As filed with the Securities and Exchange Commission on November __, 2000
Registration No. _____
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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under the Securities Act of 1933
FRISBY TECHNOLOGIES, INC.
(exact name of Registrant as specified in its charter)
Delaware 62-1411534
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
3195 Centre Park Blvd.,Winston-Salem, NC 27107
(Address of principal executive offices)
Frisby Technologies, Inc. - 2000 Employee Stock Purchase Plan
(Full title of the plan)
Gregory S. Frisby
Chief Executive Officer
Frisby Technologies, Inc.
3195 Centre Park Blvd.
Winston-Salem, NC 27107
(336) 784-7754
Copy to:
Norman M. Friedland, Esq.
Ruskin, Moscou, Evans & Faltischek, P.C.
170 Old Country Road
Mineola, New York 11501
(516) 663-6510
(516) 663-6641 (facsimile)
<PAGE>
VI. CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
---------------------------- ------------------------- ------------------------ ------------------------- ------------------------
Number of shares Proposed maximum Proposed maximum
Title of each class to be Offering price aggregate offering Amount of
securities to be registered registered per share (1) price (1) Registration fee (1)
---------------------------- ------------------------- ------------------------ ------------------------- ------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, $.001 par 200,000 $3.72 $744,000.00 $196.42
---------------------------- ------------------------- ------------------------ ------------------------- ------------------------
<FN>
(1) Estimated solely for the purposes of calculating the registration fee and
based on the average of the high and low prices for the Company's Common
Stock as quoted on the Nasdaq SmallCap Market and the Boston Stock Exchange
("BSE") on October 31, 2000.
(2) Pursuant to Rule 416, there are also being registered additional shares of
Common Stock as may become issuable pursuant to the anti-dilution
provisions of the plans being registered.
</FN>
</TABLE>
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
In accordance with Rule 428 under the Securities Act of 1933, as amended
(the "Act"), and the Note to Part I of Form S-8, the information required by
this item has been omitted from this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
In accordance with Rule 428 under the Act and the Note to Part I of Form
S-8, the information required by this item has been omitted from this
Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the Securities
and Exchange Commission (the "Commission") are hereby incorporated by reference
in this Registration Statement:
(a) The Company's Registration Statement on Form SB-2 (No. 333-45121) filed
with the Commission on March 30, 1998;
(b) The Company's Registration Statement on Form S-3/A (No. 333-47010) filed
with the Commission on October 31, 2000;
(c) The Company's Quarterly Report on Form 10-QSB for the quarter ended March
31, 1998;
(d) The Company's Quarterly Report on Form 10-QSB for the quarter ended June
30, 1998;
(e) The Company's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1998;
(f) The Company's Quarterly Report on Form 10-QSB for the quarter ended March
31, 1999;
(g) The Company's Quarterly Report on Form 10-QSB for the quarter ended June
30, 1999;
(h) The Company's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1999;
(i) The Company's Quarterly Report on Form 10-QSB for the quarter ended March
31, 2000;
(j) The Company's Quarterly Report on Form 10-QSB for the quarter ended June
30, 2000;
(k) The Company's Annual Report on Form 10-KSB for the year ended December 31,
1998;
(l) The Company's Annual Report on Form 10-KSB for the year ended December 31,
1999; and
(m) The description of the Company's Common Stock contained in its Registration
Statement on Form 8-A (No. 001-14005) filed with the Commission on March
31, 1998.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which removes from registration all securities then remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of filing of 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
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
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
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") provides for the indemnification of officers and directors under certain
circumstances against expenses incurred in successfully defending against a
claim and authorizes Delaware corporations to indemnify their officers and
directors under certain circumstances against expenses and liabilities incurred
in legal proceedings involving such persons because of their being or having
been an officer or director.
Section 102(b) of the DGCL permits a corporation, by so providing in its
certificate of incorporation, to eliminate or limit director's liability to the
corporation and its stockholders for monetary damages arising out of certain
alleged breaches of their fiduciary duty. Section 102(b)(7) of the DGCL provides
that no such limitation of liability may affect a director's liability with
respect to any of the following: (i) breaches of the director's duty of loyalty
to the corporation or its stockholders; (ii) acts or omissions not made in good
faith or which involve intentional misconduct of knowing violations of law;
(iii) liability for dividends paid or stock repurchased or redeemed in violation
of the DGCL; or (iv) any transaction from which the director derived an improper
personal benefit. Section 102(b)(7) does not authorize any limitation on the
ability of the corporation or its stockholders to obtain injunctive relief,
specific performance or other equitable relief against directors.
Article Tenth of the Company's Certificate of Incorporation provides that a
director shall not be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except: (i) for any
breach of the duty of loyalty; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or knowing violations of law; (iii) for
liability under Section 174 of the DGCL (relating to certain unlawful dividends,
stock repurchases or stock redemptions); or (iv) for any transaction from which
the director derived any improper personal benefit. The effect of this provision
in the Certificate is to eliminate the rights of the Company and its
stockholders (through stockholders' derivative suits on behalf of the Company)
to recover monetary damages against a director for breach of the fiduciary duty
of care as a director (including breaches resulting from negligent or grossly
negligent behavior) except in certain limited situations. This provision does
not limit or eliminate the rights of the Company or any stockholder to seek
non-monetary relief such as an injunction or rescission in the event of a breach
of a director's duty of care. These provisions will not alter the liability of
directors under federal securities laws.
Article Eleventh of the Company's Certificate of Incorporation provides
that all persons who the Company is empowered to indemnify pursuant to the
provisions of Section 145 of the DGCL (or any similar provision or provisions of
applicable law at the time in effect), shall be indemnified by the Company to
the full extent permitted thereby. The foregoing right of indemnification shall
not be deemed to be exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
The Company's By-Laws provide that the Company shall indemnify each
director and such of the Company's officers, employees and agents as the Board
of Directors shall determine from time to time to the fullest extent provided by
the laws of the State of Delaware.
The Company currently maintains directors' and officers' liability
insurance coverage for all directors and officers.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the foregoing provision or otherwise, the Company has been advised that in
the opinion of the Commission, such indemnification is against public policy as
expressed in the Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
4.1 Frisby Technologies, Inc. - 2000 Employee Stock Purchase Plan
5.1 Opinion of Ruskin, Moscou, Evans & Faltischek, P.C.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Ruskin, Moscou, Evans & Faltischek, P.C. (contained in Exhibit
5.1 hereof)
24.1 Power of Attorney (contained in signature page hereof)
ITEM 9. UNDERTAKINGS
(a) The undersigned Company hereby undertakes:
(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
material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under the 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.
(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 Company hereby undertakes that, for purposes of determining
any liability under the Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange 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) The undersigned Company hereby undertakes 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 Exchange
Act; 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.
(d) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification is against
such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the
Company 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 Company 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Act, the Company 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
Winston-Salem, state of North Carolina on the 22nd day of November, 2000.
FRISBY TECHNOLOGIES, INC.
By:/s/ Gregory S. Frisby
---------------------
Gregory S. Frisby, Chief Executive Officer
In accordance with the requirements of the Act, this Registration Statement
was signed by the following persons in the capacities and on the dates
indicated. Each person whose signature appears below hereby authorized each of
Gregory S. Frisby with full power of substitution to execute in the name of such
person and to file any amendment or post-effective amendment to this
Registration Statement making such changes in this Registration Statement as the
Company deems appropriate and appoints each of Gregory S. Frisby with full power
of substitution, attorney-in-fact to sign and to file any amendment and
post-effective amendment to this Registration Statement.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gregory S. Frisby Chairman of the Board of Directors and Chief November 22, 2000
--------------------- Executive Officer
Gregory S. Frisby
/s/ Duncan R. Russell President, Chief Operating Officer and November 22, 2000
---------------------- Director
Duncan R. Russell
/s/ Jeffry D. Frisby Director November 22, 2000
----------------------
Jeffry D. Frisby
Director November 22, 2000
----------------------
Pietro A. Motta
Director November 22, 2000
----------------------
Domenico De Sole
/s/ Robert Grayson Director November 22, 2000
----------------------
Robert Grayson
</TABLE>
<PAGE>
Index to Exhibits
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Exhibit Number Description
-------------- -----------
4.1 Frisby Technologies, Inc. - 2000 Employee Stock Purchase Plan
5.1 Opinion of Ruskin, Moscou, Evans & Faltischek, P.C.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Ruskin, Moscou, Evans & Faltischek, P.C.
(contained in Exhibit 5.1 hereof)
25.1 Power of Attorney (contained in signature page hereof)
