As filed with the Securities and Exchange Commission on September 27, 2002
Registration No. 333-74778
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
IMAGISTICS INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
DELAWARE 06-1611068
(State or other juris- (I.R.S. Employer
diction of incorporation Identification
or organization) Number)
100 OAKVIEW DRIVE
TRUMBULL, CONNECTICUT 06611
(203) 365-7000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
IMAGISTICS INTERNATIONAL INC. 2001 STOCK PLAN
IMAGISTICS INTERNATIONAL INC. NON-EMPLOYEE DIRECTORS' STOCK PLAN
(Full title of the Plans)
MARK S. FLYNN, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
IMAGISTICS INTERNATIONAL INC.
100 OAKVIEW DRIVE
TRUMBULL, CONNECTICUT 06611
(203) 365-7000
(Name, address and telephone number, including area code, of agent for service)
Copies of all communications, including all communications sent to the agent
for service, should be sent to:
MICHAEL GRUNDEI, ESQ.
WIGGIN & DANA LLP
400 ATLANTIC STREET
STAMFORD, CONNECTICUT 06901
(203) 363-7600
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EXPLANATORY NOTE
This Post Effective Amendment is being filed to reflect the amendment
of certain terms of the Registrant's 2001 Stock Plan.
PART I
ITEM 1. PLAN INFORMATION
Not required to be filed with this registration statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed with this registration statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Imagistics International Inc. (the "Registrant"
or the "Company") pursuant to the Securities Exchange Act of 1934, as amended
(the "1934 Act") (File No. 1-16449), are incorporated by reference herein:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 2001.
(b) The Company's Quarterly Report on Form 10-Q for the three-month
period ended March 31, 2002.
(c) The Company's Quarterly Report on Form 10-Q for the three-month
period ended June 30, 2002.
(d) The Company's Proxy Statement filed on March 27, 2002.
(e) The Company's Current Report on Form 8-K filed on July 23, 2002.
(f) The description of the Company's Common Stock and the Rights
contained in the Company's Registration Statement on Form 10 dated November 14,
2001 (the "Form 10").
In addition to the foregoing, all documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior
to the filing of a post-effective amendment indicating that all of the
securities offered hereunder have been sold or deregistering all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents. Any statement contained in a document incorporated by reference in
this Registration Statement 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 that is also 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 Registration Statement.
The Registrant will provide, without charge to each person, including
any beneficial owner, to whom this document is delivered, upon written or oral
request of such person, a copy of any or all of the documents incorporated
herein by reference (other than exhibits, unless such exhibits specifically are
incorporated by reference into such documents or this document). Requests for
such documents should be submitted in writing, addressed to the office of the
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Corporate Secretary, Imagistics International Inc., 100 Oakview Drive, Trumbull,
Connecticut 06611.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable, see Item 3(f) above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters in connection with any original issuance of
Common Stock offered hereby were passed upon for the Registrant by Mark S.
Flynn, Esq., Vice President, General Counsel and Secretary of the Registrant.
Mr. Flynn owns shares of Common Stock which represent less than 0.1% of the
currently outstanding shares of all classes of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
(the "Delaware Law") empowers a Delaware corporation to indemnify any persons
who are, or are threatened to be made, parties to any pending or completed legal
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by
reason of the fact that such person was an officer or director of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer or
director acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his conduct was illegal. A Delaware
corporation may indemnify officers and directors against expenses (including
attorney's fees) in connection with the defense or settlement of an action by or
in the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer is
successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him against the expenses which such an
officer or director actually and reasonably incurred.
In accordance with the Delaware Law, the Registrant's Certificate of
Incorporation contains a provision to limit the personal liability of the
Registrant's directors for violations of their fiduciary duty. This provision
eliminates each director's liability to the Registrant or its stockholders for
monetary damages except (i) for any breach of the director's duty of loyalty to
the Registrant or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware Law providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions, or
(iv) for any transaction from which a director derived an improper personal
benefit. The effect of this provision is to eliminate the personal liability of
directors for monetary damages for actions involving a breach of their fiduciary
duty of care, including any
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such actions involving gross negligence. In addition, the holders of Common
Stock are deemed to have consented to certain provisions of the Certificate of
Incorporation under which certain allocations of corporate opportunities are not
deemed to breach a director's fiduciary duty of loyalty.
The Registrant's Certificate of Incorporation provides for
indemnification of the Registrant's officers and directors to the full extent
permitted by applicable law.
In addition, the Registrant will maintain directors' and officers'
liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibit
No. Description
- --- -----------
4.1 Form of Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant's Form 10-K for the year ended December 31, 2001) *
4.2 Form of Amended and Restated By-laws of the Registrant (incorporated
by reference to the Form 10, Exhibit 3.2) *
4.3 Rights Agreement between the Registrant and its rights agent
(incorporated by reference to Exhibit 10.18 to the Registrant's Form
10-K for the year ended December 31, 2001) *
4.4 First Amendment Agreement to Rights Agreement between the Registrant
and its rights agent (incorporated by reference to Exhibit 10.30 to
the Registrant's Form 10-Q for the quarter ended June 30, 2002) *
4.5 Certificate of Designation of Series A Junior Participating
Preferred Stock (incorporated by reference to Exhibit 3.3 to the
Registrant's Form 10-Q for the quarter ended June 30, 2002) *
5 Opinion of Mark S. Flynn, Esq. regarding the legality of any
original issuance securities being registered +
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Mark S. Flynn, Esq. (included in Exhibit 5) +
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24.1 Powers of Attorney +
24.2 Power of Attorney of Craig R. Smith
99.1 Imagistics International Inc. 2001 Stock Plan +
99.2 Imagistics International Inc. Non-Employee Directors' Stock Plan +
99.3 First Amendment to the Imagistics International Inc. 2001 Stock Plan
- --------------------
* Incorporated herein by reference.
+ Previously filed.
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:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933, as amended (the
"1933 Act");
(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.
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 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the registration statement filed with the
Commission on December 7, 2001; 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
this 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 or Form F-3, and the information required
to be included in a post effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d)
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of the 1934 Act that are incorporated by reference into this
registration statement;
(2) That for the purpose of determining any liability under the
1933 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; and
(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
Annual Report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and
where applicable, each filing of the Plan's annual report pursuant to Section
15(d) of the 1934 Act) 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.
(c) Insofar as indemnification for liabilities arising under the 1933
Act 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 Commission such indemnification is
against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Trumbull, State of Connecticut, on this 27th day
of September, 2002.
IMAGISTICS INTERNATIONAL INC.
By: /s/ Mark S. Flynn
----------------------------------------
Mark S. Flynn
Vice President, General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Marc C. Breslawsky* Chairman, September 27, 2002
- ------------------------------------ Chief Executive Officer and
Marc C. Breslawsky Director (principal executive
officer)
/s/ Joseph D. Skrzypczak* Chief Financial Officer September 27, 2002
- ------------------------------------ (principal financial officer)
Joseph D. Skrzypczak
/s/ Timothy E. Coyne* Controller September 27, 2002
- --------------------------- (principal accounting officer)
Timothy E. Coyne
/s/ Thelma R. Albright* Director September 27, 2002
- ------------------------------------
Thelma R. Albright
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/s/ Michael J. Critelli* Director September 27, 2002
- ------------------------------------
Michael J. Critelli
/s/ T. Kevin Dunnigan* Director September 27, 2002
- ------------------------------------
T. Kevin Dunnigan
/s/ Ira D. Hall* Director September 27, 2002
- ------------------------------------
Ira D. Hall
/s/ Craig R. Smith Director September 27, 2002
- ------------------------------------
Craig R. Smith
/s/ James A. Thomas* Director September 27, 2002
- ------------------------------------
James A. Thomas
/s/ Mark S. Flynn
-----------------------
* By Mark S. Flynn
Attorney-in-fact
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INDEX TO EXHIBITS
Exhibit
No. Description
- --- -----------
4.1 Form of Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant's Form 10-K for the year ended December 31, 2001) *
4.2 Form of Amended and Restated By-laws of the Registrant (incorporated
by reference to the Form 10, Exhibit 3.2) *
4.3 Rights Agreement between the Registrant and its rights agent
(incorporated by reference to Exhibit 10.18 to the Registrant's Form
10-K for the year ended December 31, 2001) *
4.4 First Amendment Agreement to Rights Agreement between the Registrant
and its rights agent (incorporated by reference to Exhibit 10.30 to
the Registrant's Form 10-Q for the quarter ended June 30, 2002) *
4.5 Certificate of Designation of Series A Junior Participating
Preferred Stock (incorporated by reference to Exhibit 3.3 to the
Registrant's Form 10-Q for the quarter ended June 30, 2002) *
5 Opinion of Mark S. Flynn, Esq. regarding the legality of any
original issuance securities being registered +
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Mark S. Flynn, Esq. (included in Exhibit 5) +
24.1 Powers of Attorney +
24.2 Power of Attorney of Craig R. Smith
99.1 Imagistics International Inc. 2001 Stock Plan +
99.2 Imagistics International Inc. Non-Employee Directors' Stock Plan +
99.3 First Amendment to the Imagistics International Inc. 2001 Stock Plan
- --------------------
* Incorporated herein by reference.
+ Previously filed.
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