As filed with the Securities and Exchange Commission on June 18, 1999
Registration No. __________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
--------------------------
IMAGING TECHNOLOGIES CORPORATION
(Exact name of issuer as specified in its charter)
DELAWARE 33-0021693
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
15175 INNOVATION DRIVE, SAN DIEGO, CALIFORNIA 92128
(Address of principal executive offices) (Zip Code)
--------------------------
1999 SPECIAL COMPENSATION PLAN
(Full title of the plan)
--------------------------
BRIAN BONAR
C/O IMAGING TECHNOLOGIES CORPORATION
15175 INNOVATION DRIVE, SAN DIEGO, CALIFORNIA 92128
(Name and address of agent for service)
(619) 613-1300
(Telephone number, including area code, of agent for service)
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities
to be Registered Proposed
Pursuant to Written Maximum Proposed
Compensation Amount Offering Maximum Amount of
Agreements to be Price per Aggregate Registration
with Employees Registered Share (2)(3) Offering Price Fee
--------------- ---------- ------------- -------------- ----
<S> <C> <C> <C> <C>
Common Stock, $0.005 par value 100,000(1) $6.25 $625,000 $174
Common Stock, $0.005 par value 20,000(1) $5.00 $100,000 $28
Common Stock, $0.005 par value 75,000(1) $4.75 $356,250 $99
Common Stock, $0.005 par value 25,000(1) $4.00 $100,000 $28
Common Stock, $0.005 par value 45,000(1) $3.50 $157,500 $44
Common Stock, $0.005 par value 130,000(1) $3.00 $390,000 $109
Common Stock, $0.005 par value 100,000(1) $2.65 $265,000 $74
Common Stock, $0.005 par value 189,985(1) $2.25 $427,467 $119
Common Stock, $0.005 par value 210,000(1) $1.90 $399,000 $111
Common Stock, $0.005 par value 80,000(1) $1.19 $95,200 $27
<PAGE>
Title of Securities
to be Registered Proposed
Pursuant to Written Maximum Proposed
Compensation Amount Offering Maximum Amount of
Agreements to be Price per Aggregate Registration
with Employees Registered Share (2)(3) Offering Price Fee
--------------- ---------- ------------- -------------- ----
Common Stock, $0.005 par value 850,000 $1.13 $960,500 $267
Common Stock, $0.005 par value 460,000(1) $0.91 $418,600 $117
Common Stock, $0.005 par value 1,227,500(1) $0.75 $920,625 $256
--------- ----- -------- ----
3,512,485 $5,215,142 $1,453
========= ========== ======
</TABLE>
(1) Pursuant to Rule 416, this Registration Statement shall also cover any
additional shares of Common Stock which become issuable under the
Imaging Technologies Corporation warrants related to the Written
Compensation Agreements by reason of any anti-dilution provisions,
including stock dividends, stock splits, recapitalization or other
similar transactions effected without the receipt of consideration
which results in an increase in the number of the Registrant's
outstanding shares of Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(c), (g)
and (h) of the Securities Act of 1933 based on the average of the high
and low prices per share of the Registrant's Common Shares reported on
the NASDAQ SmallCap Market on June 11, 1999.
(3) Estimated solely for the purpose of calculating the registration fee.
In accordance with Rule 457(g), the registration fee for these shares
is calculated based upon a price which represents the highest of: (i)
the price at which the warrants may be exercised; (ii) the offering
price of securities of the same class included in the registration
statement; and (iii) the price of securities of the same class, as
determined by Rule 457(c).
2
<PAGE>
PART I - INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
See Exhibit 99.1.
Item 2. Registrant Information and Employee Plan Annual Information.
See Exhibit 99.1.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Imaging Technologies Corporation (the "Registrant") hereby files this
Registration Statement with the Securities and Exchange Commission (the
"Commission") on Form S-8 to register 3,512,485 shares of the Registrant's
Common Stock for issuance pursuant to warrants related to the Registrant's
written Compensation Agreements with its Employees and consultants.
Item 3. Incorporation of Certain Documents by Reference
The Registrant hereby incorporates by reference into this
Registration Statement the following documents previously filed with the
Commission:
(a) The Registrant's Annual Report on Form 10-K, for the
fiscal year ended June 30, 1998.
(b) Our definitive proxy statement on Schedule 14A for the
annual meeting of shareholders scheduled for on or about May
27, 1999.
(c) Our quarterly reports on Form 10-Q for the periods ended
September 30, 1998, December 31, 1998 and March 31, 1999.
(d) Our current report on Form 8-K filed on February 26, 1999.
(e) The Registrant's Form 8-A filed on July 6, 1984 pursuant
to Section 12 of the Exchange Act, in which there is described
the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby 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.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
3
<PAGE>
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law allows
companies to indemnify their directors and officers against expenses, judgments,
fines and amounts paid in settlement under the conditions and limitations
described in the law.
Article Seventh of our certificate of incorporation provides
that the registrant shall indemnify all persons whom it may indemnify pursuant
to Section 145 of the Delaware General Corporation Law to the full extent
permitted by Section 145. Article Ninth of our certificate of incorporation
provides that no director of our shall be personally liable to the corporation
or its stockholders for monetary damages for any breach of fiduciary duty by the
director as a director, except for a breach of the director's duty of loyalty to
the corporation or its stockholders, for any acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, an
unlawful stock purchase or payment of a dividend under Delaware law or for any
transaction from which the director derived an improper personal benefit.
Article X of our bylaws provides that the registrant shall
indemnify its officers, directors and employees. The rights to indemnity
thereunder continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors, and
administrators of the person. In addition, expenses incurred by a director or
officer in defending any action, suit or proceeding by reason of the fact that
he or she is or was a director or officer of the registrant shall be paid by the
registrant unless such officer, director or employee is adjudged liable for
negligence or misconduct in the performance of his or her duties.
We have entered into indemnification agreements with all of
our officers and directors. In some cases, the provisions of these
indemnification agreements may be broader than the specific indemnification
provisions contained in our certificate of incorporation or otherwise permitted
under Delaware law. Each indemnification agreement may require us to indemnify
an officer or director against liabilities that may arise by reason of his
status or service as an officer or director, or against liabilities arising from
the director's willful misconduct of a culpable nature.
We maintain a directors and officers liability policy with
Carolina Casualty that contains an aggregate limit of liability of $5,000,000.
Furthermore, we maintain an excess directors and officers liability policy with
Philadelphia Insurance Company for liability in excess of $5,000,000 that
contains an aggregate limit of liability of $5,000,000 and also an excess
directors and officers liability policy with Fireman's Fund for liability in
excess of $10,000,000 that contains an aggregate limit of $5,000,000. All of
these policies expire on October 1, 1999.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to our directors, officers and
controlling persons pursuant to these provisions, or otherwise, we have been
advised that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
4
<PAGE>
EXPERTS
The audited consolidated financial statements, including the related
notes to those statements, for the year ended June 30, 1998 incorporated by
reference in this prospectus and elsewhere in the registration statement, have
been so incorporated in reliance on the report (which contains an explanatory
paragraph relating to the ability of our company to continue as a going concern,
as described in Note 1 to the financial statements) of Boros & Farrington APC,
independent accountants, given on the authority of said firm as experts in
accounting and auditing.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The Exhibits to this registration statement are listed in the index to
Exhibits on Page 8.
Item 9. Undertakings
A. The undersigned Registrant hereby undertakes: (1) to file,
during any period in which it offers or sells securities, 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 which individually, or together, represent a
fundamental change in the information in the Registration Statement, and (iii)
to include any additional or changed material information on the plan of
distribution; provided, that as to paragraphs (1)(i) and (1)(ii) the information
required in a post-effective amendment may be incorporated by reference from
periodic reports filed by the Registrant under the Securities Exchange Act; (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 of the securities offered, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and (3) to file a post-effective amendment to remove from registration
any of the securities being registered which remain unsold at the end 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 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
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 shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 (the "Act") 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
5
<PAGE>
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The remainder of this page has been intentionally left blank.
6
<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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California, on this 16th day of
June, 1999.
IMAGING TECHNOLOGIES CORPORATION
/s/ Brian Bonar
-----------------------------------------
Brian Bonar
President and Chief Executive Officer
/s/ Charles J. Olson II
-----------------------------------------
Charles J. Olson II
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Brian Bonar or Philip Englund, each
acting alone, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement (or any other registration statement
for the same offering that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933), and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he 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 below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Brian Bonar President, Chief Executive Officer and Director June 16, 1999
- -------------------------------- (Principal Executive Officer)
Brian Bonar
/s/ Harry J. Saal Chairman of the Board June 18, 1999
- --------------------------------
Harry J. Saal
/s/ A.L. Dubrow Director June 16, 1999
- -------------------------------
A. L. Dubrow
/s/ David M. Carver Director June 16, 1999
- --------------------------------
David M. Carver
/s/ Christopher McKee Vice President Finance (Chief Accounting June 16, 1999
- ------------------------------- Officer)
Christopher McKee
/s/ Charles J. Olson II Vice President and Chief Financial Officer June 16, 1999
- --------------------------------
Charles J. Olson II
/s/ Philip Englund Senior Vice President, General Counsel and June 16, 1999
- -------------------------------- Corporate Secretary
Philip Englund
</TABLE>
7
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
IMAGING TECHNOLOGIES CORPORATION
EXHIBIT INDEX
Exhibit Number
5 Opinion of Counsel, regarding the legality of the securities
registered hereunder.
23.1 Consent of Boros & Farrington APC
23.2 Consent of Counsel is contained in Exhibit 5
99.1 Summary and Prospectus
99.2 Form of Stock Warrant Agreement
99.3 Compensation Agreement
PARKER CHAPIN FLATTAU & KLIMPL, LLP
1211 Avenue of the Americas
New York, NY 10036
(212) 704-6000
Exhibit 5
June 17, 1999
Imaging Technologies Corporation
15175 Innovation Drive
San Diego, CA 92128
Re: Registration Statement on Form S-8
Gentlemen:
We have reviewed a Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission, for the
Special Compensation Plan of Imaging Technologies Corporation (the "Company"),
relating to an offering of 3,512,485 shares of common stock of the Company (the
"Shares"), which shares have been issued pursuant to warrants (the "Warrants")
granted under the Company's Written Compensation Agreements with its employees
(the "Agreements"), filed as an exhibit to the Registration Statement.
We have examined the Certificate of Incorporation, as amended, and the By-Laws
of the Company and all amendments thereto, the Registration Statement and
originals, or copies certified to our satisfaction, of such records of meetings,
written actions in lieu of meetings, or resolutions adopted at meetings, of the
directors of the Company, and such other documents and instruments as in our
judgment are necessary or appropriate to enable us to render the opinions
expressed below.
Based upon and subject to the foregoing, we are of the opinion that the Shares
have been duly and validly authorized for issuance under the Agreements, and
when issued against payment therefor in accordance with the terms of the
Agreements and the Warrants, will be duly authorized, validly issued, fully paid
and nonassessable shares of the Company's common stock, $0.005 value per share.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ Parker Chapin Flattau & Klimpl, LLP
Parker Chapin Flattau & Klimpl, LLP
Exhibit 23.1
Consent of Independent Accounts
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated October 5, 1998 which appears on Page
18 of Imaging Technologies Corporation's Annual Report on Form 10-K for the year
ended June 30, 1998.
/s/ Boros & Farrington APC
BOROS & FARRINGTON APC
San Diego, California
June 16, 1999
EXHIBIT 99.1
IMAGING TECHNOLOGIES CORPORATION
1999 SPECIAL COMPENSATION PLAN
SUMMARY AND PROSPECTUS
The date of this Prospectus is June 18, 1999
<PAGE>
THIS DOCUMENT CONSTITUTES PART OF THE OFFICIAL PROSPECTUS COVERING SECURITIES
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
General Information
INFORMATION ON THE
SPECIAL COMPENSATION PLAN
Imaging Technologies Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), is offering newly
issued shares of its common stock ("Common Stock") to eligible employees and
directors of the Corporation ("Recipients") pursuant to warrants (the
"Warrants") granted under the Corporation's written Compensation Agreements with
Recipients. The Warrants have been granted at the times and to the individuals
and in the amounts set forth in Section B below. The purpose of the Warrants is
to reward certain employees, consultants and directors of the Corporation for
extraordinary efforts in various areas during the Corporation's 1997, 1998 and
1999 fiscal years, and to encourage similar efforts in the future.
Only the individuals set forth in Section B below are eligible to
receive Warrants. Warrants were granted by the full Board of Directors in its
discretion. The Warrants are not assignable or transferable except in connection
with the holder's death. The Warrants are not subject to any provisions of the
Employee Retirement Income Security Act of 1974 or Section 401(a) of the
Internal Revenue Code and are not intended to be incentive stock options within
the meaning of Section 422 of the Internal Revenue Code.
Upon exercise of the Warrants, a Recipient will receive shares of
Common Stock. The Common Stock will be made available either from authorized but
unissued shares of Common Stock or from shares of Common Stock reacquired by the
Corporation, including shares repurchased on the open market.
In the event there should be any change in the outstanding Common Stock
by reason of a stock dividend, stock split, recapitalization, combination of
shares or other change affecting the outstanding Common Stock as a class without
receipt of consideration, appropriate adjustments will automatically be made to
the number and/or class of shares and the exercise price per share in effect
under the Warrants in order to preclude the dilution or enlargement of benefits
thereunder.
The Recipient will not have the rights of a stockholder with respect to
the shares covered by the Warrants until he exercises the Warrants, pays the
exercise price and is issued a stock certificate for the purchased shares. The
Warrants cannot be assigned or transferred, except by the provisions of the
Recipient's will or the laws of inheritance following his death. If a Recipient
dies while his Warrants are outstanding, the personal representative of his
estate or the person or persons to whom the Warrants are transferred by the
provisions of his will or the laws of inheritance following his death may
exercise the Warrants.
The Warrants become exercisable for the Warrant shares on the dates set
forth in Section B below. The Warrants may be exercised at any time thereafter
and prior to the end of the Warrant term except as otherwise indicated in
Section B below.
A Recipient may exercise the Warrants by (i) paying the exercise price
in cash or by check (the Board of Directors may in its discretion, allow a
Recipient to finance part of the exercise price of his or her Warrants through a
loan from the Corporation), and (ii) executing and delivering to the Secretary
of the Corporation upon the exercise of the Warrants a written notice of
exercise substantially in the same form as Exhibit "A" to the Corporation's form
of Warrant Certificate, attached hereto as Exhibit 99.1. The exercise price and
expiration dates of the Warrants are set forth in Section B below.
Recipients may obtain additional information about the Special
Compensation Plan and its administration by contacting Corporate Secretary at
Imaging Technologies Corporation 15175 Innovation Drive, San Diego, California
92128, (619) 613-1300, attention: Phil Englund.
<PAGE>
B. Details Regarding the Warrants
<TABLE>
<CAPTION>
Issue Date Number Expiration Date Name Price No. Shares Exercisable (1)
- ---------- ------ --------------- ---- ----- ---------------------------
<S> <C> <C> <C> <C> <C>
June 3, 1997 100,000 June 3, 2007 Harry J. Saal $6.25 8,348 on June 3, 1997 and an
additional 2,083 on the 3rd day of
each month for 44 months
Dec 22, 1997 75,000 Dec 22, 2007 Frank Leonardi $4.75 1,562 on the 22nd of each
month for 48 months
Jan 31, 1998 25,000 Jan 31, 2008 Frank Leonardi $4.00 520 on the 31st of each month
for 48 months
Sept 14, 1998 100,000 Sept 14, 2008 Frank Leonardi $1.90 2,083 on the 14th day of each
month for 48 months
June 18, 1998 5,831 June 18, 2008 Warren T. Lazaro $2.25 5,831 shares
June 18, 1998 40,000 June 18, 2008 Masao Yukawa $2.25 833 on the 18th day of each
month for 48 months
June 18, 1998 4,154 June 18, 2008 Stephen A. MacDonald $2.25 4,154 shares
June 18, 1998 40,000 June 18, 2008 David M. Carver $2.25 833 on the 18th day of each
month for 48 months
April 1, 1998 50,000 April 1, 2008 Gerry B. Berg $3.00 50,000 shares
May 11, 1998 50,000 May 11, 2008 Gerry B. Berg $3.00 50,000 shares
Sept. 14, 1998 60,000 Sept 14, 2008 Gerry B. Berg $1.90 60,000 shares
Sept 14, 1998 50,000 Sept 14, 2008 Michael K. Clemens $1.90 50,000 shares
Aug 11, 1998 100,000 Aug 11, 2008 Chris McKee $2.65 2,083 on the 11th day of each
month for 48 months
Feb 27, 1998 45,000 Feb 27, 2008 Joseph Pfeuffer $3.50 937 on the 27th day of each
month for 48 months
June 18, 1998 100,000 June 18, 2008 George I. Macleod $2.25 2,083 on the 18th day of each
month for 48 months
Jan 1, 1997 20,000 Jan 1, 2002 Mark Osman $5.00 20,000 on January 1, 1997
April 1, 1998 30,000 April 1, 2003 Mark Osman $3.00 30,000 on April 1, 1998
Feb 22, 1999 80,000 Feb 22, 2009 Philip Englund $1.19 1,666 on the 26th day of each
month for 48 months
Feb 19, 1999 850,000 Feb 19, 2009 Brian Bonar $1.13 150,000 on February 19, 1999;
250,000 on February 19, 2000;
2,083 shares on the 19th day of
each month for 24 months
commencing on February 19, 2000
May 27, 1999 76,000 May 27, 2009 Christopher McKee $0.91 1,583 on the 27th of each month
for 48 months
May 27, 1999 96,000 May 27, 2009 Phillip Englund $0.91 2,000 on the 27th of each month
for 48 months
<PAGE>
Issue Date Number Expiration Date Name Price No. Shares Exercisable (1)
- ---------- ------ --------------- ---- ----- ---------------------------
May 27, 1999 96,000 May 27, 2009 Joseph Pfeuffer $0.91 2,000 on the 27th of each month
for 48 months
May 27, 1999 96,000 May 27, 2009 Richard Stabile $0.91 2,000 on the 27th of each month
for 48 months
May 27, 1999 96,000 May 27, 2009 Charles Olson $0.91 2,000 on the 27th of each month
for 48 months
June 9, 1999 175,000 May 27, 2009 George I. Macleod $0.75 175,000 shares
June 9, 1999 70,000 June 9, 2009 Michael K. Clemens $0.75 70,000 shares
June 9, 1999 175,000 June 9, 2009 Gerry B. Berg $0.75 175,000 shares
June 9, 1999 27,000 June 9, 2009 Philip Englund $0.75 27,000 shares
June 9, 1999 65,000 June 9, 2009 Frank Leonardi $0.75 65,000 shares
June 9, 1999 43,000 June 9, 2009 Charles J. Olson $0.75 43,000 shares
June 9, 1999 27,000 June 9, 2009 Joseph Pfeuffer $0.75 27,000 shares
June 9, 1999 20,000 June 9, 2009 Gary Miner $0.75 20,000 shares
June 9, 1999 135,000 June 9, 2009 Peter Nellemose $0.75 135,000 shares
June 9, 1999 240,000 June 9, 2009 Frank Kavanaugh $0.75 240,000 shares
June 9, 1999 50,000 June 9, 2009 Michael Tetley $0.75 50,000 shares
June 9, 1999 20,000 June 9, 2009 Daniel Peoples $0.75 20,000 shares
June 9, 1999 30,000 June 9, 2009 Richard Stabile $0.75 30,000 shares
June 9, 1999 15,000 June 9, 2009 Drew Bylick $0.75 15,000 shares
June 9, 1999 30,000 June 9, 2009 Mark Osman $0.75 30,000 shares
June 9, 1999 60,000 June 9, 2009 Jeff Holmes $0.75 60,000 shares
June 9, 1999 45,500 June 9, 2009 David Wollner $0.75 45,500 shares
</TABLE>
(1) A Warrant shall become first exercisable on the date provided only if
the named holder continues to be employed by (or as a director or
consultant of) either the Corporation or one of the Corporation's
subsidiaries on such date. A Warrant, otherwise unexercisable, shall
terminate entirely and cease to be exercisable should the named holder
cease to be an employee or a director of the Corporation or one of its
subsidiaries in accordance with the provisions of Section 5 of the Warrant
Agreement.
C. Resale Restrictions
The Warrants do not impose any restrictions on resale of the securities
acquired upon exercise of the Warrants.
<PAGE>
D. Tax Effects of Warrants
The following is a general description of the Federal income tax
consequences of the Warrants. State and local tax treatment, which is not
discussed below, may vary from such Federal income tax treatment. A Recipient
should consult with his own tax advisor as to the tax consequences of the grant
and exercise of the Warrants.
A Recipient will recognize ordinary income in the year in which an
Warrant is exercised equal to the amount by which the fair market value of the
purchased shares on the date of exercise exceeds the exercise price. This income
will be reported by the Corporation on a Form W-2 for the year (or perhaps, in
the case of a non-employee, Form 1099), and a Recipient will be required to
satisfy any tax withholding requirements applicable to this income.
A Recipient will recognize capital gain or loss upon the disposition of
shares purchased under an Warrant. The gain or loss will be long-term if the
shares are held for more than one (1) year prior to the disposition. The holding
period normally starts at the time the Warrant is exercised.
The Corporation will be entitled to an income tax deduction equal to
the amount of ordinary income a Recipient recognizes in connection with the
exercise of the Warrant, provided the applicable withholding requirements are
satisfied. The deduction will, in general, be allowed for the taxable year of
the Corporation in which a Recipient recognizes such ordinary income.
E. Available Documents
Imaging Technologies Corporation is a Delaware corporation, which
maintains its principal executive offices at 15175 Innovation Drive, San Diego,
California 92128. The telephone number at the executive offices is (619)
613-1300. A Recipient may contact the Corporation at this address or telephone
number for further information concerning the Warrants and their administration.
A copy of the Corporation's Annual Report to Stockholders for the most
recent fiscal year will be furnished to a Recipient and additional copies will
be furnished, without charge, upon written or oral request to Corporate
Secretary, Imaging Technologies Corporation, 15175 Innovation Drive, San Diego,
California 92128, or upon telephoning the Corporation at (619) 613-1300. In
addition, a Recipient may obtain, without charge, upon written or oral request
to the Secretary, a copy of any of the documents listed below, which are hereby
incorporated by reference into this Prospectus, other than certain exhibits to
such documents:
1. The Corporation's Annual Report on Form 10-K for the fiscal
year ended June 30, 1998 filed with the Securities and
Exchange Commission (the "Commission");
2. The Corporation's Registration Statement on Form 8-A filed
with the Commission on July 6, 1984, in which there is
described the terms, rights and provisions applicable to the
Corporation's outstanding Common Stock.
The Corporation will also deliver to a Recipient without charge a copy
of all reports, proxy statements and other communications distributed to the
Corporation's stockholders.
EXHIBIT 99.2
NEITHER THESE WARRANTS NOR THE SHARES ISSUABLE UPON THE EXERCISE OF THESE
WARRANTS HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND THEY MAY NOT
BE TRANSFERRED EXCEPT PURSUANT TO REGISTRATION (OR AN EXEMPTION FROM
REGISTRATION) THEREUNDER. THESE WARRANTS HAVE BEEN ISSUED IN RELIANCE UPON THE
REPRESENTATION OF THE WARRANT HOLDER THAT THESE WARRANTS HAVE BEEN ACQUIRED FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TOWARD THE RESALE OR OTHER DISTRIBUTION
OF THESE WARRANTS OR THE UNDERLYING SHARES. THE TRANSFER OF THESE WARRANTS IS
SUBJECT TO RESTRICTIONS CONTAINED HEREIN.
__________, 199_
____,___ Warrants
IMAGING TECHNOLOGIES CORPORATION
RESTATED AND AMENDED COMMON STOCK PURCHASE WARRANTS
(Void after 5:00 p.m. California time, ____________, _____)
Certificate Evidencing ____,000 Warrants
(One Warrant is required for the purchase of one share of Common Stock,
subject to adjustment as provided below)
This is to certify that, for value received and subject to the
conditions herein set forth, ___________ (the "WARRANT HOLDER") is entitled to
purchase, at any time after 9:00 a.m. California time on ______________, and in
any event no later than 5:00 p.m. California time on __________ (the "Expiration
Date"), such number of shares of Common Stock, $0.005 par value, of Imaging
Technologies Corporation, a Delaware corporation (the "Company"), as shall equal
the number of Warrants evidenced by this Certificate (such shares purchasable
upon exercise of the Warrants are herein called the "Warrant Stock"), at $___
per share; provided that such right of exercise shall be limited by the
following vesting schedule:
(i) ____,000 underlying shares of the Warrants shall first vest and
become exercisable on ____________; and
(ii) ____,000 underlying shares of the Warrants shall first vest and
become exercisable on the _____ day of each month for ______ months.
The amount per share specified above, as adjusted from time to time pursuant to
the provisions hereinafter set forth, is herein called the "Purchase Price."
1. (a) If the Company shall, prior to the exercise of these Warrants,
divide its outstanding shares of Common Stock by recapitalization,
reclassification or split-up thereof, or if the Company shall declare a stock
dividend or distribute shares of Common Stock to its stockholders, the number of
shares of Common Stock purchasable upon exercise of these Warrants immediately
prior to such subdivision shall be proportionately increased, and if the Company
shall at any time combine the outstanding shares of Common Stock by
recapitalization, reclassification or combination thereof, the number of shares
of Common Stock purchasable upon exercise of these Warrants immediately prior to
such combination shall be proportionately decreased. Any such adjustment to the
number of shares shall be effective at the close of business on the effective
date of such subdivision or combination or if any adjustment is the result of a
stock dividend or distribution then the effective date for such adjustment based
thereon shall be the record date therefor.
(b) Whenever the number of shares of Common Stock purchasable
upon the exercise of these Warrants is required to be adjusted as provided in
this Section 1, the Purchase Price shall be adjusted (to the nearest cent) by
multiplying such Purchase Price immediately prior to such adjustment by a
fraction (x) the numerator of which shall be the number of shares of Common
Stock purchasable upon the exercise of these Warrants immediately prior to such
adjustment, and (y) the denominator of which shall be the number of shares of
Common Stock so purchasable immediately thereafter.
<PAGE>
(c) In case of any reclassification of the outstanding shares
of Common Stock, other than a change covered by paragraph 1(a) hereof or which
solely affects the par value of such shares of Common Stock, or in the case of
any merger or consolidation of the Company with or into another corporation
(other than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification or capital
reorganization of the outstanding shares of Common Stock), or in the case of any
sale or conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety in connection with which the Company is
dissolved, the holder of these Warrants shall have the right thereafter (until
the expiration of the right of exercise of these Warrants) to receive upon the
exercise thereof, for the same aggregate Purchase Price payable hereunder
immediately prior to such event, the kind and amount of shares of stock or other
securities or property receivable upon such reclassification, capital
reorganization, merger or consolidation, or upon the dissolution following any
sale or other transfer, which a holder of the number of shares of Common Stock
of the Company would obtain upon exercise of these Warrants immediately prior to
such event; and if any reclassification also results in a change in shares of
Common Stock covered by paragraph 1(a), then such adjustment shall be made
pursuant to both paragraph 1(a) and this paragraph 1(c). The provisions of this
paragraph 1(c) shall similarly apply to successive reclassifications, or capital
reorganization, mergers or consolidations, sales or other transfers.
(d) When any adjustment is required to be made pursuant to
this Section 1, the Company, upon the subsequent written request of any holder
of the Warrants, shall promptly mail to said holder a certificate setting forth
the Purchase Price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment. Such certificate shall also set forth, if
applicable, the kind and amount of stock or other securities or property into
which the Warrants shall be exercisable following the occurrence of any of the
events specified.
(e) The Company shall not be required upon the exercise of any
of the Warrants evidenced hereby to issue any fraction of shares, but shall make
any adjustment therefor in cash on the basis of the fair market value of any
such fractional interest as it shall appear on the public market for such
shares, or, if there is no public market for such shares, then as shall be
reasonably determined by the Company.
(f) The Company may at any time in its sole discretion which
shall be conclusive make any change in the form of Warrant Certificate that the
Company may deem appropriate and that does not affect the substance thereof; and
any Warrant Certificate thereafter issued or signed, whether in exchange or
substitution for an outstanding Warrant Certificate or otherwise, may be in the
form as changed.
2. The Company agrees that (i) a number of shares of Common Stock
sufficient to provide for the exercise of all outstanding Warrants upon the
basis hereinbefore set forth shall at all times during the term of said Warrants
be reserved for the exercise thereof, (ii) it shall from time to time, in
accordance with the laws of the State of Delaware, increase the authorized
number of shares of its Common Stock if at any time the number of shares of
Common Stock remaining unissued and available for issuance shall not be
sufficient to permit exercise of these Warrants, and (iii) during the term of
the Warrants it will keep current in filing all forms and other materials, if
any, required to be filed with the Securities and Exchange Commission pursuant
to the Securities Act of 1933, as amended (the "Securities Act") and the
Securities Exchange Act of 1934, as amended.
3. Exercise may be made of all or any part of the Warrants evidenced by
this Certificate by surrendering it, with the purchase form provided for herein
duly executed by the registered owner hereof, at the office of the Company,
15175 Innovation Drive, San Diego, California 92128 or at such other office or
agency as the Company may designate, accompanied by payment in full, of the
Purchase Price payable in respect of the Warrants being exercised as follows:
(i) by payment in cash or by certified or official bank check, or (ii) with
prior approval by the board of directors, and only with such prior approval, by
any combination of payment by means described in (i) above and payment in the
form of a promissory note with a maximum of a two year term, bearing interest at
the prime rate of interest as reported by Bank of America NT&SA in San
Francisco, California, from time to time, plus one percent (1%) and the
collateral and terms for which, as determined at the sole discretion of the
board of directors, shall consist of the Common Stock issued at the time of the
exercise; provided that with respect of the exercise of any of the Warrants
evidenced by this Certificate, payment by the means described in (i) above must
be made for an amount equal to at least the par value of the Common Stock of the
Company multiplied by the number of shares of Warrant Stock issued upon
exercise.
<PAGE>
If less than all of the Warrants evidenced by any Certificate are exercised, the
Company will, upon such exercise, execute and deliver to the registered owner
hereof a new certificate (dated the date hereof) evidencing the Warrants not so
exercised.
4. By acceptance of this Warrant Certificate the WARRANT HOLDER hereby
represents, warrants and acknowledges to the Company as follows:
(a) The WARRANT HOLDER acknowledges that the purchase, if
made, of the Warrant Stock involves a high degree of risk and further
acknowledges that he can bear the economic risk of the acquisition of the
Warrant Stock, including the total loss of his investment.
(b) By reason of his business and financial experience, the
WARRANT HOLDER has the capacity to protect his own interests in this transaction
and is acquiring (and will acquire) the Warrant Stock for his own account and
not with a view to distribution.
(c) The WARRANT HOLDER understands that the Warrants and the
Warrant Stock are being and will be offered and sold to him in reliance on
specific exemptions from the registration requirements of Federal and State
securities laws and that the Company is relying upon the truth and accuracy of
the representations, warranties, and acknowledgments of the WARRANT HOLDER set
forth herein in order to determine the applicability of such exemptions and the
suitability of the WARRANT HOLDER to acquire the Warrants and the Warrant Stock.
(d) The WARRANT HOLDER understands that no federal or state
agency has passed on or made any recommendation or endorsement of the Warrants
and/or the Warrant Stock.
5. (a) The exercise of the Warrants and the issuance of Warrant Stock
upon such exercise shall be subject to compliance by the Company and the WARRANT
HOLDER with all applicable requirements of law relating thereto and with all
applicable regulations of any stock exchange on which shares of the Company's
Common Stock may be listed at the time of such exercise and issuance.
(b) In connection with and as a condition to the exercise of
the Warrants, the WARRANT HOLDER shall execute and deliver to the Company such
representations in writing as may be requested by the Company in order for it to
comply with the applicable requirements of federal and state securities laws.
(c) Share certificates issued upon exercise of the Warrants
shall contain appropriate restrictive legends in connection with federal and
state securities laws, unless a registration statement under the 1933 Act has
been completed prior to the exercise of said Warrants.
The Warrant shall become first exercisable on the date
provided only if the WARRANT HOLDER continues to be employed by (or as a
director of) either the Corporation or one of the Corporation's subsidiaries on
such date. A Warrant, otherwise unexercisable, shall terminate entirely and
cease to be exercisable should the named holder cease to be an employee or a
director of the Corporation or one of its subsidiaries.
6. All shares of Common Stock or other securities delivered upon the
exercise or conversion of the Warrants evidenced hereby shall be validly issued,
fully paid and nonassessable.
7. This Certificate and the Warrants evidenced hereby shall be
nontransferable by the WARRANT HOLDER, except to the WARRANT HOLDER's heirs or
legatees. In the event of the WARRANT HOLDER's death, the WARRANT HOLDER's
administrator or executor shall give notice of said transfer to the Company,
which notice shall contain a request that the Company reissue the certificate or
certificates evidencing the Warrants to reflect said transfer upon surrender of
the certificate evidencing the Warrants being so transferred.
8. The WARRANT HOLDER shall not, by virtue of ownership of Warrants, be
entitled to any rights whatsoever of a shareholder of the Company.
9. This Certificate and these Warrants shall be governed by and
construed and interpreted in accordance with the internal laws of the State of
California. All disputes arising hereunder shall be tried in
<PAGE>
federal or state court located in San Diego County, California (the parties
hereby submitting to the exclusive personal jurisdiction of and exclusive venue
in such courts) and the parties agree that their remedies at law hereunder are
adequate and exclusive.
10. Notice pursuant to these Warrants shall be sufficiently given, if
sent by first-class mail, postage pre-paid, addressed, if to the WARRANT HOLDER,
to such holder at his last known address as it shall appear in the records of
the Company, and if to the Company, at 15175 Innovation Drive, San Diego,
California 92127, attn.: Secretary. The parties may alter the addresses to which
communications are to be sent hereunder by giving notice of such change of
address to the other party in conformity with the provisions of this Section for
the giving of notice.
11. Subject to the restrictions on transfer contained in Section 7
hereof, all the terms and provisions of these Warrants shall be binding upon and
inure to the benefit of and be enforceable by the successors and assigns of the
parties hereto.
12. Nothing in this Certificate confers upon the WARRANT HOLDER any
right to continue in the employ of the Company or any of the Company's
subsidiaries or interferes with or restricts in any way the rights of the
Company, or any of the Company's subsidiaries, which are hereby expressed
reserved, to discharge the WARRANT HOLDER at any time for any reason or no
reason, with or without cause (except as may be expressly otherwise stated in a
formal written employment agreement between the Company, or any of the Company's
subsidiaries, and the WARRANT HOLDER). Except to the extent the terms of any
formal written employment agreement between the Company, or any of the Company's
subsidiaries, and the WARRANT HOLDER may expressly provide otherwise, neither
the Company nor any of the Company's subsidiaries is under any obligation to
continue the employment of the WARRANT HOLDER for any period of specific
duration.
13. No amendment, modification, or supplement of this Certificate shall
be binding unless executed in writing and signed by the Company and the WARRANT
HOLDER.
Executed as of _________________ in San Diego, California.
IMAGING TECHNOLOGIES CORPORATION
By: -----------------------------
Title: ---------------------------
<PAGE>
IMAGING TECHNOLOGIES CORPORATION
SUBSCRIPTION FORM
To be Executed by the
WARRANT HOLDER In Order to
Exercise Warrants Dated
---------------
|_| I hereby deliver $ ______ and irrevocably elect to exercise _______
Common Stock Purchase Warrants represented by this Warrant Certificate,
and to purchase the securities issuable upon the exercise of such
Common Stock Purchase Warrants.
|_| I hereby deliver $ ______ and a promissory note, the terms of which
have been approved by the Board of Directors of the Company, in the
principal amount of $_________ and irrevocably elect to exercise
_________ Common Stock Purchase Warrants represented by this Warrant
Certificate, and to purchase the securities issuable upon the exercise
of such Common Stock Purchase Warrants.
The certificates for the securities to be acquired shall be issued
(bearing the appropriate legends) in the name of:
(Please Insert Name and Social Security or Other Identifying Number)
................................................................................
................................................................................
and be delivered to
................................................................................
................................................................................
................................................................................
and if such number of Common Stock Purchase Warrants shall not be all of the
Common Stock Purchase Warrants held by the WARRANT HOLDER, that a new Warrant
Certificate for the balance of such Common Stock Purchase Warrants be registered
in the name of, and delivered to, the WARRANT HOLDER at the address stated
below. ......................................
Date
Name (Printed)
Signature
Address
Social Security No.
Signature Guaranteed
EXHIBIT 99.3
COMPENSATION AGREEMENT
Agreement dated as of the 27th day of May 1999 by and between
___________ ("WARRANT HOLDER") and Imaging Technologies Corporation, a Delaware
corporation ("Company").
WITNESSETH
WHEREAS, WARRANT HOLDER provides and has provided services (the
"Services") to the Company.
WHEREAS, as part of the overall compensation to be paid to WARRANT
HOLDER for such Services, Company has previously granted WARRANT HOLDER Warrants
to purchase an aggregate of ___,___ shares of the Company's Common Stock (the
"Warrants") upon the terms and conditions set forth in the Warrant Certificate
dated May 27, 1999 (the "Warrant Certificate") and attached hereto as Exhibit
99.2.
WHEREAS, Company and WARRANT HOLDER now wish to memorialize, in
writing, certain agreements and understandings existing between them at the time
the Warrant Certificate was executed.
NOW, THEREFORE, in consideration of the above premises, the parties
hereto agree as follows:
1. Company and WARRANT HOLDER acknowledge and agree that the Warrants
were granted as compensation for the Services and not for any capital-raising
purposes or in connection with any capital-raising activities.
2. The Warrants are not assignable or transferable except in connection
with the WARRANT HOLDER's death.
3. This agreement is intended solely to memorialize the agreement and
understanding existing between WARRANT HOLDER and Company at the time the
Warrants were granted and the Warrant Certificate was executed. Nothing herein
or in the Warrant Certificate is intended to provide WARRANT HOLDER with the
right to remain in the Company's service for any specific period.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date first above written.
IMAGING TECHNOLOGIES CORPORATION
By: --------------------------------
Its: -------------------------------
- -----------------------------
- -----------------------------
WARRANT HOLDER's Printed Name
