SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
(Amendment No. 6)
Under the Securities Exchange Act of 1934
IMAGING TECHNOLOGIES CORPORATION
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(Name of Issuer)
COMMON STOCK
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(Title of Class of Securities)
45244U-104
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(CUSIP Number)
American Industries, Inc.
Suite 106
1750 N.W. Front Avenue
Portland, Oregon 97209
(503) 222-0060
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(Name, Address and Telephone Number
of Person Authorized to Receive
Notices and Communications)
With a copy to:
Kenneth D. Stephens, Esq.
Tonkon Torp LLP
1600 Pioneer Tower
888 S.W. Fifth Avenue
Portland, Oregon 97204
(503) 802-2008
APRIL 5, 1999
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(Date of Event Which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
Schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
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CUSIP No. 45244U-104
1. Name of Reporting Person S.S. or I.R.S. Identification No. of Above Person
American Industries, Inc.
IRS Identification Number: 93-0331722
2. Check the appropriate box if a member of a group (a) / /
(b) / /
3. SEC USE ONLY
4. Source of Funds
WC, OO
5. Check box if disclosure of legal proceedings is required pursuant to Items
2(d) or 2(e) / /
6. Citizenship or place of organization
Oregon
7. Sole Voting Power
3,172,099*
8. Shared Voting Power
-0-
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* Includes 150,000 shares that may be acquired by a warrant issued to American
Industries, Inc., dated November 13, 1998; 190,000 shares that may be acquired
by a warrant issued to American Industries, Inc., dated September 17, 1998; and
432,099 shares underlying a Convertible Subordinated Promissory Note issued to
American Industries, Inc., dated September 17, 1998.
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9. Sole Dispositive Power
3,172,099*
10. Shared Dispositive Power
-0-
11. Aggregate amount beneficially owned by each reporting person
3,172,099*
12. Check box if the aggregate amount in row (11) excludes certain shares / /
13. Percent of class represented by amount in row (11)
18.81% percent*
14. Type of Reporting Person
CO
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* Includes 150,000 shares that may be acquired by a warrant issued to American
Industries, Inc., dated November 13, 1998; 190,000 shares that may be acquired
by a warrant issued to American Industries, Inc., dated September 17, 1998; and
432,099 shares underlying a Convertible Subordinated Promissory Note issued to
American Industries, Inc., dated September 17, 1998.
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This Amendment No. 6 to the Schedule 13D dated July 21 (the "Original Schedule
13D"), as amended by Amendment No. 1 dated September 21, 1998, as amended by
Amendment No. 2 dated October 9, 1998, as amended by Amendment No. 3 dated
October 9, 1998, as amended by Amendment No. 4 dated December 4, 1998, as
amended by Amendment No. 5 dated January 19, 1999, is being filed to amend Items
3, 5 and 7 as follows:
Item 3 of the Schedule 13D is hereby amended in its entirety to read as follows:
ITEM 3. SOURCE AND AMOUNT OF FUNDS AND OTHER CONSIDERATION
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The funds used by American to purchase the shares held by it were provided
from the working capital of American, funds advanced through a margin account
with Black & Company, Inc., One S.W. Columbia Street, Portland, Oregon 97258,
and from advances under a working capital line of credit with U.S. Bank (NA),
111 S.W. Fifth Avenue, Portland, Oregon 97204 in the ordinary course of
business. The acquisition of 2,000,000 shares on April 5, 1999, was funded by
the conversion of a previously contracted $950,000 Non-Convertible Subordinated
Promissory Note, dated September 17, 1998. As of the date of this report, funds
invested in the subject security by American, not including funds loaned to the
issuer, aggregated $4,593,964.27.
Item 5 of Schedule 13D is hereby amended in its entirety to read as follows:
ITEM 5. INTERESTS IN SECURITIES OF ISSUER
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Since the filing of Amendment No. 5 to the Original Schedule 13D, American
has acquired 2,000,000 shares of the issuer's Common Stock as follows:
DATE NUMBER OF SHARES PRICE PER SHARE AGGREGATE PRICE
---- ---------------- --------------- ---------------
04/05/99 2,000,000 $0.50 $1,000,000.00
As a result of such acquisition, American holds an aggregate of 3,172,099
shares of the issuer's Common Stock, representing approximately 18.81% of the
issuer's outstanding Common Stock, acquired for an aggregate consideration of
$4,593,964.27. Of such shares, 190,000 shares may be acquired pursuant to the
exercise of a warrant, dated September 17, 1998, held in the name of American
Industries, Inc., at $2.025 per share; 150,000 shares may be acquired pursuant
to the exercise of a warrant, dated November 13, 1998, held in the name of
American Industries, Inc., at $1.28 per share; and 432,099 shares may be
acquired pursuant to a Convertible Subordinated Promissory Note, dated September
17, 1998, held in the name of American Industries, Inc., at $1.0125 per share.
American holds all such shares with sole voting power and sole dispositive
power.
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Item 7 of Schedule 13D is hereby amended in its entirety to read as follows:
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
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Exhibit 1: Imaging Technologies Corporation Common Stock Purchase Warrant
dated as of November 13, 1998.
Exhibit 2: Imaging Technologies Corporation Partial Settlement Agreement
dated as of March 30, 1999.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
DATED: April 14, 1999 AMERICAN INDUSTRIES, INC.
By: /s/ Howard H. Hedinger
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Howard H. Hedinger, Chairman
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 WARRANTHOLDER 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.
November 13,1998
150,000 Warrants
IMAGING TECHNOLOGIES CORPORATION
COMMON STOCK PURCHASE WARRANTS
(Void after 5:00 p.m. California time, November 12, 2001)
Certificate Evidencing 150,000 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, American Industries, Inc. (the "Warrantholder') is entitled to
purchase, at any time after 9:00 a.m. California time on November 13, 1998, and
in any event no later than 5:00 p.m. California time on November 12, 2001 (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 $1.28 per share; provided that such right of exercise shall be
limited by the following vesting schedule:
(i) 150,000 underlying shares of the Warrants shall first vest and become
exercisable on the date of this Agreement herein provided above; and
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.
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(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.
(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 l(a) and this paragraph l(c). The provisions of this
paragraph l(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 (1) 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
2
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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,
11031 Via Frontera, San Diego, California 92127 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 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. 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 Warrantholder hereby
represents, warrants and acknowledges to the Company as follows:
(a) The Warrantholder 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
Warrantholder 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 Warrantholder 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 Warrantholder set forth
herein in order to determine the applicability of such exemptions and the
suitability of the Warrantholder to acquire the Warrants and the Warrant Stock.
(d) The Warrantholder 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
Warrantholder 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 Warrantholder 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.
3
<PAGE>
(c) Share certificates issued upon exercise of the Warrants shall
contain appropriate restrictive legends in connection with federal and state
securities laws.
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 Warrantholder, except to the Warrantholders heirs or
legatees. In the event of the Warrantholders death, the Warrantholders
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 Warrantholder 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 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 Warrantholder, to
such holder at his last known address as it shall appear in the records of the
Company, and if to the Company, at 11031 Via Frontera, 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. No amendment, modification, or supplement of this Certificate shall be
binding unless executed in writing and signed by the Company and the
Warrantholder.
Executed as of November 13, 1998 in San Diego, California.
IMAGING TECHNOLOGIES CORPORATION
By: /s/ Michael K. Clemens
Title: Michael K. Clemens
Chief Financial
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IMAGING TECHNOLOGIES CORPORATION
SUBSCRIPTION FORM
To be Executed by the
Warrantholder In Order to Exercise
Warrants
/ / 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)
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and be delivered to
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and if such number of Common Stock Purchase Warrants shall not be all of the
Common Stock Purchase that a new Warrant Certificate for the balance of such
Common Stock Purchase Warrants be registered in Warrantholder at the address
stated below.
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Date
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Name (Printed)
---------------------------------
Signature
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Address
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Social Security No.
Signature Guaranteed
PARTIAL SETTLEMENT AGREEMENT
($950,000 NOTE CLAIM ONLY)
This Partial Settlement Agreement ("Agreement") is entered into on March
30, 1999 by and between American Industries, Inc., an Oregon corporation
("American") and Imaging Technologies Corporation, a Delaware corporation
("ITEC").
RECITATIONS
1. On or about September 17, 1998, for value received, ITEC executed in favor of
American a non-convertible, subordinated promissory note dated as of September
17, 1998 in the principal amount of Nine Hundred Fifty Thousand Dollars
($950,000) (the "Note"). A copy of the Note is attached hereto as Exhibit A and
by reference incorporated herein.
2. The Note currently remains unpaid and outstanding in the full principal
amount plus accumulated interest.
3. As a result of negotiations between ITEC and American, ITEC and American
desire to allow American to surrender the Note in exchange for issuance of
shares of common stock as provided in this Agreement and to resolve all disputes
relating to the Note while preserving remaining disputes between ITEC and
American.
OPERATIVE PROVISIONS
4. Within five (5) business days following execution of this Agreement,
concurrent with the acts required of American specified in paragraph 5, below,
ITEC shall issue to American Two Million (2,000,000) shares of ITEC fully paid
and nonassessable common stock, valued by the company at $0.50 per share (the
"Shares").
5. Concurrent with the issuance of shares as specified in paragraph 4, above,
American shall mark the Note "canceled", and shall surrender the original Note
to ITEC. If the original Note is lost, destroyed, mutilated or otherwise
incapable of being surrendered to ITEC, American, in lieu of
<PAGE>
delivering the original Note, shall deliver to ITEC at such time its lost
security affidavit and indemnity agreement in form reasonably satisfactory to
ITEC.
6. Within ten (10) working days after the date of this Agreement, ITEC shall
include the Shares in an S3 registration statement with the United States
Securities and Exchange Commission.
7. Except for the rights reserved in this Agreement, American, for itself and
for its officers, directors, shareholders, agents and all other persons or
entities, releases ITEC, its officers, directors, shareholders, agents and all
other persons or entities from the Released Claim set forth in subparagraph 7a,
below, without affecting or releasing any of the Reserved Claims set forth in
paragraph 8b, below.
a. The term "Released Claim" means any claim, cause of demand or action,
liquidated or unliquidated, known or unknown, arising out of or relating to the
Note.
b. The term "Reserved Claims" shall mean all claims of American against
ITEC except for the Released Claims.
8. If suit, action or other proceeding, including, without limitation, any
arbitration or bankruptcy proceeding, shall be necessary to enforce or interpret
any provision in this Agreement, the prevailing party in such proceeding shall
be entitled to recover, in addition to such other sums and relief as the court
or tribunal shall award, such party's reasonable attorneys' fees at trial and on
any appeal therefrom.
9. This Agreement shall be governed in all respects by, and construed in
accordance with, the internal laws of Oregon, without regard to principles of
conflicts of law. Each party hereby submits to the exclusive jurisdiction of the
state and federal court sitting in Multnomah County, Oregon for the adjudication
of any dispute or controversy, or for the perfection or exercise of any right or
remedy, in connection herewith, and hereby waives, and agrees not to assert in
<PAGE>
any such suit, action or proceeding, any claim that such party is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is brought an inconvenient forum or that the venue of such suit,
action or proceeding is improper. 10. American and ITEC each acknowledge that
the settlement memorialized in this Agreement is the result of settlement
negotiations in which each party was represented by counsel, and that each party
enters into this Agreement following discussions with such party's counsel.
AMERICAN INDUSTRIES, INC. IMAGING TECHNOLOGIES CORPORATION
By: By:
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Title: President Title:
