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As filed with the Securities and Exchange Commission on September 27, 2000
Reg. No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
IMAGING DIAGNOSTIC SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Florida 22-2671269
(State of incorporation) (I.R.S. Employer Identification Number)
6531 Northwest 18 Court
Plantation, Florida 33313
(Address, including zip code, of Principal Executive Offices)
1995 Incentive Stock Option Plan
2000 Non-Statutory Stock Option Plan
(Full titles of the Plans)
Linda B. Grable, President
Imaging Diagnostic Systems, Inc.
6531 Northwest 18 Court
Plantation, Florida 33313
(Name and address of agent for service)
(954) 581-9800
(Telephone number, including area code, of agent for service)
copies to:
ROBERT B. MACAULAY, ESQ.
Mitrani, Rynor, Adamsky, Macaulay & Zorrilla, P.A.
One Southeast Third Avenue, Suite 2200
Miami, Florida 33131
Tel: (305) 358-0050
Fax: (305) 358-0550
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
---------------------- ------------------- --------------------- ------------------------- ----------------------
<S> <C> <C> <C> <C>
Title of Securities Amount to be Proposed Offering Proposed Maximum Amount of
to be Registered Registered (2)(3) Price Per Share (4) Aggregate Offering Price Registration Fee
---------------------- ------------------- --------------------- ------------------------- ----------------------
Common Stock 3,991,066 (1) $0.487 $1,945,227 $589
No Par Value (2)
---------------------- ------------------- --------------------- ------------------------- ----------------------
Common Stock 3,000,000 (1) $1.48 $4,440,000 $1,345
No Par Value (3)
---------------------- ------------------- --------------------- ------------------------- ----------------------
Totals 6,991,066 $0.91 $6,385,227 $1,934
---------------------- ------------------- --------------------- ------------------------- ----------------------
</TABLE>
(1) Pursuant to Rule 416, this Registration Statement also covers such
additional shares of Imaging Diagnostic Systems, Inc.'s (the "Company")
common stock, no par value (the "Common Stock") as may become issuable
pursuant to the anti-dilution provisions of the subject plans.
(2) Of the registered shares, 3,991,066 are issuable pursuant to the Company's
1995 Incentive Stock Option Plan.
(3) Of the registered shares, 3,000,000 are issuable pursuant to the Company's
2000 Non-Statutory Stock Option Plan.
(4) Estimated solely for the purpose of calculating the registration fee for
this registration statement and computed in accordance with Rule 457(h)(1)
on the basis of (i) with respect to the 3,991,066 shares underlying options
granted under the 1995 Incentive Stock Option Plan, the weighted average of
the exercise prices, and (ii) with respect to the 3,000,000 shares
underlying options granted in the 2000 Non-Statutory Stock Option Plan, the
average of the exercise prices.
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Explanatory Note
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participating employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such
documents are not required to be and are not filed with the Securities and
Exchange Commission (the "Commission") either as part of this registration
statement on Form S-8 (the "Registration Statement"), or as a prospectus or
prospectus supplement pursuant to Rule 424. These documents and the documents
incorporated by reference into this Registration Statement pursuant to Item 3 of
Part II of this Registration Statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated by reference into this
Registration Statement and are made a part hereof:
(a) The Company's annual report on Form 10-KSB for the year
ended June 30, 2000.
(b) The description of the Company's Common Stock contained in
its Registration Statement on Form 10-SB declared effective on July 14, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the date of this Registration Statement and prior to the filing of
a post-effective amendment indicating that all of the securities offered hereby
have been sold, or deregistering all such securities then remaining unsold,
shall be deemed to be incorporated by reference and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is incorporated or deemed incorporated by reference herein
modifies or supersedes such statement. Any such document so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
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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 607.0850 of the Florida Business Corporation Act empowers a
Florida corporation to indemnify any person who was or is a party to any
proceeding (other than an action by or in the right of such corporation) by
reason of the fact that such person is or was a director, officer, employee, or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against liability
incurred in connection with such proceeding, including an appeal thereof, if
such person acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, such person had no reasonable cause to believe
his conduct was unlawful. A Florida corporation may indemnify such person
against expenses including amounts paid in settlement (not exceeding in the
judgment of the board of directors, the estimated expense of litigating the
proceeding to conclusion) actually and reasonably incurred by such person in
connection with actions brought by or in the right of the corporation to procure
a judgment in its favor under the same conditions set forth above, if such
person acted in good faith and in a manner such person believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification is permitted 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 to the extent the court in which such action or suit was brought or
other court of competent jurisdiction shall determine upon application that, in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court shall deem proper.
To the extent such person has been successful on the merits or
otherwise in defense of any action referred to above, or in defense of any
claim, issue or matter therein, the corporation must indemnify such person
against expenses, including counsel (including those for appeal) fees, actually
and reasonably incurred by such person in connection therewith. The
indemnification and advancement of expenses provided for in, or granted pursuant
to, Section 607.0850 is not exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the articles of
incorporation of the corporation or any by-law, agreement, vote of shareholders
or disinterested directors, or otherwise. Section 607.0850 also provides that a
corporation may maintain insurance against liabilities for which indemnification
is not expressly provided by the statute.
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Article XII of the Company's By-Laws provide for indemnification of the
directors, officers, employees and agents of the Company (including advancement
of expenses) to the fullest extent permitted under Florida law. In addition, the
Company has contractually agreed to indemnify its directors and officers to the
fullest extent permitted under Florida law.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
as disclosed above, the Company has been informed that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Reference is made to the Exhibit Index which is included in this
Registration Statement following the Signature Page.
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; (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 hereof)
which, individually or in the aggregate, represent a fundamental change in the
information 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15 (d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
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(2) That, for the purpose of determining liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for the purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and each filing of the Plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
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 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 Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets 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 Plantation, Florida, on this 26th day of September,
2000.
IMAGING DIAGNOSTIC SYSTEMS, INC.
By: /s/ Linda B. Grable
Linda B. Grable, Chairman
of the Board and President
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Linda B. Grable Chairman of the Board September 26, 2000
Linda B. Grable and President
/s/ Richard J. Grable Chief Executive Officer September 26, 2000
Richard J. Grable (principal executive officer)
and Director
/s/ Allan L. Schwartz Executive Vice President, September 26, 2000
Allan L. Schwartz Chief Financial Officer and
Director (principal financial
and accounting officer)
/s/Irving H. Schwab Director September 26, 2000
Irving H. Schwab
/s/ David E. Danovitch Director September 26, 2000
David E. Danovitch
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EXHIBIT INDEX
Exhibit
Number Description
5 Opinion of Mitrani, Rynor, Adamsky, Macaulay & Zorrilla, P.A.
10.3 1995 Incentive Stock Option Plan as filed on July 14, 1995, as Exhibit
10(b) to the Company's registration statement on Form 10-SB, is
incorporated by reference.
10.29 2000 Non-Statutory Stock Option Plan, as filed on September 15, 2000 with
the SEC as Exhibit 10.29 to the Company's Annual Report on Form 10-KSB
for the year ended June 30, 2000, is incorporated by reference.
23.1 Consent of Mitrani, Rynor, Adamsky, Macaulay & Zorrilla, P.A. (contained
in Exhibit 5 of this Registration Statement)
23.2 Consent of Margolies, Fink and Wichrowski, Certified Public Accountants
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Exhibit 5
LAW OFFICES
MITRANI, RYNOR, ADAMSKY, MACAULAY & ZORRILLA, P.A.
2200 SUNTRUST INTERNATIONAL CENTER
ONE SOUTHEAST THIRD AVENUE
MIAMI, FLORIDA 33131
E-mail: [email protected] Telephone: 305-358-0050
Telecopier: 305-358-9617
September 27, 2000
Imaging Diagnostic Systems, Inc.
6531 Northwest 18 Court
Plantation, Florida 33313
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Imaging Diagnostic Systems, Inc., a Florida
corporation (the "Company"), in connection with the preparation and filing of
the Registration Statement on Form S-8 (the "Registration Statement") filed with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"), relating to 6,991,066 shares of
the Company's Common Stock, no par value (the "Common Stock"), 3,991,066 of
which are offered pursuant to the Company's 1995 Incentive Stock Option Plan
(the "1995 Plan") and 3,000,000 of which are offered pursuant to the Company's
2000 Non-Statutory Stock Option Plan (collectively, the "Plans"). You have
requested the opinion of this firm with respect to certain legal aspects of the
proposed offering of Common Stock pursuant to the Plans.
We have examined original, photostatic or certified copies of such
records of the Company, including the Plans, the Articles of Incorporation, the
Bylaws and minutes, the Registration Statement and other documents as we have
deemed relevant and necessary for purposes of the opinions hereinafter set
forth. In such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents and instruments submitted to us as originals
and the conformity to authentic originals of all documents and instruments
submitted to us as certified or photostatic copies. As to various questions of
fact material to our opinions, we have relied upon representations made to us by
various officers and directors of the Company and we have not conducted or
received independent verification of those facts.
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Based upon the foregoing and subject to the comments and exceptions
noted below, we are of the opinion that (i) the Company presently has available
at least 6,991,066 authorized but unissued shares and/or treasury shares of
Common Stock from which may be issued the 6,991,066 shares of Common Stock
proposed to be sold pursuant to the Plans, and (ii) assuming that the Company
maintains an adequate number of authorized but unissued shares and/or treasury
shares of Common Stock available for issuance as set forth in the Plans and
assuming that the consideration for the shares of Common Stock issued is
actually received by the Company as provided in the Plans, then the shares of
Common Stock issued pursuant to the Plans will be legally and validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the
Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Robert B. Macaulay
MITRANI, RYNOR, ADAMSKY,
MACAULAY & ZORRILLA, P.A.
10
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Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Imaging Diagnostic Systems, Inc. of our report dated
August 11, 2000, which appears on page F-1 of Imaging Diagnostic Systems, Inc.
Form 10-KSB, for the year ended June 30, 2000.
/s/ Margolies, Fink and Wichrowski
MARGOLIES, FINK AND WICHROWSKI
Pompano Beach, Florida
September 26, 2000
