Registration No. 333-________
As filed with the Securities and Exchange Commission on November 30, 2000
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
IMPERIAL INDUSTRIES, INC.
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(Exact name of the Registrant as specified in its charter)
Delaware 65-0854631
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1259 N. W. 21st Street
Pompano Beach, Florida 33069
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(Address of Principal Executive Offices, including Zip Code)
1999 EMPLOYEE STOCK OPTION PLAN
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(Full title of the plan)
Howard L. Ehler, Jr.
Executive Vice President
1259 N. W. 21st Street
Pompano Beach, Florida 33069
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Name and address of agent for service)
(954) 917-7665
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Telephone number, including area code, of agent of service)
Copy to:
Bryan W. Bauman, Esq.
Wallace, Bauman, Legon, Fodiman, Ponce & Shannon, P. A.
1200 Brickell Avenue, Suite 1720
Miami, Florida 33131
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum Amount of
Title of Securities to Amount to offering price per aggregate offering registration
be registered registere share price fee
------------- --------- ----- ----- ---
<S> <C> <C> <C> <C>
Common Stock, $.01 165,000(1) $0.57(2) $ 94,050 $24.82
par value (currently
outstanding options)
Common Stock, $.01 435,000(1) $0.35(3) 152,250 40.20
par value (options ------
available for future
grants)
Total $65.02
======
</TABLE>
(1) The 1999 Employee Stock Option Plan provides for possible adjustment of
the number, price and kind of shares covered by options granted or to
be granted, in the event of certain capital or other changes affecting
the registrants common stock. In accordance with Rule 416, this
registration statement is also registering an indeterminate number of
shares that may become issuable by reason of any such adjustments.
(2) The computation is based upon the exercise price per share of $0.57 as
to the outstanding but unexercised options to purchase common stock
granted under the 1999 Employee Stock Option Plan.
(3) The actual offering price per share for shares available for future
grants of options will be determined in accordance with the terms of
the 1999 Employee Stock Option Plan. The 1999 Employee Stock Option
Plan provides that the option exercise price per share pursuant to a
stock option granted shall be such price as determined by the
Compensation Committee provided that no incentive stock option shall
have an exercise price less than the fair market value of the common
stock as of the date of grant. In accordance with Rule 457(h) under the
Securities Act of 1933, the Proposed Maximum Offering Price has been
estimated for the remaining shares of common stock available for
issuance pursuant to future grants of stock options under the 1999
Employee Stock Option Plan, solely for the purpose of calculating the
registration fee. The computation is based on the average of the high
and low prices of the registrant's common stock as reported on the OTC
Bulletin Board on November 28, 2000.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information respecified in Part I of the
Registration Statement on Form S-8 will be sent or given to participants in the
1999 Employee Stock Option Plan (the "Employee Plan") as specified under Rule
428(b)(1) of the Securities Act of 1933, as amended (the"Securities Act"). In
accordance with Rule 428 (a) under the Securities Act and the requirements of
Part I of Form S-*, such documents are not being filed with the Securities and
Exchange Commission (the "Commission"), either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. The Registrant shall maintain a file of such documents
in accordance with the provisions of Rule 428. Upon request, the Registrant
shall furnish to the Commission or its staff a copy or copies of any or all of
the documents included in such file.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Commission are
incorporated by reference herein and shall be deemed a part hereof:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1999 filed with the Commission on
March 30, 2000, together with the Amendment to Form 10-K on
Form 10-K/A filed with the Commission on May 15, 2000;
(b) The Registrant's Quarterly Reports on Form 10-Q for the
Quarters ended March 31, 2000, June 30, 2000 and September 30,
2000, filed with the Commission on May 22, 2000, August 21,
2000 and November 20, 2000, respectively.
(c) The Registrant's Current Report on Form 8-K filed with the
Commission on February 3, 2000;
(d) The Registrant's Current Report on Form 8-K/A filed with the
Commission on April 3, 2000;
(e) The Registrant's Current Report on Form 8-K/A filed with the
Commission on April 17, 2000;
(f) The Registrant's Current Report on Form 8-K filed with the
Commission on June 23, 2000;
(g) The Registrant's Current Report on Form 8-K/A filed with the
Commission on August 22, 2000;
(h) The description of the Registrant's common stock contained in
its Registration Statement on Form S-4 File No. 333-62949,
filed September 4, 1998, including any amendment or report
filed for the purpose of updating such description
All other documents filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c) and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered have
been sold or which de-registers all securities 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 (such documents, and the
documents enumerated above, being hereinafter referred to collectively as the
"Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified and superceded for the purposes of this Registration Statement to
the extent that a statement contained therein or in any other subsequently filed
Incorporated Document modifies or supercedes such
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<PAGE>
statement. Any such statements so modified or superceded shall not be deemed,
except as so modified or superceded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The law firm of Wallace, Bauman, Legon, Fodiman, Ponce & Shannon, P. A.
is providing an opinion of counsel regarding the validity of the issuance of the
shares of common stock being registered pursuant to this registration statement,
S. Daniel Ponce and Milton J. Wallace, Chairman of the Board and a Director of
the Registrant, respectively are shareholders of the law firm.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The indemnification of officers and directors of the Registrant is
governed by Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") and the Restated Certificate of Incorporation and By-Laws of the
Registrant. Subsection (a) of DGCL Section 145 empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful. Subsection (b) of DGCL Section 145 empowers a corporation to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper. DGCL Section 145 further provides that to the
extent that a present or former director or officer is successful, on the merits
or otherwise, in the defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith. In all cases in which indemnification is permitted
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under subsections (a) and (b) of Section 145 (unless ordered by a court), it
shall be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the present or former director, officer,
employee or agent is proper in the circumstances because the applicable standard
of conduct has been met by the party to be indemnified. Such determination must
be made, with respect to a person who is a director or officer at the time of
such determination, (1) by a majority vote of the directors who are not parties
to such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders. The statute authorizes the corporation to pay expenses
incurred by an officer or director in advance of the final disposition of a
proceeding upon receipt of an undertaking by or on behalf of the person to whom
the advance will be made, to repay the advances if it shall ultimately be
determined that he was not entitled to indemnification. DGCL Section 145 also
provides that indemnification and advancement of expenses permitted thereunder
are not to be exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any By-law,
agreement, vote of stockholders or disinterested directors, or otherwise. DGCL
Section 145 also authorizes the corporation to purchase and maintain liability
insurance on behalf of its directors, officers, employees and agents regardless
of whether the corporation would have the statutory power to indemnify such
persons against the liabilities insured.
The Registrant's Certificate of Incorporation provides for
indemnification of its officers and directors to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law.
The Registrant's Certificate of Incorporation eliminates any liability
of a director to the registrant or its stockholders for monetary damages for
breach of such director's fiduciary duties to the Registrant, except where a
director: (a) breaches his or her duty of loyalty to the Registrant or its
stockholders; (b) fails to act in good faith or engages in intentional
misconduct or knowing violation of law; (c) authorizes payment of an illegal
dividend or a stock repurchase; or (d) obtains an improper personal benefit.
While liability for monetary damages has been eliminated, equitable remedies
such as injunctive relief or rescission remain available if (i) a director
breaches, or fails to perform, his duties as a director, and (ii) the director's
breach of, or failure to perform, those duties constitute: (A) a violation of
criminal law, unless the director had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful; (B) a
transaction from which the director derived an improper personal benefit, either
directly or indirectly; (C) a circumstance under which the liability provisions
regarding unlawful distributions are applicable; (D) in a proceeding by or in
the right of the corporation to procure a judgment in its favor or by or in the
right of a shareholder, conscious disregard for the best interest of the
corporation, or willful misconduct; or (E) in a proceeding by or in the right of
someone other than the corporation or a shareholder, recklessness or an act or
omission which was committed in bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human rights, safety, or
property.
Bylaws. The Registrant's Bylaws provide that the Registrant shall, to
the fullest extent permitted by law, indemnify all directors of the Registrant,
as well as any officers, agents or employees of the Registrant to whom the
Registrant has agreed to grant indemnification.
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<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
ITEM 8. EXHIBITS.
The following exhibits are filed as part hereof or are incorporated by
reference into this Registration Statement as so indicated.
<TABLE>
<S> <C>
3.1* -- Certificate of Incorporation of Registrant.
3.2* -- Bylaws of Registrant.
4.1 - 1999 Employee Stock Option Plan
5.1 -- Opinion of Wallace, Bauman, Legon, Fodiman, Ponce & Shannon, P. A.
23.1 -- Consent of Wallace, Bauman, Legon, Fodiman, Ponce & Shannon, P. A.
included in Exhibit 5.1).
23.2 - Consent of PricewaterhouseCoopers LLP, independent certified public
accountants.
24.1 -- Power of Attorney (see page II-7)
</TABLE>
* Incorporated by reference to the Company's Registration Statement on
Form S-4 and all amendments thereto (File No. 333-62949).
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:
(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 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 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) 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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and 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
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<PAGE>
Exchange Act of 1934 that are incorporated by reference 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the 1934 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) 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.
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<PAGE>
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 Amendment to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Pompano Beach, State of Florida on November 29,
2000.
IMPERIAL INDUSTRIES, INC.
By: /S/ HOWARD L. EHLER, JR.
------------------------------------
HOWARD L. EHLER, JR.
Executive Vice President/
Principal Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints S. DANIEL PONCE and HOWARD L.
EHLER, JR. and each or any of them, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him or her
and in his or her name, place and stead, in any and all capacities, to sign any
registration statement filed pursuant to Rule 462(b) under the Securities Act of
1933 and any and all amendments (including post- effective amendments) to this
registration statement and to any registration statement filed pursuant to Rule
462(b), and to file same, with all exhibits thereto and, other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
each 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
foregoing, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or either of them, or their or his 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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ S. Daniel Ponce Chairman of the Board November 29, 2000
------------------------------------ of Directors
S. Daniel Ponce
/s/ Howard L. Ehler, Jr. Director/Executive Vice November 29, 2000
------------------------------------ President/Principal Executive
Howard L. Ehler Officer and Chief Financial Officer
/s/ Lisa M. Brock Director November 29, 2000
------------------------------------
Lisa M. Brock
/s/ Milton J. Wallace Director November 29, 2000
------------------------------------
Milton J. Wallace
/s/ Morton L. Weinberger Director November 29, 2000
------------------------------------
Morton L. Weinberger
</TABLE>
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