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As filed with the Securities and Exchange Commission on February 14, 1997
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MODACAD, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 95-4145930
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1954 COTNER AVENUE 90025
LOS ANGELES, CALIFORNIA (Zip Code)
(Address of Principal Executive Offices)
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1995 STOCK OPTION PLAN
(Full title of the plan)
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JOYCE FREEDMAN
PRESIDENT
MODACAD, INC.
1954 COTNER AVENUE
LOS ANGELES, CA 90025
(310) 312-9826
(Name, address and telephone number of agent for service)
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Copies to:
JOHN A. ST. CLAIR, ESQ.
ROBERT R. JESUELE, ESQ.
COUDERT BROTHERS
1055 WEST SEVENTH STREET, 20TH FLOOR
LOS ANGELES, CALIFORNIA 90017
(213) 688-9088
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
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<TABLE>
<CAPTION>
======================================================================================================
CALCULATION OF REGISTRATION FEE
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Proposed
Title of Amount Proposed Maximum
Securities of Shares Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock 300,000(1) $7.25(2) $2,175,000(2) $660
no par value
- ------------------------------------------------------------------------------------------------------
</TABLE>
(1) Represents shares of Common Stock ("Common Stock") of ModaCAD,
Inc. (the "Registrant") issuable upon the exercise of options
granted or to be granted pursuant to the Registrant's 1995
Stock Option Plan.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of
determining the amount of the registration fee based on the
average of the high and low reported sale prices of a share of
the Registrant's Common Stock as reported by The Nasdaq
SmallCap Market on February 10, 1997.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEMS 1 AND 2.
The document(s) containing the information specified in Items 1 and 2
of Part I of Form S-8 will be sent or given to plan participants as specified
in Rule 428(b)(1) and, in accordance with the instructions to Part I, are not
filed with the Commission as part of this Registration Statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference in this
Registration Statement:
Item 3(a)
The Registrant's Prospectus filed with the Commission pursuant
to Rule 424(b) pursuant to the effectiveness of the Registrant's Amendment No.
2 to Form SB-2 (Registration No. 333-1166-LA), filed with the Commission on
March 27, 1996.
Item 3(b)
The Registrant's Quarterly Report on Form 10-QSB for the
fiscal quarter ended March 31, 1996.
The Registrant's Quarterly Report on Form 10-QSB for the
fiscal quarter ended June 30, 1996.
The Registrant's Quarterly Report on Form 10-QSB for the
fiscal quarter ended September 30, 1996.
Item 3(c)
Item 1 of the Registrant's Registration Statement on Form 8-A,
filed with the Commission on March 28, 1996 pursuant to Section 12 of the
Securities Exchange Act of 1934.
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,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters all securities
offered hereunder 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 such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 317 of the California Corporations Code provides that a
corporation may indemnify corporate "agents" (including directors, officers and
employees of the corporation) against expenses, judgments, fines, settlements
and other amounts actually and reasonably incurred in connection with defending
non-derivative actions if such person acted in good faith and in a manner such
person reasonably believed to be in the best interests of the corporation and,
in the case of a criminal proceeding, had no reasonable cause to believe the
conduct of such person was unlawful, and against expenses actually and
reasonably incurred in connection with defending derivative actions if such
person acted in good faith and in a manner such person believed to be in the
best interests of the corporation and its shareholders. Indemnification is
obligatory to the extent that an agent of a corporation has been successful on
the merits in defense of any such proceeding against such agent, but otherwise
may be made only upon a determination in each instance by a majority vote of a
quorum of the Board of Directors (other than directors involved in such
proceeding), by independent legal counsel if such a quorum of directors is not
obtainable, by the shareholders (other than shareholders to be indemnified), or
by the court, that indemnification is proper because the agent has met the
applicable statutory standards of conduct. Corporations may also advance
expenses incurred in defending proceedings against corporate agents, upon
receipt of an undertaking that the agent will reimburse the corporation unless
it is ultimately determined that the agent is entitled to be indemnified
against expenses reasonably incurred.
The indemnification provided by Section 317 of the California
Corporations Code is not deemed to be exclusive of any other rights to which
agents of the Registrant seeking indemnification may be entitled under any
bylaw, agreement, vote of shareholders or disinterested directors, both as to
action in an official capacity and as to action in another capacity while
holding such office, to the extent such additional rights are authorized in the
articles of the corporation. Article IV of the Registrant's Amended and
Restated Articles of Incorporation provides that the liability of the directors
of the Registrant for monetary damages shall be eliminated to the fullest
extent permissible under California law. Article V of the Registrant's Amended
and Restated Articles of Incorporation authorizes the Registrant to provide for
indemnification of its agents for breach of duty to the Registrant and its
shareholders, through bylaw provisions or through agreements with such agents,
or both, in excess of the indemnification otherwise permitted by Section 317,
subject to the limits on such excess indemnification set forth in Section 204
of the California General Corporation Law.
Section 5.7 of the Registrant's bylaws provides that the Registrant
will indemnify each of its agents against expenses, judgments, fines,
settlements or other amounts, actually and reasonably incurred by such person
by reason of such person having been made or threatened to be made a party to a
proceeding to the fullest extent permissible by the provisions of Section 317
of the California General Corporation Law and the Registrant will advance the
expenses reasonably expected to be incurred by such agent upon receipt of an
undertaking that the agent will reimburse the Registrant unless it is
ultimately determined that the agent is entitled to be indemnified against
expenses reasonably incurred.
The Registrant has obtained directors and officers insurance with a
maximum coverage of $2 million.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
Number
4.1 1995 Stock Option Plan(1)
5.1 Opinion of Coudert Brothers
2
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23.1 Consent of Singer Lewak Greenbaum & Goldstein LLP
23.2 Consent of Coudert Brothers (included in Exhibit 5.1)
24.1 Power of Attorney (see page 5 of this Registration Statement)
__________________
(1) Incorporated by reference to the Registrant's Registration Statement
on Form SB-2 (Registration No. 333-1166-LA) as filed with the
Commission on February 7, 1996.
ITEM 9. UNDERTAKINGS.
The Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities,
a post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933 (the "Securities Act");
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental
change in information in this Registration Statement;
and 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 the
volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) Include any additional or changed material
information on the plan of distribution;
Provided, however, That paragraphs (1)(i) and (1)(ii) do not
apply if 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) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each 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.
(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.
Insofar as indemnification for liabilities arising under the
Securities Act 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 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
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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.
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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 Los Angeles, State of California, on February
11, 1997.
MODACAD, INC.
By: /s/ Joyce Freedman
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Joyce Freedman
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Joyce Freedman and Lee Freedman,
or either of them, his or her attorneys-in-fact and agents, each with full
power of substitution for him or her and in his or her name, place and stead,
in any and all capacities, to sign any or all amendments to this Registration
Statement, and to file the same with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto each of said attorneys-in-fact and agents full power and authority to do
so and perform each and every act and thing requisite and necessary to be done
in connection with this Registration Statement, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that either of said attorneys-in-fact and agents, or his or her
substitute or substitutes, may lawfully 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 DATES INDICATED.
Signature Title Date
--------- ----- ----
/s/ Joyce Freedman President and Director February 11 , 1997
- ------------------------- (Principal Executive Officer)
Joyce Freedman
/s/ Lee Freedman Vice President, Finance, February 11 , 1997
- ------------------------- Chief Financial Officer and
Lee Freedman Director (Principal Financial
and Accounting Officer)
/s/ Maurizion Vecchione Executive Vice President and February 11, 1997
- ------------------------ Director
Maurizio Vecchione
/s/ Andrea Vecchione Secretary and Director February 12, 1997
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Andrea Vecchione
5
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/s/ F. Stephen Wyle Director February 11, 1997
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F. Stephen Wyle
/s/ Peter Frank Director February 11, 1997
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Peter Frank
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EXHIBIT INDEX
Sequentially
Numbered
Number Description Page
- ------ ----------- ------------
4.1 1995 Stock Option Plan . . . . . . . . . . . . . . . . . . (1)
5.1 Opinion of Coudert Brothers . . . . . . . . . . . . . . .
23.1 Consent of Singer Lewak Greenbaum & Goldstein LLP . . . .
(1) Incorporated by reference to the Registrant's Registration Statement
on Form SB-2 (Registration No. 333-1166-LA), as filed with the
Commission on February 7, 1996.
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EXHIBIT 5.1
February 14, 1997
ModaCAD, Inc.
1954 Cotner Avenue
Los Angeles, California 90025
Re: ModaCAD, Inc. - Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as securities counsel for ModaCAD, Inc. (the "Company")
in connection with the preparation of a registration statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933 to be filed with the
Securities and Exchange Commission (the "Commission") on February 14, 1997, in
connection with the registration of 300,000 shares of Common Stock, without par
value (the "Shares"), issuable upon the exercise of options granted or to be
granted pursuant to the Company's 1995 Stock Option Plan (the "Plan").
In connection with the preparation of the Registration Statement and
the proposed issuance and sale of the Shares in accordance with the Plan and
the Form S-8 prospectus to be delivered to participants in the Plan, we have
made certain legal and factual examinations and inquiries and examined, among
other things, such documents, records, instruments, agreements, certificates
and matters as we have considered appropriate and necessary for the rendering
of this opinion. We have assumed for the purpose of this opinion the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies, and the
genuineness of the signatures thereon. As to various questions of fact
material to this opinion, we have, when relevant facts were not independently
established, relied, to the extent deemed proper by us, upon certificates and
statements of officers and representatives of the Company.
Based on the foregoing and in reliance thereon, it is our opinion that
the Shares have been duly authorized and, after the Registration Statement
becomes effective and after any post-effective amendment required by law is
duly completed, filed and becomes effective (such Registration Statement as it
finally becomes effective or, if required to be post-effectively amended, then
as it is so amended, is referred to hereinafter as the "Final Registration
Statement"), and when
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ModaCAD, Inc.
February 14, 1997
Page 2
the applicable provisions of "Blue Sky" and other state securities laws shall
have been complied with, and when the Shares are issued and sold in accordance
with the Plan and the Form S-8 prospectus prepared in connection with the Final
Registration Statement, the Shares will be legally issued, fully paid and
nonassessable.
We hereby consent to the inclusion of our opinion as Exhibit 5.1 to the
Registration Statement and further consent to the references to this firm in
the Registration Statement. In giving this consent, we do not hereby admit
that we are in the category of persons whose consent is required under Section
7 of the Securities Act of 1933 or the rules and regulations of the Commission
thereunder.
This opinion is rendered solely for your benefit in accordance with the
subject transaction and is not to be otherwise used, circulated, quoted or
referred to without our prior written consent. We are opining herein as to the
effect on the subject transaction only of United States federal law and the
internal (and not the conflict of law) laws of the State of California, and we
assume no responsibility as to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction.
Very truly yours,
COUDERT BROTHERS
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated January 26, 1996 accompanying the financial
statements of ModaCAD, Inc. included in Amendment No. 2 to Form SB-2 filed with
the Securities and Exchange Commission on March 27, 1996. We consent to the
incorporation by reference of said report in this Registration Statement on
Form S-8.
SINGER LEWAK GREENBAUM & GOLDSTEIN LLP
Los Angeles, California
February 12, 1997
