Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
----------
INITIO, INC.
----------------------------------------------------
(Exact name of registrant as specified in its charter)
Nevada 22-1906744
- --------------------------------------------------------------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification
Number)
2500 Arrowhead Drive, Carson City, Nevada 89706
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
1996 Stock Option Plan
-----------------------
(Full Title of the Plans)
Arnold N. Bressler, Esq.
Milberg Weiss Bershad Hynes & Lerach
One Pennsylvania Plaza
New York, New York 10119/0165
-------------------------------------
(Name and address of agent for service)
(212) 594-5300
-----------------------------------------------------------
(Telephone number, including area code, of agent for service)
Approximate date of commencement of proposed sale to the public:
As Soon As Practicable After Registration Statement Becomes Effective.
Page 1 of 19 Pages
Exhibit Index Begins on Page II-5
(Facing Page Continued on the Following Page)
<PAGE>
(Continuation of Facing Page)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share(1) Price(2) Fee
- --------------------------------------------------------------------------------
Common Shares,
par value $.01
per share 500,000 $2.68(2) $1,340,000 $353.76
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1).
(2) Based upon the average of the high and low prices of common shares on the
Nasdaq on April 12, 2000.
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission (File No. 0-9848)
pursuant to the Securities Exchange Act of 1934 are incorporated by reference
into this Registration Statement.
a. The Company's Annual Report on Form 10-KSB for the fiscal year ended
April 30, 1999.
b. The Company's reports on Form 10-QSB for the quarters ending July 31,
1999, October 31, 1999 and January 31, 2000.
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 the securities
offered have been sold or which deregisters all the securities then remaining
unsold, shall be deemed to be incorporated by reference in the Registration
Statement and to be part thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interest of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Officers and Directors.
The Company's Certificate of Incorporation permits the Company to
indemnify its officers, directors and employees for any judgment, settlement or
related expense. In addition, advances of expenses to officers and directors are
permitted upon an undertaking by the person to be indemnified to repay all such
expenses if he or she is ultimately found not to be entitled to indemnification.
The indemnification provision in the Company's Certificate of Incorporation
applies to all actions and proceedings including those brought by or in the
right of the Company. Directors and officers remain liable for acts and
omissions not in good faith or which involve intentional misconduct and
transactions from which such officer or director derives improper personal
benefit.
Item 7. Exemption from Registration Claimed.
Not Applicable.
II-1
<PAGE>
Item 8. Exhibits.
Exhibit
Number Description
- ------ -----------
10(a) 1996 Stock Option Plan.
23 Consent of Arthur Andersen LLP
Item 9. Undertakings.
(1) The undersigned Registrant hereby undertakes:
(a) 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
of 1933; (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; 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; provided, however, that paragraphs (a)(1)(i) and
(a)(i)(ii) do not apply to information required to be included in a
post-effective amendment by those paragraphs which are contained in
periodic reports filed by the undersigned Registrant pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this Registration Statement;
(b) 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;
(c) 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.
(2) 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 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 therein and the offering of such
securities at that time
II-2
<PAGE>
shall be deemed to be the initial bona fide offering thereof.
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 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.
II-3
<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 the City of North Bergen, State of New Jersey, on this 14th
day of April, 2000.
INITIO, INC.
By: /s/ Martin Fox
--------------
Martin Fox
President
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.
Date: April 14, 2000 /s/ Martin Fox
-------------------
Martin Fox,
President and Director
Date: April 14, 2000 /s/ Daniel A. DeStefano
-----------------------
Daniel A. DeStefano,
Chairman of the Board
and Director
Date:
________________________
James J. Holzinger
Director
Date: April 14, 2000 /s/ Robert Lerman
-----------------
Robert Lerman
Director
Date: , 2000
________________________
Paul Lerman
Director
II-4
<PAGE>
EXHIBIT INDEX
Exhibit Page
Number Document Number
------ -------- ------
10(a) 1996 Stock Option Plan 9
23 Consent of Arthur Andersen & LLP 18
II-5
Exhibit 10(a)
INITIO, INC.
1996 STOCK OPTION PLAN
1. Purpose of Plan. This 1996 Stock Option Plan (the "Plan") is designed
to assist INITIO, INC. (the "Company") in retaining the services of key
employees, non-employee directors and such consultants as may be designated and
to provide them with an incentive and inducement to contribute fully to the
further growth and development of the business of the Company and its
subsidiaries.
2. Definitions. In addition to other definitions contained elsewhere in
the Plan, as used in the Plan the following terms have the following meanings
unless the context otherwise indicates or requires:
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as the same may from time to
time be amended.
"Committee" means the Committee referred to in Section 4 hereof.
"Common Stock" means the Common Stock of the Company, par value $.01 per share.
"Designated beneficiary" means the person designated by an optionee to be
entitled on his death to any remaining rights arising out of an option, such
designation to be made in accordance with such regulations as the Committee or
Board may establish.
"Disinterested Person" means "disinterested person" as defined in Rule
16b-3(c)(i), or any successor provision, promulgated under the Securities
Exchange Act of 1934.
"Fair market value" means the mean between dealer closing "bid" and "ask" prices
on the over-the-counter market on the last day on which the Company's shares of
Common Stock were traded immediately preceding the date an option is granted
pursuant to
<PAGE>
the Plan, as reported by the National Association of Security Dealers Automated
Quotation System ("NASDAQ"), or NASDAQ's successor, or if not reported on
NASDAQ, the fair market value of such Common Stock as determined by the
Committee or the Board in good faith and based on all relevant factors.
"Stock Options" means any stock options granted to an optionee under the Plan.
"Stock Option Agreement" means a stock option agreement entered into pursuant to
the Plan.
3. Stock Options; Stock Subject to Plan. The stock to be issued upon
exercise of Stock Options granted under the Plan shall consist of authorized but
unissued shares, or of treasury shares, of Common Stock, as determined from time
to time by the Board. The maximum number of shares for which Stock Options may
be granted under the Plan is 500,000 shares, subject to adjustment as provided
in Section 7. If any Stock Option granted under the Plan shall expire or
terminate for any reason whatsoever without having been exercised in full, the
unpurchased shares shall become available for new options.
4. Administration.
(a) The Plan shall be administered by a Stock Option Committee or, if such
Committee not be appointed, by the Board. If the Board administers the Plan, all
of the directors acting in this regard must be Disinterested Persons. For
purposes of the Plan, the Board or its appointed Committee shall be referred to
as the "Committee". The Committee, if any, shall be appointed by the Board and
shall consist of not less than two members, each of whom is a Disinterested
Person. The Board shall fill all vacancies on the Committee and may remove any
member of the Committee at any time with or without cause, provided that the
-2-
<PAGE>
Board replaces such member with a Disinterested Person. The Committee shall
select its own chairman and shall adopt, alter or repeal such rules and
procedures as it may deem proper and shall hold its meetings at such times and
places as it may determine. The Committee shall keep minutes of its meetings and
of actions taken by it without a meeting. A majority of the Committee present at
any meeting at which a quorum is present, or acts approved in writing by all
members of the Committee without a meeting, shall be the acts of the Committee.
(b) Unless otherwise determined by the Board, the Committee shall have
full and final authority in its discretion, but subject to the express
provisions of the Plan, to (i) prescribe, amend and rescind rules and
regulations relating to the Plan; (ii) interpret the Plan and the respective
Stock Options; and (iii) make all other determinations necessary or advisable
for administering the Plan. All determinations and interpretations by the
Committee or the Board shall be binding and conclusive upon all parties. No
member of the Committee or the Board shall be liable for any action or
determination made in good faith in respect of the Plan or any Stock Option
granted under it.
(c) The provisions of this Section 4 shall survive any termination of the
Plan.
5. Terms and Exercise of Stock Option.
(a) Each Stock Option shall terminate no later than ten years after the
date on which it shall have been granted.
-3-
<PAGE>
The date of termination pursuant to this paragraph is referred to hereinafter as
the "termination date of the option".
(b) Unless otherwise determined by the Committee, Stock Options shall be
exercisable with respect to 20% of the shares subject to the Stock Option on the
date of grant and an additional 20% on each of the succeeding four anniversaries
of the date of grant. Any shares which may be purchased on any such date or
other period which are not purchased on such date or other period may be
purchased at any time or from time to time during any subsequent time period
during the term of the Stock Option.
(c) A Stock Option shall be exercised by written notice to the Secretary
or Treasurer of the Company at its then principal office. The notice shall
specify the number of shares as to which the Stock Option is being exercised and
shall be accompanied by payment in full of the purchase price for such shares;
provided, however, that an optionee at his or her discretion may, in lieu of
cash payment, (i) deliver Common Stock already owed by him or her, valued at
fair market value on the date of delivery, as payment for the exercise of any
Stock Option or (ii) request that the Company withhold, from the number of
shares of Common Stock that may otherwise be obtained upon the exercise of the
Stock Option, that number of shares having an aggregate fair market value equal
to the Stock Option exercise price. In the event a Stock Option is being
exercised, in whole or in part, pursuant to Section 6(c) hereof by any person
other than the optionee, a notice of election shall be accompanied by
-4-
<PAGE>
proof satisfactory to the Company of the rights of such person to exercise said
Stock Option. An optionee shall not, by virtue of the granting of a Stock
Option, be entitled to any rights of a shareholder in the Company and such
optionee shall not be considered a record holder of shares purchased by him or
her until the date on which he or she shall actually be recorded as the holder
of such shares upon the stock records of the Company. The Company shall not be
required to issue any fractional shares upon exercise of any Stock Option and
shall not be required to pay to the person exercising the Stock Option the cash
equivalent of any fractional share interest unless so determined by the
Committee.
(d) In the event an optionee elects to deliver Common Stock already owned
by such optionee or to request that Common Stock be withheld in accordance with
subsection (c) above, upon exercise of a Stock Option granted hereunder, the
Company shall be entitled to require as a condition thereto that the optionee
remit an amount which the Company deems sufficient to satisfy all Federal, State
and other governmental withholding tax requirements related thereto. The Company
shall have the right, in lieu of or in addition to the foregoing to withhold
such sums from compensation otherwise due to the optionee.
6. Other Stock Option Conditions.
(a) No Stock Option shall be transferred by the optionee otherwise than by
will or by the laws of descent and distribution. During the lifetime of the
optionee the Stock
-5-
<PAGE>
Option shall be exercisable only by such optionee or by his or her legal
representative.
(b) In the event of the termination of an optionee's employment by the
Company at any time for any reason (excluding disability or death), his or her
option and all rights thereunder shall be exercisable by the optionee at any
time within thirty (30) days thereafter but in no event later than the
termination date of his or her Stock Option. Notwithstanding the foregoing, in
the event an Optionee is permanently and totally disabled (within the meaning of
Section 105(d)(4), or any successor section, of the Code), his or her Stock
Option and all rights thereunder shall be exercisable by the optionee (or his or
her legal representative) at any time within six (6) months of termination of
employment, but in no event later than the termination date of his Stock Option.
(c) If an Optionee shall die while in the employ of the Company, his or
her Stock Option may be exercised by his or her designated beneficiary or
beneficiaries (or if none have been effectively designated, by his or her
executor, administrator or the person to whom his or her rights under his or her
Stock Option shall pass by will or by the laws of descent and distribution) at
any time within six (6) months after the date of death, but not later than the
termination date of his or her Stock Option.
(d) Each Stock Option granted pursuant to the Plan shall be evidenced by a
written Stock Option Agreement, duly executed by the Company and the optionee,
in such form and
-6-
<PAGE>
containing such provisions as the Committee may from time to time authorize or
approve.
7. Adjustments. The Stock Option Agreements shall contain such provisions
as the Committee shall determine to be appropriate for the adjustment of the
kind and number of shares subject to each outstanding Stock Option, or the Stock
Option prices, or both, in the event of any changes in the outstanding Common
Stock of the Company by reason of stock dividends, stock splits,
recapitalizations, reorganizations, mergers, consolidations, combinations or
exchanges of shares, and the like. In the event of any such change or changes in
the outstanding Common Stock, and as often as the same shall occur, the kind and
aggregate number of shares available under the Plan may be appropriately
adjusted by the Committee, whose determination shall be binding and conclusive.
8. Amendment and Termination.
(a) Unless the Plan shall have been otherwise terminated as provided
herein, it shall terminate on, and no option shall be granted thereunder, after
December 31, 2006. The Board may at any time prior to that date alter, suspend
or terminate the Plan as it may deem advisable. Except as otherwise hereinafter
provided, no alteration, suspension or termination of the Plan may, without the
consent of the optionee to whom any Stock Option shall have theretofore been
granted (or the person or persons entitled to exercise such Stock Option under
Section 6(c) of the Plan), terminate such optionee's Stock Option or adversely
affect such optionee's rights thereunder.
-7-
<PAGE>
(b) Anything herein to the contrary notwithstanding, in the event that the
Board shall at any time declare it advisable to do so in connection with any
proposed sale or conveyance of all or substantially all of the property and
assets of the Company or of any proposed consolidation or merger of the Company
(unless the Company shall be the surviving corporation in such merger), the
Company may give written notice to the holder of any Stock Option that his or
her Stock Option may be exercised only within thirty (30) days after the date of
such notice but not thereafter, and all rights under said Stock Option which
shall not have been so exercised shall terminate at the expiration of such
thirty (30) days, provided that the proposed sale, conveyance, consolidation or
merger to which such notice shall relate shall be consummated within six (6)
months after the date of such notice. If such proposed sale, conveyance,
consolidation or merger shall not be consummated within said time period, no
unexercised rights under any Stock Option shall be affected by such notice
except that such Stock Option may not be exercised between the date of
expiration of such thirty (30) days and the date of the expiration of such six
(6) months.
9. Indemnification. Any member of the Committee or the Board who is made,
or threatened to be made, a party to any action or proceeding, whether civil or
criminal, by reason of the fact that such person is or was a member of the
Committee or the Board insofar as it relates to the Plan shall be indemnified by
the Company, and the Company may advance such person's related
-8-
<PAGE>
expenses, to the full extent permitted by law and/or the Certificate of
Incorporation of the Company.
10. Effective Date of the Plan. The Plan shall become effective on the
date of adoption by the Board.
11. Expenses. Except as otherwise provided herein for the payment of
Federal, State and other governmental taxes, the Company shall pay all fees and
expenses incurred in connection with the Plan.
12. Government Regulations, Registrations and Listing of Stock.
(a) The Plan, and the grant and exercise of Stock Options thereunder, and
the Company's obligation to sell and deliver stock under such Stock Options,
shall be subject to all applicable Federal and State laws, rules and regulations
and to such approvals by any regulatory or governmental agency as may be
required.
(b) The Company may in its discretion require, whether or not a
registration statement under the Securities Act of 1933 and the applicable rules
and regulations thereunder (collectively the "Act") is then in effect with
respect to shares issued upon exercise of any Stock Option, or the offer and
sale of such shares is exempt from the registration provisions of such Act, that
as a condition precedent to the exercise of any Stock Option, the person
exercising the Stock Option give to the Company a written representation and
undertaking, satisfactory in form and substance to the Company, that such person
is acquiring the shares for his or her own account for investment and not with a
view to the distribution or resale thereof and otherwise
-9-
<PAGE>
establish to the Company's satisfaction that the offer or sale of the shares
issuable upon exercise of the Stock Option will not constitute or result in any
breach or violation of the Act or any similar act or statute or any rules or
regulations thereunder. In the event that a Registration Statement under the Act
is not then in effect with respect to the Common Shares issued upon the exercise
of such Stock Option, the Company may place upon any stock certificate an
appropriate legend referring to the restrictions on disposition under the Act.
(c) In the event the class of shares issuable upon the exercise of any
Stock Option is listed on any national securities exchange or NASDAQ, the
Company shall not be required to issue or deliver any certificate for shares
upon the exercise of any Stock Option prior to the listing of the shares so
issuable on such national securities exchange or NASDAQ and prior to the
registration of the same under the Securities Exchange Act of 1934 or any
similar act or statute.
-10-
Exhibit 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated July 16, 1999
included in Initio, Inc.'s Form 10-KSB for the year ended April 30, 1999
included in this registration statement on Form S-8 registering 500,000 shares
of common stock.
New York, New York ARTHUR ANDERSEN LLP
April 14, 2000
