As filed with the Securities and Exchange Commission on December 6, 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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IMAGINON, INC.
(Exact name of Registrant specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
84-1217733
(I.R.S. Employer Identification No.)
1313 Laurel Street
San Carlos, California 94070
- ---------------------- ------
(Address of Principal Executive Offices) (Zip Code)
Individual Warrant Agreements
(Full title of the plans)
David M. Schwartz
President and Chief Executive Officer
Imaginon, Inc.
1313 Laurel Street
San Carlos, California 94070
(Name and address of agent for service)
(650) 596-9300
(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
Maximum Proposed Maximum
Title of Amount to be Offering Aggregate Offering Amount of
Securities to be Registered (1) Price per Price Registration Fee
Registered Share
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Common Stock,
$.01 par value 2,500,000 $0.05 (2) $125,000 $29.88
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Total 2,500,000 $0.05 (2) $125,000 $29.88
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(1) This Registration Statement is being filed to register 2,500,000
shares of common stock underlying outstanding individual warrant
agreements (the "Plan"). This Registration Statement shall cover
any additional shares of common stock which become issuable under
the Plan 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 Imaginon's common stock as
quoted on the OTC Bulletin Board on Monday December 3, 2001.
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes
effective.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information.
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Imaginon, Inc. (the "Registrant") will provide each consultant (the
"Recipient") with documents that contain information related to individual
warrant agreements (collectively, the "Plans") which provide for 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:
Current report on Form 8-K filed on February 28, 2001.
Annual Report on Form 10KSB/A for year ended December 31, 2000 filed on
May 1, 2001.
Annual Report on Form 10KSB/A for year ended December 31, 2000 filed on
April 30, 2001.
Annual Report on Form 10KSB/A for year ended December 31, 2000 filed on
April 6, 2001.
Annual Report on Form 10KSB for year ended December 31, 2000 filed on
April 2, 2001.
Quarterly Report on Form 10-QSB for the quarter ended March 31, 2001
filed on May 18, 2001.
Quarterly Report on Form 10-QSB for the quarter ended June 30, 2001
filed on August 20, 2001.
Quarterly Report on Form 10-QSB for the quarter ended September 30,
2001 filed on November 19, 2001.
The description of the common stock, par value $0.01 per share of the
Registrant as contained in exhibits to Item 13 of the Registrant's
Annual Report on Form 10-KSB/A for the year ended December 31, 2001
filed on April 6, 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.
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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 and Article Ninth
of the Registrant's Certificate of Incorporation provide for, under certain
circumstances, the indemnification of the Registrant'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 Article Ninth of the Registrant's Certificate of
Incorporation and 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 liabilities: (i) were taken in good faith;
(ii) were reasonably believed to have been in or not opposed to the Registrant'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 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
the Registrant 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 the Registrant's best interest and must not have been adjudged
liable to the Registrant 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 the Registrant in which a director is adjudged
liable to the Registrant, 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 the Registrant 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
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person furnishes to the Registrant a written agreement to repay such advances if
it is determined that he is not entitled to be indemnified by the Registrant.
The statutory section cited above further specifies that any provisions
for indemnification of or advances for expenses does not exclude other rights
under the Registrant'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 Registrant has purchased insurance policies in force until November
1, 2001 which may 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 while the policy was in force. Such policies may provide for
indemnification whether or not the corporation would otherwise have the power to
provide for it.
Article VIII of the Registrant's Bylaws provides that the Registrant
shall indemnify its directors, officers, employees and agents to the fullest
extent permitted by the Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed.
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The shares of common stock being registered were issued to an
individual upon exercise of a warrant for common stock at an exercise price of
$0.02 per share. The warrant was issued to the individual in exchange for
consulting services provided to the Registrant regarding business strategy of
the Registrant, which services were valued at $75,000. The Registrant 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 each 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 the Registrant; (iii) the
securityholder represented to the Registrant 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; (iv) the Registrant placed
appropriate restrictive legends on the certificates representing the securities
regarding the restricted nature of these securities; and (v) prior to completion
of the transaction, the securityholder was informed in writing of the restricted
nature of the securities, provided with all information regarding the Registrant
as required under Rule 502 of Regulation D and was given the opportunity to ask
questions of and receive additional information from the Registrant regarding
its 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
4.1 Form of Warrant Agreement for warrants exercisable at $0.02 per
share
5.1 Opinion of Counsel and Consent of Friedlob Sanderson Paulson &
Tourtillott, LLC
10.1 Consulting Agreement by and among Imaginon, Inc. and Mr. Henry
Fong dated November 20, 2001
23.1 Consent of Friedlob Sanderson Paulson & Tourtillott, LLC (See
Exhibit 5.1)
23.2 Consent of Independent Certified Public Accountants - Gelfond
Hochstadt Pangburn, P.C.
23.3 Acknowledgement of Independent Certified Public Accountants -
Gelfond Hochstadt Pangburn, P.C.
24.1 Power of Attorney - Included on Signature Page
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.
(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) 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.
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(e) 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
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 Carlos, State of California, on this 6th day of
December, 2001.
Imaginon, Inc.
By /s/ David M. Schwartz
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David M. Schwartz, Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and/or
directors of Imaginon, Inc., by virtue of their signatures appearing below,
hereby constitute and appoint David M. Schwartz and James A Newcomb, 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/ David M. Schwartz Chief Executive Officer December 6, 2001
- --------------------- and Director
David M. Schwartz
/s/ James A Newcomb Chief Financial Officer December 6, 2001
- --------------------- and Director
James A. Newcomb
/s/ Mary E. Finn Director December 6, 2001
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Mary E. Finn
/s/ Dennis Allison Director December 6, 2001
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Dennis Allison
/s/ Jim Polizotto Director December 6, 2001
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Jim Polizotto
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