As filed with the Securities and Exchange Commission on June 18, 2004
Registration No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
________________________
I/OMAGIC CORPORATION
(Exact name of registrant as specified in its charter)
________________________
NEVADA 88-0290263
_______________________________ ___________________
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4 MARCONI
IRVINE, CA 92618
_________________________________________________________
(Address of Principal Executive Offices) (Zip Code)
I/OMAGIC CORPORATION
2003 STOCK OPTION PLAN
_________________________________________________________
(Full title of the plan)
TONY SHAHBAZ
CHIEF EXECUTIVE OFFICER
4 MARCONI
IRVINE, CA 92618
_________________________________________________________
(Name and address of agent for service)
(949) 707-4800
_________________________________________________________
(Telephone number, including area code, of agent for service)
Copies to:
CORA LO, ESQ. LARRY A. CERUTTI, ESQ.
I/OMAGIC CORPORATION RUTAN & TUCKER, LLP
4 MARCONI 611 ANTON BLVD.
IRVINE, CA 92618 COSTA MESA, CA 92626
(949) 707-4832 (714) 641-5100
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered. . . . . . . . . registered(1) per share(2) price(2) registration fee
COMMON STOCK, $0.001 PAR VALUE,
PER SHARE 400,000 (1) $4.18 $1,672,000 $211.84
- ---------------------
(1) Registrant is registering an aggregate of 400,000 shares of its common
stock that may become issuable upon exercise of options to be granted under its
2003 Stock Option Plan. In the event of a stock split, stock dividend or similar
transaction involving common stock of Registrant, in order to prevent dilution,
the number of shares registered shall be automatically increased to cover the
additional shares in accordance with Rule 416(a) of the Securities Act of 1933.
(2) Calculated pursuant to Rules 457(c) and 457(h) on the basis of the
average of the closing bid and asked prices per share as reported for such
securities on the OTC Bulletin Board on June 14, 2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1 and 2
of Form S-8, will be sent or given to employees in accordance with Form S-8 and
Rule 428(b)(1) of the Securities Act of 1933. Registrant will furnish without
charge to each employee to whom information is required to be delivered, upon
written or oral request, a copy of each document incorporated by reference in
Item 3 of Part II of this Registration Statement, which documents are
incorporated by reference in the Section 10(a) prospectus, and any other
documents required to be delivered to them under Rule 428(b) of the Securities
Act of 1933. Requests should be directed to I/OMagic Corporation, 4 Marconi,
Irvine, California 92618, Attention: General Counsel. The Registrant's telephone
number is (949) 707-4800.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company under the Securities Exchange
Act of 1934 are incorporated herein by reference:
(a) Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 2004 filed with the Commission on May 18, 2004 (File No.
000-27267).
(b) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2003, filed with the Commission on April 14, 2004 (File No.
000-27267).
(c) Registrant's Current Report on Form 8-K for January 27, 2004, filed with
the Commission on January 27, 2004 (File No. 000-27267).
(d) Registrant's Definitive Proxy Statement filed with the Commission on
November 24, 2003, in connection with Registrant's Annual Meeting of
Stockholders held on December 18, 2003.
(e) The description of Registrant's common stock contained in the
Registration Statement on Form 10-SB filed pursuant to Section 12 of the
Securities Exchange Act of 1934 on September 8, 1999, including any amendment or
report filed for the purposes of updating such information.
(f) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by the
financial statements contained in the Form 10-K referred to in (a) above.
All reports and other documents subsequently filed by Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold, or which deregisters all securities
remaining unsold, shall be deemed incorporated by reference into this
Registration Statement and shall be a part hereof from the date of filing such
documents.
For purposes of this Registration Statement, any document or any statement
contained in a document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded to the extent that a
subsequently filed document or a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated herein
by reference modifies or supersedes such document or such statement in such
document. Any statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Registration Statement.
Notwithstanding the above, information that is "furnished to" the
Commission shall not be deemed "filed with" the Commission and shall not be
deemed incorporated by reference into 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 Registrant's amended and restated articles of incorporation and amended
and restated bylaws provide that it shall, to the fullest extent permitted by
Nevada Revised Statutes section 78.751, indemnify all persons that it has power
to indemnify under that section against all expenses, liabilities or other
matters covered by that section, and that this indemnification is not exclusive
of any other indemnification rights to which those persons may be entitled.
Indemnification under this provision is as to action both in an official
capacity and in another capacity while holding office. Indemnification continues
as to a person who has ceased to be a director, officer, employee or agent and
extends to the benefit of the heirs, executors and administrators of such a
person. Section 78.751 of the Nevada Revised Statutes provides that the expenses
of the Registrant's officers and directors incurred in defending a civil or
criminal action, suit or proceeding must be paid by the Registrant as they are
incurred and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of the director or
officer to repay the amount if it is ultimately determined by a court of
competent jurisdiction that he is not entitled to indemnification.
The Registrant's amended and restated articles of incorporation also
provide that a director of the Registrant shall not be liable to the Registrant
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent exemption from limitation or liability is not
permitted under the Nevada Revised Statutes. Any amendment, modification or
repeal of this provision by the Registrant's stockholders would not adversely
affect any right or protection of a director of the Registrant in respect of any
act or omission occurring prior to the time of such amendment, modification or
repeal. The Registrant's amended and restated articles of incorporation do not,
however, eliminate or limit a director's liability for any act or omission
involving intentional misconduct, fraud or a knowing violation of law, or the
payment of unlawful distributions to stockholders. Furthermore, they do not
limit liability for claims against a director arising out of the director's
responsibilities under the federal securities laws or any other law. However,
the Registrant has purchased directors and officers liability insurance to
protect its directors and executive officers against liability under
circumstances specified in the policy.
Section 2115 of the California General Corporation Law, or the California
Code, provides that corporations such as the Registrant that are incorporated in
jurisdictions other than California and that meet various tests are subject to
several provisions of the California Code, to the exclusion of the law of the
jurisdiction in which the corporation is incorporated. The Registrant believes
that as of December 31, 2003, it met the tests contained in Section 2115.
Consequently, the Registrant is subject to, among other provisions of the
California Code, Section 317 which governs indemnification of directors,
officers and others. Section 317 generally eliminates the personal liability of
a director for monetary damages in an action brought by or in the right of the
Registrant for breach of a director's duties to the Registrant or its
stockholders except for liability:
-for acts or omissions that involve intentional misconduct or a knowing and
culpable violation of law;
-for acts or omissions that a director believes to be contrary to the best
interests of the Registrant or its stockholders or that involve the absence of
good faith on the part of the director;
-for any transaction for which a director derived an improper personal
benefit;
-for acts or omissions that show a reckless disregard for the director's
duty to the Registrant or its stockholders in circumstances in which the
director was aware, or should have been aware, in the ordinary course of
performing a director's duties, of a risk of serious injury to the Registrant or
its stockholders;
-for acts or omissions that constitute an unexcused pattern of inattention
that amounts to an abdication of the director's duty to the Registrant or its
stockholders; and
-for engaging in transactions described in the California Code or
California case law which result in liability, or approving the same kinds of
transactions.
To the extent indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant under 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 Securities Act of
1933, 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 of whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
The inclusion of the above provisions in the Registrant's amended and
restated articles of incorporation and amended and restated bylaws may have the
effect of reducing the likelihood of derivative litigation against the
Registrant's directors and may discourage or deter stockholders or management
from bringing a lawsuit against the Registrant's directors for breach of their
duty of care, even though such an action, if successful, might otherwise have
benefited the Registrant and its stockholders. At present, there is no
litigation or proceeding pending involving a director of the Registrant as to
which indemnification is being sought, nor is the Registrant aware of any
threatened litigation that may result in claims for indemnification by any of
the Registrant's directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Name
- ------ ----
4.1 I/OMagic Corporation 2003 Stock Option Plan*
5.1 Opinion of Rutan & Tucker, LLP
23.1 Consent of Rutan & Tucker, LLP (included in Exhibit 5.1 to this
Registration Statement)
23.2 Consent of Singer Lewak Greenbaum & Goldstein LLP
24.1 Power of Attorney (included on signature page to this Registration
Statement)
______________________
* Incorporated by reference from Registrant's Definitive Proxy Statement,
filed with the Securities and Exchange Commission on November 24, 2003 (File No.
000-27267).
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 (except that paragraphs
(i) and (ii) below shall not apply if the information required by paragraphs (i)
and (ii) below is contained in periodic reports filed by the Registrant
with the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in 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 which, individually
or together, represent a fundamental change in the information set forth in this
Registration Statement; and
(iii) To include any additional or changed material information with
respect to the plan of distribution.
(2) For determining liability under the Securities Act of 1933, to treat
each post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) To file a post-effective amendment to remove from registration any of
the securities that remain unsold at the end 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 (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 the 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 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 Securities Act
of 1933 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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 Irvine, State of California, on June 17, 2004.
I/OMAGIC CORPORATION,
a Nevada corporation
By: /s/ TONY SHAHBAZ
----------------
Tony Shahbaz,
President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Tony Shahbaz his attorney-in-fact and
agent, with the power of substitution and resubstitution, for him and in his
name, place or stead, in any and all capacities, to sign any amendment to this
Registration Statement on Form S-8, and to file such amendments, together with
exhibits and other documents in connection therewith, with the Securities and
Exchange Commission, granting to such attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as he might or could do in
person, and ratifying and confirming all that the attorney-in-fact and agent, or
his substitute or 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 by the following persons in the capacities and on the
date indicated.
Signature Title Date
- --------- ----- ----
/s/ TONY SHAHBAZ Chief Executive Officer, President, June 17, 2004
- ---------------- Secretary and Director
Tony Shahbaz (Principal Executive Officer)
/s/ STEVE GILLINGS Chief Financial Officer June 17, 2004
- ------------------ (Principal Accounting and Financial
Steve Gillings Officer)
/s/ ANTHONY ANDREWS Director June 17, 2004
- -------------------
Anthony Andrews
/s/ DANIEL HOU Director June 17, 2004
- --------------
Daniel Hou
/s/ DANIEL YAO Director June 17, 2004
- --------------
Daniel Yao
/s/ STEEL SU Director June 17, 2004
- ------------
Steel Su
/s/ YOUNG-HYUN SHIN Director June 17, 2004
- -------------------
Young Hyun Shin
INDEX TO EXHIBITS
Exhibit
Number Name
- ------ ----
5.1 Opinion of Rutan & Tucker, LLP
23.1 Consent of Rutan & Tucker, LLP (included in Exhibit 5.1 to this
Registration Statement)
23.2 Consent of Singer Lewak Greenbaum & Goldstein LLP
24.1 Power of Attorney (included on signature page to this Registration
Statement)