (2) That, for determining any liability under the Securities Act,
it will treat each post- effective amendment as a new registration statement of
the securities offered, and the offering of such securities at that time to be
the initial bona fide offering.
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(a) (3) To file a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the offering.
(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 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.
(e) The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(h) 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.
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SIGNATURES
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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 Englewood, State of Colorado, on this 25nd day of
June, 2001.
Equitex, Inc.
By /s/ Henry Fong
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Henry Fong, President
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and/or
directors of Equitex, Inc., by virtue of their signatures appearing below,
hereby constitute and appoint Henry Fong and Thomas B. Olson, each with full
power of substitution, as attorneys-in-fact in their names, places and steads to
execute any and all amendments to this Registration Statement on Form S-8 in the
capacities set forth opposite their names below and hereby ratify all that said
attorneys-in-fact may do by virtue thereof.
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.
SIGNATURES TITLE DATE
- ---------- ----- -----
/s/ Henry Fong Principal Financial June 25, 2001
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Henry Fong and Accounting
Officer and Director
/s/ Russell L. Casement Director June 25, 2001
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Russell L. Casement
/s/ Aaron A. Grunfeld Director June 25, 2001
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Aaron A. Grunfeld
/s/ Joseph W. Hovorka Director June 25, 2001
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Joseph W. Hovorka
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Friedlob Sanderson Paulson & Tourtillott, LLC
1400 Glenarm Place, Suite 300
Denver, Colorado 80202-5099
June 25, 2001
Board of Directors
Equitex, Inc.
7315 East Peakview Avenue
Englewood, Colorado 80111
Re: Registration Statement on Form S-8
Opinion of Counsel
Gentlemen:
As counsel for Equitex, Inc. (the "Corporation"), a Delaware
corporation, we have examined the Certificate of Incorporation, the Bylaws and
Minutes of the Corporation and such other corporate records, documents and
proceedings, and have considered such questions of law as we deemed relevant for
the purpose of this opinion. We have also, as such counsel, examined the
Corporation's Registration Statement on Form S-8 (the "Registration Statement"),
which will be filed with the Securities and Exchange Commission today or shortly
thereafter, covering the sale of an aggregate of up to 2,141,300 shares (the
"Shares") of the Corporation's common stock including shares underlying stock
options that may be issued or granted under the terms of the 1999 Stock Option
Plan, an individual compensation plan, and individual stock option or warrant
agreements (collectively the "Plans") as described in and in accordance with the
terms of the Registration Statement.
Based upon the foregoing, we are of the opinion that the Shares, when
issued in accordance with the Plans, including upon exercise of any options in
accordance with their terms, will be duly and validly issued as fully paid and
non-assessable shares of common stock of the Corporation.
We hereby consent to the use of our name in such Registration
Statement and to the filing of this opinion as Exhibit 5.1 thereto. In giving
this consent, we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933
or the Rules and Regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
/s/ Friedlob Sanderson Paulson & Tourtillott, LLC
EXHIBIT 23.2A
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated March 30, 2001, except for Notes 16, 20, and 21, as
to which the date is May 15, 2001, which appears on page F-1 of the Annual
Report on Form 10-K/A of Equitex, Inc. for the year ended December 31, 2000.
/s/ Gelfond Hochstadt Pangburn, P.C.
GELFOND HOCHSTADT PANGBURN, P.C.
Denver, Colorado
June 22, 2001
EXHIBIT 23.2B
ACKNOWLEDGMENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We acknowledge the incorporation by reference in this Registration Statement on
Form S-8 of our report dated May 18, 2001, which appears on page 3 of the
Quarterly Report on Form 10-Q of Equitex, Inc. for the quarter ended March 31,
2001.
/s/ Gelfond Hochstadt Pangburn, P.C.
GELFOND HOCHSTADT PANGBURN, P.C.
Denver, Colorado
June 22, 2001
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated March 27, 1999 which appears on page F-2 of the
Annual Report on Form 10-K/A of Equitex, Inc. for the year ended December 31,
2000.
By /s/ Davis & Co., CPAs, P.C.
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Davis & Co., CPAs, P.C.
Englewood, Colorado
June 22, 2001