As filed with the Securities and Exchange Commission on July 23, 1998
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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EQUITEX, INC.
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(Exact name of Registrant specified in its charter)
Delaware 84-0905189
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
7315 East Peakview Avenue, Building 8
Englewood, Colorado 80111
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(Address of Principal Executive Offices) Zip Code
1993 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
1993 STOCK OPTION PLAN
(Full title of the plan)
Henry Fong
President
Equitex, Inc.
7615 East Peakview Avenue, Building 8
Englewood, Colorado 80111
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(Name and address of agent for service)
(303) 796-8940
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(Telephone number, including area code, of agent for service)
Copies to:
Gerald Raskin, Esq.
Seth Weiss, Esq.
Michael R. Savage, Esq.
Friedlob Sanderson Raskin Paulson & Tourtillott, LLC
1400 Glenarm Place, Suite 300
Denver, Colorado 80202
(303) 571-1400
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed Maximum
Maximum Aggregate Offering
Title of Offering Price Price Amount of Registration
Securities to be Registered Amount to be Registered per Share Fee
(1)
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<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 100,000 $ 3.00 $300,000 $ 89
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Common Stock,
$.01 par value 750,000 $(2) $2,352,306 $694
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TOTALS 850,000 $2,652,306 $783
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(1) This Registration Statement is being filed to register (a) 100,000 shares
of common stock issuable pursuant to the Registrant's 1993 Stock Option
Plan for Non-Employee Directors (the "Director's Plan"); and (b) 750,000
shares of common stock issuable pursuant to the Registrant's 1993 Stock
Option Plan (the "1993 Plan").
(2) In accordance with Rule 457(h), the fee has been calculated as follows:
211,545 shares at $3.00 per share and 538,455 shares at $3.19 per share.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information.
Equitex, Inc. (the "Registrant") will provide to the option holders (the
"Recipients") the documents that contain information related to the plans which
provide for their options and other information including, but not limited to,
the disclosure required by Item 1 of Form S-8, which information is not filed as
a part of this Registration Statement (the "Registration Statement"). The
foregoing information and the documents incorporated by reference in response to
Item 3 of Part II of this Registration Statement taken together constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act of
1933, as amended (the "Securities Act"). A Section 10(a) prospectus will be
given to each Recipient who receives shares of common stock covered by this
Registration Statement, in accordance with Rule 428(b)(1) under the Securities
Act.
Item 2. Registrant Information.
The Registrant will provide to the Recipients a written statement advising
them of the availability of documents incorporated by reference in Item 3 of
Part II of this Registration Statement and of documents required to be delivered
pursuant to Rule 428(b) under the Securities Act without charge and upon written
or oral notice. The statement will include the address and telephone number to
which any requests for documents should be directed.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by the Registrant are
hereby incorporated into this Registration Statement by reference:
Registrant's Annual Report on Form 10-KSB for the year ended December 31,
1997;
Registrant's Quarterly Report on Form 10-QSB for the quarter ended March
31, 1998; and
The description of the common stock contained in the Exhibits to the
Registrant's Registration Statement on Form 8-A Commission File No. 012374
as filed with the Commission on July 26, 1983.
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 (the "Exchange
Act"), prior to the filing of a post-effective amendment which indicates that
all shares offered hereunder have been sold or 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.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides for, under
certain circumstances, the indemnification of the Registrant's officers,
directors, employees and agents against liabilities which they may incur in such
capacities. A summarization of the circumstances in which such indemnification
is contained herein, but that description is qualified in its entirety by
reference to the relevant Section of the Delaware General Corporation Law.
In general, the statute provides that any director, officer, employee or
agent of a corporation may be indemnified against expenses (including attorneys'
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fees), judgments, fines and amounts paid in settlement, actually and reasonably
incurred in a proceeding (including any civil, criminal, administrative or
investigative proceeding) to which the individual was a party by reason of such
status. Such indemnity may be provided if the indemnified person's actions
resulting in the liabilities: (i) were taken in good faith; (ii) were reasonably
believed to have been in or not opposed to the Registrant's best interest; and
(iii) with respect to any criminal action, such person had no reasonable cause
to believe the actions were unlawful. Unless ordered by a court, indemnification
generally may be awarded only after a determination of independent members of
the Board of Directors or committee thereof, by independent legal counsel or by
vote of the stockholders that the applicable standard of conduct was met by the
individual to be indemnified.
The statutory provisions further provide that to the extent a director,
officer, employee or agent is wholly successful on the merits or otherwise in
defense of any proceeding to which he was a party, he is entitled to receive
indemnification against expenses, including attorneys' fees, actually and
reasonably incurred in connection with the proceeding.
Indemnification in connection with a proceeding by or in the right of the
Corporation in which the director, officer, employee or agent is successful is
permitted only with respect to expenses, including attorneys' fees actually and
reasonably incurred in connection with the defense. In such actions, the person
to be indemnified must have acted in good faith, in a manner believed to have
been in the Corporation's best interest and must not have been adjudged liable
to the Corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability, in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expense which the Court of Chancery or such other court shall
deem proper. Indemnification is otherwise prohibited in connection with a
proceeding brought on behalf of the Registrant in which a director is adjudged
liable to the Registrant, or in connection with any proceeding charging improper
personal benefit to the director in which the director is adjudged liable for
receipt of an improper personal benefit.
Delaware law authorizes the Registrant to reimburse or pay reasonable
expenses incurred by a director, officer, employee or agent in connection with a
proceeding in advance of a final disposition of the matter. Such advances of
expenses are permitted if the person furnishes to the Registrant a written
agreement to repay such advances if it is determined that he is not entitled to
be indemnified by the Corporation.
The statutory section cited above further specifies that any provisions for
indemnification of or advances for expenses does not exclude other rights under
the Registrant's Certificate of Incorporation, Bylaws, resolutions of its
stockholders or disinterested directors, or otherwise. These indemnification
provisions continue for a person who has ceased to be a director, officer,
employee or agent of the corporation and inure to the benefit of the heirs,
executors and administrators of such persons.
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The statutory provision cited above also grants the power to the Registrant
to purchase and maintain insurance policies which protect any director, officer,
employee or agent against any liability asserted against or incurred by him in
such capacity arising out of his status as such. Such policies may provide for
indemnification whether or not the corporation would otherwise have the power to
provide for it. No such policies providing protection against liabilities
imposed under the securities laws have been obtained by the Registrant.
Article VII, Section 9 of the Registrant's Bylaws provide that the
Registrant shall indemnify its directors, officers, employees and agents to the
fullest extent permitted by the Delaware General Corporation Law. In addition,
the Registrant has entered into agreements with its directors indemnifying them
to the fullest extent permitted by the Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
The following is a complete list of exhibits filed as a part of this
Registration Statement, which Exhibits are incorporated herein.
4.1 Amended Certificate of Incorporation for Equitex, Inc. (Incorporated by
reference to Exhibit 3.1 of the Registrant's Form S-18, No. 2-82104-D,
effective April 11, 1983)
5.1 Opinion of Counsel and Consent of Friedlob Sanderson Raskin Paulson &
Tourtillott, LLC
24.1 Power of Attorney - Included on Signature Page
23.1 Consent of Friedlob Sanderson Raskin Paulson & Tourtillott, LLC - See
Exhibit 5.1.
23.2 Consent of Davis & Co., CPAs, P.C.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
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(a) (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
additional or changed material information on the plan of distribution.
(a) (2) That, for determining any liability under the Securities Act, it
will treat each post-effective amendment as a new registration statement of the
securities offered, and the offering of such securities at that time to be the
initial bona fide offering.
(a) (3) To file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
(b) Not applicable.
(c) Not Applicable.
(d) Not Applicable.
(e) Not Applicable.
(f) Not Applicable.
(g) Not Applicable.
(h) Not Applicable.
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SIGNATURES
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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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Englewood, State of Colorado, on July 23, 1998.
EQUITEX, INC.
By /S/ HENRY FONG
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Henry Fong
President, Treasurer and Director
(Principal Executive, Financial
and Accounting Officer)
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and/or
directors of Equitex, Inc., by virtue of their signatures appearing below,
hereby constitute and appoint Henry Fong and Thomas B. Olson, each with full
power of substitution, as attorneys-in-fact in their names, places and steads to
execute any and all amendments to this Registration Statement on Form S-8 in the
capacities set forth opposite their names below and hereby ratify all that said
attorneys-in-fact may do by virtue thereof.
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 dates indicated.
Signatures Title Date
/S/ HENRY FONG
- ----------------------------- July 23, 1998
Henry Fong Director
/S/ RUSSELL L. CASEMENT
- ----------------------------- July 23, 1998
Russell L. Casement Director
/S/ AARON A. GRUNFELD
- ----------------------------- July 23, 1998
Aaron A. Grunfeld Director
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EXHIBIT 5.1
July 23, 1998
Board of Directors
Equitex, Inc.
7615 Peakview Avenue, Bldg. 8
Englewood, CO 80111
Re: Registration Statement on Form S-8
Opinion of Counsel
Gentlemen:
As counsel for Equitex, Inc. (the "Company"), a Delaware corporation, we
have examined the Certificate of Incorporation, the Bylaws and Minutes of the
Company and such other corporate records, documents and proceedings, and have
considered such questions of law as we deemed relevant for the purpose of this
opinion. We have also, as such counsel, examined the Company's Registration
Statement on Form S-8 (the "Registration Statement"), which will be filed with
the Securities and Exchange Commission today or shortly thereafter, covering the
sale of an aggregate of up to 100,000 shares of the Company's common stock under
the 1993 Stock Option Plan for Non-Employee Directors and 750,000 shares of the
Company's common stock under the 1993 Stock Option Plan (collectively known as
the "Shares") as described in, and in accordance with, the terms of the
Registration Statement.
Based upon the foregoing, we are of the opinion that the Shares, upon
exercise of the options in accordance with their terms, will be duly and validly
issued as fully paid and non-assessable shares of common stock of the
Corporation.
We hereby consent to the use of our name in such Registration Statement and
to the filing of this opinion as Exhibit 5.1 thereto. In giving this consent, we
do not thereby admit that we come within the category of persons whose consent
is required under Section 7 of the Securities Act of 1933 or the Rules and
Regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
FRIEDLOB SANDERSON RASKIN
PAULSON & TOURTILLOTT, LLC
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of Equitex, Inc. of our report dated March 27, 1988, relating to the
consolidated balance sheet of Equitex, Inc. and subsidiaries as of December 31,
1997, and the related consolidated statements of operations, shareholders'
equity, and cash flows for each of the years in the two-year period ended
December 31, 1997, which report appears in the December 31, 1997 annual report
on Form 10-KSB of Equitex, Inc.
/S/ DAVIS & CO., CPA'S, P.C.
DAVIS & CO., CPA'S, P.C.
Englewood, Colorado
July 23, 1998
