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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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IMAGICTV INC.
(Exact name of registrant as specified in its charter)
Canada Not Applicable
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
One Brunswick Square, 14/th/ Floor
Saint John, NB E2L 3Y2, Canada
(Address of Principal Executive Offices) (Zip Code)
IMAGICTV INC. 1998 EMPLOYEE SHARE OPTION PLAN
IMAGICTV INC. 2000 SHARE OPTION PLAN
(Full title of the plans)
Marjean Henderson
c/o ImagicTV (US), Inc.
1200 17/th/ Street, Suite 1000
Denver, CO 80202
(203) 623-1224
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Amount of
to be Registered Registered (1) Share Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Shares, without par value, under the 1998 3,021,607 shares $1.64 (2) $ 4,955,435 (2) $1,239
Employee Share Option Plan
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Common Shares, without par value, under the 2000 1,879,185 shares $5.18 (3) $ 9,734,178 (3) $2,434
Share Option Plan
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Total........................................ $3,673
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(1) Includes an indeterminate number of Common Shares that may be issuable by
reason of stock splits, stock dividends or similar transactions in
accordance with Rule 416 of the Securities Act of 1933, as amended (the
"Securities Act"). Also includes an indeterminate number of additional
Common Shares that may become issuable as a result of terminated, expired
or surrendered options to purchase Common Shares or pursuant to the
antidilution provisions of the plans.
(2) Calculated under Rule 457(h) under the Securities Act based on the exercise
prices of outstanding options. The per share amount is the average
exercise price.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act. The estimate is
based upon the average of the high and low prices of the Common Shares as
reported on the Nasdaq National Market on January 11, 2001.
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PART I
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this
Registration Statement on Form S-8 will be sent or given to participants in the
ImagicTV Inc. 1998 Employee Share Option Plan and the ImagicTV Inc. 2000 Share
Option Plan as specified under Rule 428(b)(1) promulgated by the Securities and
Exchange Commission (the "SEC") under the Securities Act. These documents are
not required to be, and are not being, filed by ImagicTV Inc. (the "Company")
with the SEC either as part of this Registration Statement or as a prospectus or
prospectus supplement pursuant to Rule 424 promulgated by the SEC under the
Securities Act. These documents, together with the documents incorporated by
reference herein pursuant to Item 3 of Part II of this Registration Statement on
Form S-8, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
This Registration Statement incorporates herein by reference the following
documents which have been filed with the SEC by the Company as registrant: the
prospectus of the Company utilized in the United States filed with the SEC on
November 21, 2000 pursuant to Rule 424(b) of the Securities Act in connection
with the Company's registration statement on Form F-1 (File No. 333-48452).
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all of the Common
Shares offered have been sold or which deregisters all of such Common Shares
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.
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.
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Item 6. Indemnification of Directors and Officers
Under the Canada Business Corporations Act, the Company is permitted to
indemnify its directors and officers and former directors and officers against
costs and expenses, including amounts paid to settle an action or satisfy a
judgement in a civil, criminal or administrative action or proceeding to which
they are made parties because of their position as directors or officers,
including an action against the Company. To be entitled to indemnification
under this act, the director or officer must act honestly and in good faith with
a view to the best interests of the Company. In the case of a criminal or
administrative action or proceeding that is enforced by a monetary penalty, the
director or officer must have reasonable grounds for believing that his or her
conduct was lawful.
Under the Company's bylaws, the Company may indemnify its current and
former directors, as well as current and former officers, employees and agents,
to the fullest extent permitted by the Canada Business Corporations Act. The
bylaws authorize the Company to purchase and maintain insurance on behalf of its
current and past directors, officers, employees and agents against any liability
incurred by them in their duties. The Company believes that the provisions of
its bylaws are necessary to attract and retain qualified persons as directors
and officers.
The Company has purchased a liability insurance policy covering its
directors and officers with limits of C$6.0 million in the aggregate, subject to
a deductible in respect of corporate reimbursement of C$25,000 for each loss.
Generally, under this insurance, the Company is reimbursed under a corporate
indemnity provision for payments made on behalf of its directors and officers,
and individual directors and officers (or their heirs and legal representatives)
are reimbursed for losses arising during the performance of their duties for
which they are not indemnified by the Company.
Currently, there is no pending litigation or proceeding in which a current
or past director, officer or employee seeks indemnification. Furthermore, the
Company is not aware of any threatened litigation that may result in claims for
indemnification.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits
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Exhibit No. Description of Exhibit
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<S> <C>
4.1 ImagicTV Inc. 1998 Employee Share Option Plan (incorporated by reference to
Exhibit 10.1 to the Registration Statement on Form F-1 (Reg. No. 333-48452)).
4.2 ImagicTV Inc. 2000 Share Option Plan (incorporated by reference to Exhibit
10.3 to the Registration Statement on Form F-1 (Reg. No. 333-48452)).
5.1 Opinion of McCarthy Tetrault as to the legality of securities offered.
5.2 Opinion of Patterson Palmer Hunt Murphy as to the legality of securities offered.
23.1 Consent of McCarthy Tetrault (contained in its opinion filed as Exhibit 5.1).
23.2 Consent of KPMG LLP, Independent Auditors.
23.3 Consent of Patterson Palmer Hunt Murphy (contained in its opinion filed as
Exhibit 5.2).
24.1 Power of Attorney (included on the signature page of this Registration
Statement).
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Item 9. Undertakings
(a) The 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:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities 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 SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table
in this Registration Statement; and
(iii) 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;
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provided, however, that the undertakings set forth in paragraphs (i)
and (ii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities 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 Company undertakes that, for the purpose of determining any
liability under the Securities 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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of those securities
at that time will be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the provisions described in Item 6 of this
Registration Statement, or otherwise, the Company has been advised that, in the
opinion of the SEC, 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 Company of expenses incurred or paid by one of the directors, officers or
controlling persons of the Company in the successful defense of any action, suit
or proceeding) is asserted by a 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
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of the issue.
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SIGNATURES
Pursuant to the requirements of the Securities 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 St. John, Province of New Brunswick, Canada on January 17, 2001.
IMAGICTV INC.
/s/ Marjean Henderson
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By: Marjean Henderson
Title: Vice President and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Marcel LeBrun, Marjean Henderson and
Gerry Verner as his or her true and lawful attorney-in-fact and agent with full
powers of substitution and resubstitution, for him or her in his or her name,
place and stead, in any and all capacities, to sign any and all amendments to
this Registration Statement (including post-effective amendments), and any and
all additional registration statements pursuant to Instruction E to Form S-8 and
any and all documents in connection therewith, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the SEC,
granting unto said 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 in order to effectuate the same, as fully to all intents and
purposes as he or she might or could do in person, and hereby ratifies, approves
and confirms all that his or her said attorney-in-fact and agent, each acting
alone, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Marcel LeBrun President, Chief Executive
------------------- Officer and Director (principal January 17, 2001
Marcel LeBrun executive officer)
Vice President and Chief
Financial Officer
/s/ Marjean Henderson (principal financial and January 17, 2001
--------------------- accounting officer)
Marjean Henderson
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/s/ Peter Jollymore Chairman of the Board of January 17, 2001
----------------------------- Directors
Peter Jollymore
/s/ Joe Culp Director January 17, 2001
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Joe C. Culp
/s/ Carey Diamond Director January 17, 2001
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Carey Diamond
/s/ Dr. Terence E. Matthews Director January 17, 2001
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Dr. Terence E. Matthews
/s/ Michael J. McCloskey Director January 17, 2001
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Michael J. McCloskey
/s/ Robert Neal Director January 17, 2001
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Robert Neal
/s/ Gerald Pond Director January 17, 2001
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Gerald Pond
/s/ Paul Spruyt Director January 17, 2001
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Paul Spruyt
SIGNATURE OF AUTHORIZED UNITED STATES REPRESENTATIVE
Pursuant to the Securities Act of 1933, as amended, the undersigned
certifies that she is the duly authorized representative of the Company in the
United States and has signed this Registration Statement or amendment thereto,
on this 17th day of January 2001.
xx /s/ Marjean Henderson
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Marjean Henderson, a U.S. citizen
(Authorized representative of ImagicTV
Inc. in the United States)
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Index to Exhibits
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Exhibit No. Description of Exhibit
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<C> <S>
4.1 ImagicTV Inc. 1998 Employee Share Option Plan (incorporated by reference to
Exhibit 10.1 to the Registration Statement on Form F-1 (Reg. No. 333-48452)).
4.2 ImagicTV Inc. 2000 Share Option Plan (incorporated by reference to Exhibit
10.3 to the Registration Statement on Form F-1 (Reg. No. 333-48452)).
5.1 Opinion of McCarthy Tetrault as to the legality of securities offered.
5.2 Opinion of Patterson Palmer Hunt Murphy as to the legality of securities offered.
23.1 Consent of McCarthy Tetrault (contained in its opinion filed as Exhibit 5.1).
23.2 Consent of KPMG LLP, Independent Auditors.
23.3 Consent of Patterson Palmer Hunt Murphy (contained in its opinion filed as Exhibit 5.2).
24.1 Power of Attorney (included on the signature page of this Registration
Statement).
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