As filed with the Securities and Exchange Commission on April 24, 2003
Registration No. 33-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FOCUS ENHANCEMENTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3144936
(State or Other Jurisdiction (IRS Employer
of Incorporation or Organization) Identification No.)
FOCUS ENHANCEMENTS, INC.
2002 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the plan)
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Brett Moyer
President and Chief Executive Officer
FOCUS Enhancements, Inc.
1370 Dell Avenue
Campbell, California 95008
(408) 866-8300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Gregory A. Gehlmann, Esq.
Manatt Phelps & Phillips, LLP
1501 M Street, NW, Suite 700
Washington, DC 20005
(202) 463-4334
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Per Aggregate Offering Amount of
Be Registered Registered(1) Share(2) Price(2) Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock 1,000,000 $0.62 $620,000 $50.16
- ---------------------------------------------------------------------------------------------------------------------------
Total 1,000,000 $0.62 $620,000 $50.16
===========================================================================================================================
(1) These shares are reserved for issuance pursuant to Focus Enhancements,
Inc.'s 2002 Non Qualified Stock Option Plan (the "Plan"). Pursuant to Rule
416, also being registered are additional shares of common stock as may
become issuable under the Plan through the operation of anti-dilution
provisions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based upon the average of the high and low
sales price of the common stock of Focus Enhancements, Inc. in the
consolidated reporting system of the Nasdaq Small Cap Market System on
April 21 2003, of $0.62
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PRSPECTUS
Item 1. Plan Information.*
- -------
Item 2. Registrant Information and Employee Plan Annual Information.*
- -------
*This Registration Statement relates to the registration of 1,000,000
shares of Focus Enhancements, Inc. (the "Company" or "Registrant") common stock,
$0.01 par value per share (the "Common Stock") issuable to employees, officers
and directors of the Focus as compensation for services in accordance with the
Focus Enhancements, Inc. 2002 Non-Qualified Stock Option Plan (the "Plan").
Documents containing the information required by Part I of this Registration
Statement will be sent or given to participants in the Plan as specified by Rule
428(b)(1). Such documents are not filed with the Securities and Exchange
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424, in reliance on Rule 428.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents of Focus Enhancements, Inc., a Delaware
corporation, previously filed with the Securities and Exchange Commission
("SEC") are incorporated by reference:
(1) Annual Report on Form 10-KSB, as amended, for the year ended December
31, 2002; and
(2) The description of Common Stock contained in Registration Statement on
Form SB-2, File No. 33-60248-B.
All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 or 15(d) or the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and the Prospectus that is part hereof from the date of
filing such documents. Any statement contained 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 a
statement contained herein or in any subsequently filed document which also is
deemed to be incorporated by reference herein modifies or supercedes such
statement. Any such statement so modified or superceded shall not be deemed,
except as so modified or superceded, to constitute a part of this Registration
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.
The General Corporation Law of the State of Delaware permits a
corporation to indemnify its directors, officers, employees and agents for any
liability arising out of an action or threatened action, other than an action by
or in the right of the corporation, to which such person is a party due to his
or her service as a director, officer, employee or agent, provided that such
person acted in good faith and in a manner he or she reasonably believed to be
in, or not opposed to, the best interests of the corporation, and with respect
to any criminal action, which he or she had no reason to believe was unlawful.
The General Corporation Law of the State of Delaware permits a corporation to
indemnify its directors, officers, employees and agents for any liability
arising out of an action or threatened action by or in the right of the
corporation to which such person is a party due to his or her service as a
director, officer,
employee or agent, provided that such person acted in good faith and in a manner
he or she reasonably believed to be in, or not opposed to, the best interests of
the corporation, except that there may be no such indemnification if the person
is found liable to the corporation unless, in such a case, the court determines
that such person is entitled to indemnification. Focus' Certificate of
Incorporation provides for the indemnification of its directors and officers.
In the event that a claim for indemnification against such liabilities
(other than the payment by the small business issuer of expenses incurred or
paid by a director, officer or controlling person of the small business issuer
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 small business issuer will, unless in the opinion of 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the small business issuer pursuant to the foregoing provisions, or
otherwise, the small business issuer 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 small business issuer of expenses incurred or
paid by a director, officer or controlling person of the small business issuer
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 small business issuer will, unless in the opinion of 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.
Item 7. Exemption from Registration Claimed.
None.
Item 8. Exhibits.
Exhibit
Number Description
4.1 Specimen Certificate of the Registrant, filed as an Exhibit to
Focus' Registration Statement on Form SB-2, No. 33-60248-B,
and incorporated herein by reference.
5.1 Opinion of Manatt, Phelps & Phillips, LLP.
23.1 Independent Auditors' Consent
23.2 Consent of Manatt, Phelps & Phillips, LLP (included in Exhibit
5.1).
99.1 Registrant's 2002 Non-Qualified Stock Option Plan.
Item 9. Undertakings.
1. The undersigned small business issuer hereby undertakes:
(i) To file, during any period in which offers or
sales are being made, a post-effective amendment to this registration statement
to include any material information with respect to the plan of distribution.
(ii) For determining liability under the Securities
Act of 1933, treat each post-effective amendment 25 a new registration statement
of the securities offered, and the offering of the securities at that time to be
the initial bona fide offering.
(iii) To file a post-effective amendment to remove
from registration any of the securities that remain unsold at the end of the
offering.
2. The undersigned small business issuer hereby undertakes
that, for purposes of determining any liability under the Securities Act of
1933, each filing of the small business issuer'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.
3. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the small business issuer pursuant to the foregoing
provisions, or otherwise, the small business issuer 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 small business issuer of expenses incurred or paid by a
director, officer or controlling person 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 small business issuer
will, unless in the opinion of it 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, the registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned thereunto duly authorized, in the City of Campbell, State of
California, on April 22, 2003.
FOCUS ENHANCEMENTS, INC.
By: /s/ Brett A. Moyer
-------------------------
Brett A. Moyer
President and
Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
hereby authorizes Brett A. Moyer and Gary L. Williams each of them, to file one
or more amendments (including additional post-effective amendments) to this
Registration Statement, which amendments may make such changes as any of such
persons deem appropriate, and each person, individually and in each capacity
stated below, hereby appoints each of such persons as attorney-in-fact to
execute in his name and on his behalf any of such amendments to the Registration
Statement.
Pursuant to the requirements of the Securities Act, this amendment to
the registrant's registration statement has been signed by the following persons
in the capacities and on the dates indicated. In accordance with the Exchange
Act, this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Signature Title Date
/s/ Brett A. Moyer President, Chief Executive April 22, 2003
- --------------------------------------- Officer and Director
Brett A. Moyer
/s/ Gary L. Williams Vice President of Finance April 22, 2003
- --------------------------------------- & Chief Financial Officer
Gary L. Williams (Principal Accounting Officer)
/s/ N William Jasper, Jr. Chairman of the Board April 22, 2003
- --------------------------------------- of Directors
N William Jasper, Jr.
/s/ Carl E. Berg Director April 22, 2003
- ---------------------------------------
Carl E. Berg
/s/ William B. Coldrick Director April 22, 2003
- ---------------------------------------
William B. Coldrick
/s/ Michael L. D'Addio Director April 22, 2003
- ---------------------------------------
Michael L. D'Addio
/s/ Timothy E. Mahoney Director April 22, 2003
- ---------------------------------------
Timothy E. Mahoney
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 Specimen Certificate of the Registrant, filed as an Exhibit to
Focus' Registration Statement on Form SB-2, No. 33-60248-B, and
incorporated herein by reference.
5.1 Opinion of Manatt, Phelps & Phillips, LLP.
23.1 Independent Auditors' Consent
23.2 Consent of Manatt, Phelps & Phillips, LLP (included in Exhibit
5.1).
99.1 Registrant's 2002 Non-Qualified Stock Option Plan.