As filed with the Securities and Exchange Commission on November 1, 2000
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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FUSION FUND, INC.
(Exact name of registrant as specified in its charter)
Delaware 65-0648808
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
1 World Trade Center, Suite 7967
New York, New York 10048
(Address of principal executive offices) (Zip Code)
212-775-7020
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CONSULTING AGREEMENT
WITH G.A.R., INC. DATED OCTOBER 6, 2000
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Steven Angel
Secretary
1 World Trade Center, Suite 7967
New York, New York 10048
(Name and address of agent for service)
(212) 775-7020
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share(2) Price(2) Fee
---------- ----------- ------------ ---------- -----------
<S> <C> <C> <C> <C>
Common Stock 400,000 $1.75 $700,000 $184.80
$0.01 par value shares
</TABLE>
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Consulting Agreement
between Fusion Fund, Inc. and G.A.R., Inc., dated October 6, 2000
("Consulting Agreement"), by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of
the outstanding shares of Common Stock of Fusion Fund, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(c) of
the Securities Act of 1933, as amended, on the basis of the average of
the high and low selling prices per share of Common Stock of Fusion
Fund, Inc. (FUFU) on November 1, 2000, as reported on the OTC
Electronic Bulletin Board.
Exhibit Index on Page 5
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in Item 1 will be sent
or given to individual consultants under the Amendment to Consulting Agreement
between G.A.R., Inc., and Fusion Fund, Inc, dated October 6, 2000 (the
"Consulting Agreement").
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in item 2 will be sent
of given to the individual consultants performing consulting services pursuant
to the Consulting Agreement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration
Statement the documents listed below. In addition, all documents subsequently
filed 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 securities offered have been sold or which
deregisters 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:
o Reference is made to the Registrant's annual report on Form
10-KSB, as filed with the SEC on May 15, 2000, which is hereby
incorporated by reference.
o Reference is made to the Registrant's quarterly reports on
Form 10-QSB, as filed with the SEC on June 14, 2000, and
September 14, 2000, respectively, which are hereby
incorporated by reference.
Item 4. Description of Securities.
Class A common stock, $0.01 par value per share.
Item 5. Interests of Names Experts and Counsel.
Certain legal matters in connection with this registration statement will
be passed upon for Fusion Fund, Inc. by Sichenzia, Ross & Friedman LLP, New
York, New York. Sichenzia, Ross & Friedman LLP owns 35,000 shares of lass A
common stock of the registrant.
Item 6. Indemnification of Directors and Officers.
The Registrant's Certificate of Incorporation includes certain provisions
permitted pursuant to the Delaware General Corporation Law ("Delaware Law")
whereby officers and directors of the Registrant are to be indemnified against
certain liabilities. The Certificate of Incorporation also limits to the fullest
extent permitted by Delaware Law a director's liability to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
including gross negligence, except liability for (i) breach of the director's
duty of loyalty, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law, (iii) the unlawful
payment of a dividend or unlawful stock purchase or redemption, and (iv) any
transaction from which the director derives an improper personal benefit.
Delaware Law does not permit a corporation to eliminate a director's duty of
care and this provision of the Registrant's Certificate of Incorporation has no
effect on the availability of equitable remedies, such as injunction or
rescission, based upon a director's beach of the duty of care.
<PAGE>
Article SEVENTH of the Registrant's Certificate of Incorporation, as
amended (the "Certificate of Incorporation"), provides that no director of the
Registrant shall be personally liable for any monetary damages for any breach of
fiduciary duty as a director, except to the extent that the Delaware General
Corporation Law prohibits the elimination or limitation of liability of
directors for breach of fiduciary duty.
Article EIGHTH of the Certificate of Incorporation provides that a director
or officer of the Registrant shall be indemnified by the Registrant against (a)
all expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement incurred in connection with any litigation or other legal proceeding
(other than an action by or in the right of the Registrant) brought against him
or her by virtue of his or her position as a director or officer of the
Registrant if he or she 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 Registrant, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful and (b) all expenses (including
attorneys' fees) and amounts paid in settlement incurred in connection with any
action by or in the right of the Registrant brought against him or her by virtue
of his or her position as a director or officer of the Registrant if he or she
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 Registrant, except that no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the Registrant, unless a court
determines that, despite such adjudication but in view of all of the
circumstances, he or she is entitled to indemnification of such expenses.
Notwithstanding the foregoing, to the extent that a director or officer has been
successful, on the merits or otherwise, including the dismissal of an action
without prejudice, he or she is required to be indemnified by the Registrant
against all expenses (including attorneys' fees) incurred in connection
therewith. Expenses shall be advanced to a director or officer at his or her
request, provided that he or she undertakes to repay the amount advanced if it
is ultimately determined that he or she is not entitled to indemnification for
such expenses.
Indemnification is required to be made unless the Registrant determines
that the applicable standard of conduct required for indemnification has not
been met. In the event of a determination by the Registrant that the director or
officer did not meet the applicable standard of conduct required for
indemnification, or if the Registrant fails to make an indemnification payment
within sixty days after such payment is claimed by such person, such person is
permitted to petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give the Registrant
notice of the action for which indemnity is sought and the Registrant has the
right to participate in such action or assume the defense thereof.
Article EIGHTH of the Certificate of Incorporation further provides that
the indemnification provided therein is not exclusive, and provides that in the
event that the Delaware General Corporation Law is amended to expand the
indemnification permitted to directors or officers the Registrant must indemnify
those persons to the fullest extent permitted by such law as so amended.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he or she is or is threatened
to be made a party by reason of such position, if such person shall have 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, in any criminal
proceeding, if such person had no reasonable cause to believe his or her conduct
was unlawful; provided that, in the case of actions brought by or in the right
of the corporation, no indemnification shall be made with respect to any matter
as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
The Registrant maintains a directors' and officers' insurance policy that
covers certain liabilities of directors and officers of the Registrant. The
Registrant maintains a general liability insurance policy that covers certain
liabilities of directors and officers of the Registrant arising out of claims
based on acts or omissions in their capacities as directors or officers.
<PAGE>
Item 7. Exemption From Registration Claimed.
The shares of class A common stock, $0.01 par value per share, were issued
to G.A.R., Inc. pursuant to the Consulting Agreement as a result of an isolated
third party transaction under Section 4(2) of the Securities Act of 1933, as
amended.
Item 8. Exhibits.
EXHIBIT NUMBER EXHIBIT
<TABLE>
<CAPTION>
<S> <C>
4.1 Amendment to Consulting Agreement between G.A.R., Inc., and Fusion Fund, Inc, dated October 6, 2000.
5.1 Opinion of Sichenzia Ross & Friedman, LLP.
23.1 Consent of Wolinetz, Gottlieb & Lafazan P.C.
23.2 Consent of Sichenzia Ross & Friedman, LLP is contained in Exhibit 5.1.
24.1 Power of Attorney (included in the Signature Page).
</TABLE>
Item 9. Undertakings.
(a) 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:
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
Securities Act of 1933, 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 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 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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
SEC 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 City of New York, State of New York, on this 1st day of
November, 2000.
FUSION FUND, INC.
By: /s/ STEVEN ANGEL
Steven Angel, Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Fusion Fund, Inc., a
Delaware corporation, do hereby constitute and appoint Steven Angel the lawful
attorney in-fact and agent with full power and authority to do any and all acts
and things and to execute any and all instruments which said attorney and agent,
determine may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules or
regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, and to any and all
instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each of the
undersigned hereby ratifies and confirms that said attorney and agent, shall do
or cause to be done by virtue thereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ ADAM GOLDBERG President, Director, Chairman, November 1, 2000
-------------------------
Adam Goldberg
/s/ STEVEN ANGEL Secretary, Vice President November 1, 2000
------------------------- and Director
Steven Angel
/s/ SHERRI SHAPIRO Director November 1, 2000
-------------------------
Sherri Shapiro
</TABLE>
