As filed with the Securities and Exchange Commission on March 22, 2000
Registration No. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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VITRIX, INC.
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(Exact name of registrant as specified in its charter)
NEVADA 13-3465289
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
51 West Third Street, Suite 310, Tempe, Arizona 85281
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(Address of principal executive offices, including Zip Code)
1999 Equity Compensation Plan
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(Full title of the plan)
Corporation Trust Company of Nevada, 6100 Neil Road, #500, Reno, Nevada 89511
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(Name and address of agent for service)
(775) 688 - 3000
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered(1) Registered(2) Per Unit(3) Price(3) Fee
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Common Stock 3,000,000 $1.78 $5,340,000 $1,409.76
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(1) The securities to be registered include options to acquire Common Stock.
(2) Pursuant to Rule 416(a), this Registration Statement also covers any
additional securities that may be offered or issued in connection with any
stock split, stock dividend or similar transaction.
(3) Estimated solely for the purpose of determining the registration fee in
accordance with Rules 457(c) and 457(h) of the Securities Act of 1933, as
amended, on the basis of the average of the high and low prices for shares
of Common Stock as reported on the OTC Bulletin Board on March 17, 2000.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and Exchange
Commission are hereby incorporated by reference herein and shall be deemed a
part hereof:
(a) The Annual Report of Vitrix, Inc. ("Vitrix") on Form 10-KSB for the
fiscal year ended June 30, 1999, filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Quarterly Reports of Vitrix for the quarterly periods ended
September 30, 1999 and December 31, 1999;
(c) Definitive Information Statement for the Vitrix 1999 Annual Meeting of
Stockholders on October 6, 1999; and
(d) All other reports filed by Vitrix with the Securities and Exchange
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act since June 30,
1999.
All documents filed by Vitrix pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, after the date hereof and prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing 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 or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES. Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Incorporation and Bylaws provide for the
Registrant to indemnify its directors and officers to the fullest extent
permitted by Section 78.751 of Nevada General Corporate Law.
<PAGE>
Pursuant to 78.751 of Nevada General Corporate Law, directors, officers and
employees of corporations may be indemnified under certain conditions and
subject to certain limitations. Under such law, to the extent that such person
is successful on the merits in a defense of a suit or proceeding brought against
him by reason of the fact that he is or was a director or officer of the
Company, or serves or served any other enterprise or organization at the
Company, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred in connection with such action. If unsuccessful
in defense of a third-party civil suit or a criminal law suit, or if such suit
is settled, such person shall be indemnified under such law against both (1)
expenses, including attorney's fees, and (2) judgments, fines and amounts paid
in settlement if he acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the Company, and, with
respect to any criminal action, had no reasonable cause to believe his conduct
was unlawful. If unsuccessful in defense of a suit brought by or in the right of
the Company, where such suit is settled, such person shall be indemnified under
such law only against expenses (including attorneys' fees) actually and
reasonably incurred in the defense or settlement of such suit if he acted in
good faith and in a manner he reasonably believed to be in, or not opposed to,
the best interests of the Company, except that if such person is adjudged to be
liable in such a suit for negligence or misconduct in the performance of his
duty to the Company, he cannot be made whole even for expenses unless the court
determines that he is fully and reasonably entitled to indemnity for such
expenses.
In addition, the Company's Articles of Incorporation provide that no
director or officer shall be personally liable to the Corporation or its
stockholders for damage for breach for fiduciary duty as a director or officer;
provided, however, that this provision shall not limit the liability of a
director or officer (i) for acts or omissions which involve intentional
misconduct, fraud, or a knowing violation of law, or (ii) for the payment of
dividends in violation of Nevada Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. None.
ITEM 8. EXHIBITS.
Exhibit
Number Description
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4 1999 Equity Compensation Plan
5 The opinion rendered by Squire, Sanders & Dempsey L.L.P.,
counsel for the Registrant
23.1 Consent of Squire, Sanders & Dempsey L.L.P. (included
in Exhibit 5)
23.2 Consent of BDO Seidman, LLP
<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 material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
(2) That, for the purposes of determining any liability under the
Securities Act of 1933, 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 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 Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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 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
offered, 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 of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Tempe, State of Arizona, on March 21, 2000.
VITRIX, INC.
By: /s/ Thomas S. Bednarik
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Thomas S. Bednarik, President and
Chief Executive Officer
By: /s/ Craig J. Smith
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Craig J. Smith, Vice President of Finance and
Administration, and Chief Financial Officer
SPECIAL POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned
constitutes and appoints Thomas S. Bednarik and Craig J. Smith, and each of
them, 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 Form S-8 Registration Statement, and to file the same with
all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting such attorneys-in-fact and agents,
and each of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
and to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that such attorneys-in-fact and agents, or each of
them, 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 date indicated.
Signature Title
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/s/ Thomas S. Bednarik President and Chief Executive Officer
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Thomas S. Bednarik
/s/ Craig J. Smith Vice President of Finance and Administration,
- ---------------------------- and Chief Financial Officer (Principal
Craig J. Smith Financial Officer)
/s/ Todd P. Belfer Chairman of the Board
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Todd P. Belfer
/s/ Michael A. Wolf Director
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Michael A. Wolf
/s/ Bahan Sadegh Vice President of Technology, CTO and Director
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Bahan Sadegh
/s/ Hamid Shojaee Vice President of Research and Development,
- ---------------------------- Secretary and Director
Hamid Shojaee
/s/ Lise M. Lambert Director
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Lise M. Lambert
/s/ William K. Swartz Director
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William K. Swartz
<PAGE>
EXHIBIT INDEX
Exhibit Page or
Number Description Method of Filing
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4 1999 Equity Compensation Plan Incorporated by reference to
Exhibit 10.7 to the Registrant's
Form 10-KSB for the fiscal year
ended June 30, 1999
5 Opinion rendered by Squire, Sanders Filed Herewith
& Dempsey L.L.P., counsel for the
Registrant
23.1 Consent of Squire, Sanders &
Dempsey L.L.P. See Exhibit 5
23.2 Consent of BDO Seidman, LLP Filed Herewith
March 21, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Vitrix, Inc., a Nevada corporation (the "Company"), we
are rendering this opinion in connection with the registration under the
Securities Act of 1933, as amended (the "1993 Act"), of up to 3,000,000 shares
of Common Stock of the Company (the "Shares") which may be issued pursuant to
the Company's 1999 Equity Compensation Plan.
We have examined all instruments, documents, and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the genuineness and authority of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to the originals of all documents submitted to us as copies.
Based on such examination, we are of the opinion that the 3,000,000 shares
of Common Stock which may be issued under the 1999 Equity Compensation Plan are
duly authorized shares of the Company's Common Stock, and, when issued against
receipt of the consideration therefor in accordance with the provisions of the
1999 Equity Compensation Plan, will be validly issued, fully paid and
non-assessable. We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement referred to above, and the use of our name whenever
it appears in said Registration Statement.
Respectfully submitted,
/s/ Squire, Sanders & Dempsey L.L.P.
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
Vitrix, Inc.
51 West Third Street, Suite 310
Tempe, Arizona 85281
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated July 28,
1999, relating to the financial statements of Vitrix, Inc. (formerly FBR Capital
Corporation) appearing in the Company's Annual Report on Form 10-KSB for the
year ended June 30, 1999.
/s/ BDO Seidman, LLP
Los Angeles, California
March 21, 2000
