<PAGE>
As filed with the Securities and Exchange Commission on February 25, 2000
Reg. No. 33
================================================================================
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 registrant as specified in its charter)
Delaware 33-0021693
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
15175 Innovation Drive
San Diego, California 92128
(619) 613-1300
(Address of principal executive offices)
____________________________________________
ADVISORY AND CONSULTING AGREEMENT
(Full title of plan)
______________________
Brian Bonar
President
15175 Innovation Drive
San Diego, CA 92128
(Name and address of agent for service)
(619) 613-1300
(Telephone number, including area code of agent for service)
Copy to:
Owen Naccarato, Esq.
31 Grenache
Irvine, CA 92614
(949) 300-2487
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price Aggregate offering Amount of
to be registered Registered per share Price Registration fee
==========================================================================================================
<S> <C> <C> <C> <C>
Common Stock
($.005 par value) 500,000 .875 $437,500 $115.50
==========================================================================================================
</TABLE>
Estimated solely for the purpose of determining the amount of registration fee
and pursuant to Rules 457(c) and 457(h) of the General Rules and Regulations
under the Securities Act of 1993, based upon the exercise price of 500,000
shares for consultants at $.87.5 per share.
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PART I
INFORMATION REQUIRED IN THIS SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part 1 to be contained in the Section
10(a) prospectus is omitted from the registration statement in
accordance with Rule 428 under the Securities Act of 1933 and the
Note to Part I of Form S-8.
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Imaging Technologies Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference herein:
(a) the Company's annual report on Form 10-K for the fiscal year
ended June 30, 1998 and June 30, 1999;
(b) all other reports filed by the Company pursuant to Section 13(a)
or Section 15 (d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since June 30, 1999 through the date hereof;
(c) 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, and
(d) any document filed by the Company with the Commission pursuant to
Sections 13(a), 13( c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof, but prior to the filing of a post-effective amendment to this
Registration Statement which Indicates that all shares of Common Stock
registered hereunder have been sold or that deregisters all such shares of
common Stock then remaining unsold, such documents being deemed to be
incorporated by reference herein and to be 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
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
provides, in general, that a corporation incorporated under the laws of the
State of Delaware, such as the registrant, may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than a derivative action by or in
the right of the corporation) by reason of the fact that such person is or was a
3
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director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another enterprise, against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. In the case of a derivative action, a Delaware corporation
may indemnify any such person against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or any other court in which such
action was brought determines such person is fairly and reasonable entitled to
indemnity for such expenses.
Our certificate of incorporation provides that directors shall not be
personally liable for monetary damages to our company or our stockholders for
breach of fiduciary duty as a director, except for liability resulting from a
breach of the director's duty of loyalty to our company or our stockholders,
intentional misconduct or willful violation of law, actions or inactions not in
good faith, an unlawful stock purchase or payment of a dividend under Delaware
law, or transactions from which the director derives improper personal benefit.
Such limitation of liability does not affect the availability of equitable
remedies such as injunctive relief or rescission. Our certificate of
incorporation also authorizes us to indemnify our officers, directors and other
agents to the fullest extent permitted under Delaware law. Our bylaws provide
that the registrant shall indemnify our 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 our company
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.
This means that our certificate of incorporation provides that a
director is not personally liable for monetary damages to us or our stockholders
for breach of his or her fiduciary duties as a director. A director will be held
liable for a breach of his or her duty of loyalty to us or our stockholders, his
or her intentional misconduct or willful violation of law, actions or in actions
4
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not in good faith, an unlawful stock purchase or payment of a dividend under
Delaware law, or transactions from which the director derives an improper
personal benefit. This limitation of liability does not affect the availability
of equitable remedies against the director including injunctive relief or
rescission. Our certificate of incorporation authorizes us to indemnify our
officers, directors and other agent to the fullest extent permitted under
Delaware law. 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 TIG
Insurance that contains an aggregate limit of liability of $3,000,000.
Furthermore, we maintain an excess directors and officers liability policy with
Philadelphia Insurance Company for liability in excess of $3,000,000 that
contains an aggregate limit of liability of $3,000,000 and also an excess
directors and officers liability policy with Fireman's Fund for liability in
excess of $4,000,000 that contains an aggregate limit of $6,000,000 and Royal
Indemnity Insurance for $5,000,000 in excess of $10,000,000. All of these
policies expire on October 1, 2000.
Experts
The consolidated financial statements of the company appearing in the
Company's Annual Report (Form 10-K) for the year ended June 30, 1999 have been
audited by Boros & Farrington APC, independent public accounts, as set forth in
their report thereon included therein and incorporated herein by reference.
Reference is made to said report, which includes explanatory paragraphs that
describe the Company's ability to continue as a going concern, discussed in Note
1 to the Company's Consolidated Financial Statements. Such financial statements
are incorporated herein in reliance upon the reports of Boros & Farrington APC,
pertaining to such financial statements (to the extent filed with the
Commission) given upon the authority of such firm as experts in giving such
reports.
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 9.
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Item 9. Undertakings
(a) The undersigned registrant hereby undertakes::
(1) To file during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the securities Act 1933:
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration
Statement:
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraph (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraph is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15 (d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendments shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by mean of a post-effective amendment
any of the securities being registered hereunder that remain unsold at the
termination of the offering.
(b) The undersigned Company hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of the
company's annual report pursuant to Section 13 (a) or Section 15 (d) of the
Securities and 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 may be permitted to directors, officers and controlling
persons of the Company pursuant to the above-described provisions or otherwise,
the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of
6
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expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
7
<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 a 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 February 25, 2000.
Imaging Technologies Corporation
By /s/ Brian Bonar
----------------------------------
Brian Bonar, President & Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brian Bonar and Philip J. Englund, each of them
acting individually as his attorney-in-fact, each with full power of
substitution and resubstitution, for him in any and all capacities, to sign any
and all amendments to this Registration Statement, and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith 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, or their 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.
Signature Title Date
- --------- ----- ----
/s/ Brian Bonar Chairman of the Board of Directors February 25, 2000
- ---------------
Brian Bonar President and Chief Executive
Officer and Director and (acting)
Chief Financial Officer and Chief
Accounting Officer
/s/ Keith Meadows Director February 25, 2000
- -----------------
Keith Meadows
/s/ Robert A. Dietrich Director February 25, 2000
- ----------------------
Robert A. Dietrich
8
<PAGE>
INDEX TO EXHIBITS
Exhibit Sequentially
NO. Description Numbered Pages
--- ----------- --------------
4.1 Advisory and Consulting Agreement
5.1 Opinion of Counsel, regarding the legality of the securities
registered hereunder.
23.1 Consent of Boros & Farrington PC.
23.2 Consent of Counsel (included as part of Exhibit 5.1)
24 Power of Attorney (Contained within Signature Page)
9
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Exhibit 4.1
Advisory and Consulting Agreement
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of
February 21, 2000 by and between Richard Kaplan, P.O. Box 43272, Harnof
Jerusalem, Israel ("Consultant") and Imaging Technology Corporation with offices
at 15175 Innovation Drive, San Diego, CA 92128 (the "Company").
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting
services relating management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
-----------
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
----
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on February 20, 2001, unless earlier terminated
in accordance with paragraph 8 herein or extended as agreed to between the
parties.
3. SERVICES.
--------
During the term of this Agreement, Consultant shall provide advice to
undertake for and consult with the Company concerning the marketing, consulting,
strategic planning, and corporate organization and structure in connection with
the evaluating the prospective international operation of the businesses of the
Company, expansion of services in the international arena, acquisitions and
business opportunities in the international arena. Consultant thus agrees to
provide on a timely basis the following enumerated services plus any additional
services contemplated thereby:
(a) The implementation of short-range and long-term strategic
planning to develop the Company's products and services at the
international level;
(b) The implementation of a marketing program to enable the
Company to broaden the markets for its services and promote the
image of the Company and its products and services at the
international level; and
(c) The identification, evaluation, structuring, negotiating and
closing of
<PAGE>
joint ventures, strategic alliances, business acquisitions and
advice with regard to the ongoing managing and operating of such
acquisitions upon consummation thereof at the international
level.
4. DUTIES OF THE COMPANY.
---------------------
The Company shall provide Consultant, on a regular and timely basis,
with all approved data and information about it, its subsidiaries, its
management, its products and services and its operations as shall be reasonably
requested by Consultant, and shall advise Consultant of any facts which would
affect the accuracy of any data and information previously supplied pursuant to
this paragraph. The Company shall promptly supply Consultant with full and
complete copies of all financial reports, all fillings with all federal and
state securities agencies; with full and complete copies of all stockholder
reports; with all data and information supplied by any financial analyst, and
with all brochures or other sales materials relating to its products or
services.
COMPENSATION.
------------
The Company will immediately grant Consultant the option to purchase
500,000 shares of the Company's Common Stock valued at $.87.5 per share, which
options shall expire on February 20, 2001 at 5:00 P.M. P.S.T. Consultant in
providing the foregoing services, shall not be responsible for any out-of-pocket
costs, including, without limitation, travel, lodging, telephone, postage and
Federal Express charges.
6. REPRESENTATION AND INDEMNIFICATION.
----------------------------------
The Company shall be deemed to have been made a continuing
representation of the accuracy of any and all facts, material information and
data which it supplies to Consultant and acknowledges its awareness that
Consultant will rely on such continuing representation in disseminating such
information and otherwise performing its advisory functions. Consultant in the
absence of notice in writing from the Company, will rely on the continuing
accuracy of material, information and data supplied by the Company. Consultant
represents that he has knowledge of and is experienced in providing the
aforementioned services.
7. MISCELLANEOUS.
-------------
Termination: This Agreement may be terminated by either Party upon
-----------
written notice to the other Party for any reason which shall be effective five
(5) business days from the date of such notice. This Agreement shall be
terminated immediately upon written notice for material breach of this
Agreement.
Modification: This Consulting Agreement sets forth the entire
------------
understanding of the Parties with respect to the subject matter hereof. This
Consulting Agreement may be amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given hereunder shall
-------
be in writing and shall be mailed or otherwise delivered in person or by
facsimile transmission at the address of such Party set forth above or to such
other address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
Waiver: Any waiver by either Party of a breach of any provision of this
------
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
<PAGE>
Assignment: The Options under this Agreement are assignable at the
----------
discretion of the Consultant.
Severability: If any provision of this Consulting Agreement is invalid,
------------
illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
Disagreements: Any dispute or other disagreement arising from or out of
-------------
this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in San Diego, CA. The interpretation and the enforcement of this Agreement
shall be governed by California Law as applied to residents of the State of
California relating to contracts executed in and to be performed solely within
the State of California. In the event any dispute is arbitrated, the prevailing
Party (as determined by the arbiter(s)) shall be entitled to recover that
Party's reasonable attorney's fees incurred (as determined by the arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
IMAGING TECHNOLOGY CORP. CONSULTANT
/s/ Brian Bonar /s/ Richard Kaplan
- ------------------------ ------------------------
Brian Bonar Richard Kaplan
President and CEO
<PAGE>
Exhibit 5.1
Owen M. Naccarato
Attorney at Law
19600 Fairchild, Suite 260
Irvine, CA 91612
Office: (818) 255-4996 Fax: (818) 255-4997
- --------------------------------------------------------------------------------
February 24, 2000
Imaging Technologies Corporation
Re: Opinion of Counsel - Registration Statement on Form S-8
Gentleman:
I have acted as counsel for Imaging Technologies Corporation (the
"Company"), in connection with the preparation and filing of the Company's
Registration statement on Form S-8 under the Securities Act of 1933, as amended,
(the "Registration Statement"), relating to 500,000 shares of the Company's
common stock, $.005 par value, (the "common stock"), issuable pursuant to the
Company's Advisory and Consultants Agreement, (the"Plan").
I 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 my satisfaction, of such records and 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 my
judgement are necessary or appropriate to enable me to render the opinions
expressed below.
Based on the foregoing examination, I am of the opinion that the shares of
Common Stock issuable with the Plan are duly authorized and, when issued in
accordance with the Plan, will be validly issued, fully paid and nonassessable.
Further, I consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Owen Naccarato
------------------
Owen Naccarato, Esq.
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated October 5, 1999 appearing in Imaging
Technologies Corporation's Annual Report on Form 10-K for the fiscal year ended
June 30, 1999.
/s/ Boros & Farrington
- ----------------------
Boros & Farrington PC
San Diego, California
February 25, 2000
