As filed with the Securities and Exchange Commission on July 2, 1999
Registration No. 333- _____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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FOCUS ENHANCEMENTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-11860 04-3186320
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification
Number)
600 Research Drive
Wilmington, Massachusetts 01887
(978) 988-5888
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Christopher P. Ricci
Senior Vice President and General Counsel
FOCUS Enhancements, Inc.
600 Research Drive
Wilmington, Massachusetts 01887
(978) 988-5888
(Name, address, including zip code, telephone number,
including area code, of agent for service)
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Approximate date of commencement of proposed sale to the public: From time to
time or at one time after the effective date of the Registration Statement as
determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Amount to Proposed Maximum Amount of
Title of Each Class of Securities to Be Registered Price to Public Offering Price Registration
be Registered
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per 372,796 $1.0548 393,225.22 $109.32
share(1)
<FN>
(1) The Common Stock being registered consists of (i) 122,796 shares issued to Red & White Enterprises, Inc., f/k/a PC
Video Conversion, Inc., (ii) 100,000 shares issuable upon exercise of common stock purchase warrants issued to
Silicon Valley Bank ("SVB") in connection with the restructuring of the Company's debt to SVB; (iii) 100,000 shares
issuable upon exercise of common stock purchase warrants issued to Brian Swift of Securities Research, Inc. in
connection with financial consulting performed by Securities Research, Inc.; and (iv) 50,000 shares issuable upon
exercise of common stock purchase warrants issued to Edward Price of PAGG Corporation issued in connection with the
restructuring of the Company's debt to PAGG Corporation (collectively, the "Selling Shareholders").
(2) The registration fee is calculated pursuant to Rule 457(c) of the Securities Act of 1933 by taking the average of the
bid and asked prices of the registrant's Common Stock, $.01 par value per share, on June 29, 1999 as reported on the
NASDAQ SmallCap Market.
</FN>
</TABLE>
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
The information in this prospectus is not complete and may be changed. The
selling shareholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not an offer to
buy these securities in any state where the offer and sale is not permitted.
Subject to Completion, Dated July 2, 1999
REOFFER
PROSPECTUS
FOCUS ENHANCEMENTS, INC.
372,796 Shares of Common Stock
The shareholders of FOCUS Enhancements, Inc. described below are offering and
selling up to 372,796 shares of FOCUS common stock under this prospectus.
The selling shareholders obtained their shares of FOCUS stock in three distinct
and separate transactions. On July 29, 1998, Red & White Enterprises, Inc.
received 122,796 shares in connection with the acquisition of the assets of Red
& White Enterprises, Inc., then known as PC Video Conversion, Inc., by FOCUS. On
February 22, 1999, the Company issued a common stock purchase warrant to Brian
Swift of Securities Research, Inc. for 100,000 shares issuable upon exercise.
The warrant was issued in connection with financial consulting performed by
Securities Research, Inc. Also, on February 22, 1999, the Company issued a
common stock purchase warrant to Edward Price of PAGG Corporation for 50,000
shares issuable upon exercise. The warrant was issued in connection with the
restructuring of debt owed to PAGG Corporation. On March 31, 1999, Silicon
Valley Bank restructured our debt to Silicon Valley Bank. As part of the
restructuring of debt, we issued to Silicon Valley Bank a common stock purchase
warrant entitling Silicon Valley Bank to 100,000 shares of common stock issuable
upon exercise. The total number of shares that may be sold under this prospectus
by the selling shareholders will be subject to the discretion of the selling
shareholders.
The selling shareholders may offer their FOCUS stock through public transactions
executed through one or more broker-dealers at prevailing market prices, carried
out through the NASDAQ SmallCap Market or one or more stock exchanges (if the
shares are listed on an exchange at any time in the future), or in private
transactions directly with purchasers or at privately negotiated prices.
FOCUS stock is listed on the NASDAQ SmallCap Market with the ticker symbol:
"FCSE." On July ____, 1999, the closing price of one share of FOCUS common stock
on the NASDAQ SmallCap Market was $_____.
Our principal executive offices are located at 600 Research Drive, Wilmington,
Massachusetts, 01887, and our telephone number is (978) 988-5888.
----------------------
Neither the Securities and Exchange Commission, nor any state securities
commission, has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
----------------------
AN INVESTMENT IN THESE SECURITIES INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" AT PAGES 2 AND 3
----------------------
The date of this prospectus is July __, 1999.
----------------------
<PAGE>
RISK FACTORS
An investment in the securities offered under this prospectus involves a high
degree of risk and should only be purchased by investors who can afford to lose
their entire investment. The following factors should be considered carefully in
evaluating the Company and our business.
Future Capital Needs. Historically, we have had to meet our short- and long-term
cash needs through debt and the sale of common stock in private placements in
that cash flow from operations has been insufficient. For example, during 1998,
we received $2,827,355 in net proceeds from private offerings of common stock
and $7,003,963 from the exercise of common stock options and warrants. Our
future capital requirements will depend on many factors, including cash flow
from operations, continued progress in our research and development programs,
competing technological and market developments, and our ability to market the
Company's products successfully. During 1999, we may be required to raise
additional funds through equity or debt financing, and there can be no assurance
that sufficient funds will be raised. Any equity financing could result in
dilution to our then-existing stockholders. Sources of debt financing may result
in higher interest expense. Any financing, if available, may be on terms
unfavorable to us. If adequate funds are not available, we may be required to
curtail our activities significantly.
Reliance on Major Customers. For the three months ended March 31, 1999,
approximately 40% of our revenues were derived from sales to a major
distributor, approximately 6% of our revenues were derived from sales to a major
retailer, and approximately 9% of our revenues were derived from sales to a
major consumer electronics manufacturer. Management expects that sales to these
customers will continue to represent a significant percentage of our future
revenues. We do not have long-term contracts requiring any customer to purchase
any minimum amount of products. There can be no assurance that we will continue
to receive orders of the same magnitude as in the past from existing customers
or we will be able to market our current or proposed products to new customers.
The loss of any major customer by the Company would have a material adverse
effect on our business as a whole.
History of Operating Losses. The Company has experienced limited profitability
since its inception and at March 31, 1999, had an accumulated deficit of
$35,095,945. We incurred net losses of $12,787,324 and $1,986,079 for the years
ended December 31, 1998 and 1997, respectively. We had net income of $102,990
and $364,748 for the first three months of 1999 and 1998, respectively. There
can be no assurance that we will be profitable in 1999.
Reliance on Two Vendors. Through the first three months of 1999, approximately
90% of the components for our products were secured and manufactured on a
turnkey basis by two vendors. In the event that either vendor were to cease
supplying to us, we would experience at least short-term delays in the shipment
of our products, while management arranged for production by alternative
vendors.
Technological Obsolescence. The computer peripheral markets are characterized by
extensive research and development and rapid technological change resulting in
short product life cycles. Development by others of new or improved products,
processes or technologies may make our products or proposed products obsolete or
less competitive. We will be required to devote substantial efforts and
financial resources to enhance our existing products and to develop new
products. There can be no assurance that we will succeed with these efforts.
Competition. The computer peripheral markets are extremely competitive. We
currently compete with other developers of video conversion products and with
video-graphic integrated circuit developers. Many of our competitors have
greater market recognition and greater financial, technical, marketing and human
resources than we have. Although we are not currently aware of any announcements
by our competitors that would have a material impact on us or our operations,
there can be no assurance that we will be able to compete successfully against
existing companies or new entrants to the marketplace.
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<PAGE>
Channel Acceptance. Sales of our products through the Office Super Store is a
sales channel with which we have had limited success. We have limited our use of
this channel to the best performing stores and are making substantial
investments in marketing and inventory to supply this channel. However, this is
an unproven channel and there can be no assurance that we will be able to
compete successfully in this channel.
Component Supply Problems. We purchase all of our parts from outside suppliers
and from time to time experience delays in obtaining some components or
peripheral devices. We attempt to reduce the risk of supply interruption by
evaluating and obtaining alternative sources for various components or
peripheral devices. However, there can be no assurance that supply shortages
will not occur in the future which could significantly increase the cost, or
delay shipment of, our products, which in turn could adversely affect our
results of operations.
Protection of Proprietary Information. Although we have filed six patent
applications and expect to file two additional patent applications in 1999 with
respect to our PC-to-TV video-graphics products, we currently only have one
patent issued. We treat our technical data as confidential and rely on internal
non-disclosure safeguards, including confidentiality agreements with employees,
and on laws protecting trade secrets to protect our proprietary information.
There can be no assurance that these measures will adequately protect the
confidentiality of our proprietary information or that others will not
independently develop products or technology that are equivalent or superior to
those of the Company. While it may be necessary or desirable in the future to
obtain licenses relating to one or more of our products or relating to current
or future technologies, there can be no assurance that we will be able to do so
on commercially reasonable terms.
THE COMPANY
FOCUS Enhancements, Inc. (which we refer to as "FOCUS" or the "Company" in this
prospectus) is an industry leader in the development and marketing of advanced,
proprietary multimedia video scan conversion products for the rapidly
converging, multi-billion dollar computer and television industries. FOCUS'
products, which are sold globally through Original Equipment Manufacturers
(OEMs) and resellers, merge computer generated graphics and television displays
for presentations, training, education, video teleconferencing, internet viewing
and home gaming markets. In addition, the Company is working to develop a family
of products that will enable the current installed base of televisions, VCRs,
and camcorders to remain functional in upcoming HDTV environments. It is FOCUS'
objective to design, develop, and deliver quality video conversion products to
the global marketplace.
USE OF PROCEEDS
The warrants entitle the selling shareholders to purchase up to an aggregate of
250,000 shares of Focus common stock. In the case of the warrant issued to
Silicon Valley Bank, the purchase price is $1.70 per share and the warrant must
be exercised on or before March 26, 2004. In the case of the warrants issued to
Brian Swift and Edward Price, the purchase price is $1.06 per share and the
warrants must be exercised on or before February 22, 2004. FOCUS will receive
the proceeds of any exercise of the warrants. However, all net proceeds from the
sale of the FOCUS shares being offered under this prospectus will go to the
selling shareholders. Accordingly, we will not receive any proceeds from sales
of these shares. The expenses of registration of the shares being offered under
this prospectus will be paid by the Company.
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<PAGE>
SELLING SHAREHOLDERS
Under a Registration Rights Agreement dated as of July 29, 1998 between FOCUS
and a certain selling shareholder, we agreed to register the shares issued to
that selling shareholder and to use our best efforts to keep the registration
statement effective for 12 months, or until all of the registered shares are
sold under the registration statement, whichever comes first. Each of the
remaining selling shareholders received so-called "piggy-back" registration
rights entitling them to have their shares registered the next time a
registration statement is filed. Our registration of the FOCUS shares being
offered under this prospectus does not necessarily mean that the selling
shareholders will sell all or any of the shares.
The selling shareholders are composed of the following:
o Red & White Enterprises, Inc. (formerly known as PC Video Conversion,
Inc.), which received 122,796 shares of common stock in connection with our
purchase of substantially all of its assets.
o Silicon Valley Bank that received a warrant to purchase 100,000 shares of
common stock in connection with its agreeing to restructuring of the debt
owed to it by the Company.
o Brian Swift of Securities Research, Inc., who received a warrant to
purchase 100,000 shares of common stock in connection with his firm's
providing financial services to the Company.
o Edward Price of PAGG Corporation, who received a warrant to purchase 50,000
shares of common stock in connection with the restructuring of debt owed by
the Company to PAGG Corporation.
One or more of the selling shareholders identified above may choose to donate or
transfer as gifts some or all of the shares that may otherwise be sold directly
by the selling shareholder or the selling shareholder may choose to transfer
some or all of these shares for no value to one or more affiliated persons. If
any of the shares are so transferred by any of the selling shareholders listed
above, then the persons who receive the shares would constitute additional
selling shareholders under this prospectus.
PLAN OF DISTRIBUTION
The selling shareholders may offer their shares at various times in one or more
of the following transactions:
o on the NASDAQ SmallCap Market
o on any United States securities exchange where our common stock may be
listed in the future
o in the over-the-counter market
o in privately negotiated transactions directly with purchasers
o in a combination of any of the above transactions
The selling shareholders may sell their shares at market prices prevailing at
the time of sale, at prices related to such prevailing market prices, at
negotiated prices or at fixed prices. The selling shareholders may use
broker-dealers to sell their shares. If this happens, broker-dealers will either
receive discounts or commissions from the selling shareholders, or they will
receive commissions from purchasers of shares for whom they acted as agents.
The selling shareholders may also pledge shares to broker-dealers or other
financial institutions, and, upon a default relative to any selling shareholder
who has so pledged any such shares, the broker-dealer or other financial
institution holding the pledged shares may effect sales of the pledged shares
pursuant to this prospectus (as supplemented or amended to reflect such
transaction). In addition, any shares that
4
<PAGE>
qualify for sale pursuant to the SEC's Rule 144 may be sold under Rule 144
rather than pursuant to this prospectus.
In effecting sales, brokers, dealers or agents engaged by any selling
shareholder may arrange for other brokers or dealers to participate. Brokers,
dealers or agents may receive commissions, discounts or concessions from the
selling shareholder in amounts to be negotiated prior to the sale. Any such
selling shareholder and such brokers or dealers and any other participating
brokers or dealers may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933 in connection with such sales, and any such commissions,
discounts or concessions may be deemed to be underwriting discounts or
commissions under the Securities Act of 1933. One or more of the selling
shareholders may indemnify broker-dealers that participate in transactions
involving the sale of the shares against certain liabilities, including
liabilities arising under the Securities Act of 1933.
In order to comply with the securities laws of certain states, if applicable,
the shares must be sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain states the shares may not
be sold unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is
available and is complied with.
FOCUS has advised the selling shareholders that the anti-manipulation rules of
Regulation M under the Securities Exchange Act of 1934 may apply to sales of
common stock in the market and to the activities of the selling shareholders and
their affiliates. In addition, FOCUS will make copies of this prospectus
available to the selling shareholders and has informed each of them of the need
for delivery of copies of this prospectus to purchasers at or prior to the time
of any sale of the shares offered hereby.
At the time a particular offer of shares is made, if required, a prospectus
supplement will be distributed that will set forth the number of shares being
offered and the terms of the offering, including the name of any underwriter,
dealer or agent, the purchase price paid by any underwriter, and any discount,
commission and other item constituting compensation, any discount, commission or
concession allowed or re-allowed or paid to any dealer, and the proposed selling
price to the public.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Copies of these materials can be obtained at
prescribed rates from the Public Reference Section of the SEC at its principal
office at 450 Fifth Street, N.W., Washington, D.C. 20549. Our SEC filings are
also available to the public from the SEC's Website at "http://www.sec.gov."
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus, and information that we file later with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings we will make with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934:
1. Annual Report on Form 10-KSB for the fiscal year ended December 31, 1998,
as amended;
2. Quarterly Report on Form 10-QSB for the quarter ended March 31, 1999;
3. the definitive Proxy Statement filed with the Commission on June 25, 1999
provided to stockholders in connection with the Annual Meeting of
Stockholders to be held on July 26, 1999; and
4. the description of the Company's Common Stock contained in the Registration
Statement on Form SB-2 File No. 33-60248-B filed with the Commission on
March 29, 1993, as amended.
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<PAGE>
You may request a copy of these filings, at no cost, by writing or telephoning
us at the following address:
FOCUS Enhancements, Inc.
600 Research Drive
Wilmington, Massachusetts 01887
Attention: Christopher P. Ricci
(978) 988-5888
This prospectus is part of a registration statement we filed with the SEC. You
should rely only on the information or representations provided in this
prospectus. We have authorized no one to provide you with different information.
We are not making an offer of these securities in any state where the offer is
not permitted. You should not assume that the information in this prospectus is
accurate as of any date other than the date on the front of this prospectus.
LEGAL MATTERS
The validity of the shares of Common Stock offered under this prospectus was
passed upon for us by Christopher P. Ricci, Esq., Senior Vice President and
General Counsel of the Company.
EXPERTS
The consolidated financial statements of the Company incorporated in this
prospectus by reference to our Annual Report on Form 10KSB for the year ended
December 31, 1998, as amended, have been so incorporated in reliance on the
report of Wolf & Company, P.C., independent accountants, given on the authority
of said firm as experts in auditing and accounting.
CAUTIONARY STATEMENT CONCERNING FORWARD LOOKING STATEMENTS
The Company does not provide forecasts of the future financial performance of
the Company. However, this prospectus and the documents incorporated by
reference into this prospectus may contain "forward looking" information that
involves risks and uncertainties. In particular, statements contained in this
prospectus or any of the documents incorporated by reference into this
prospectus which are not historical facts (including, for example, statements
concerning international revenues, anticipated operating expense levels and such
expense levels relative to the Company's total revenues) constitute forward
looking statements. In addition, any of the words "believes," "expects,"
"anticipates" or similar expressions indicate forward-looking statements. The
Company's actual results of operations and financial condition have varied and
may in the future vary significantly from those stated in any forward-looking
statements. Factors that may cause such differences include, for example: the
availability of capital to fund the Company's future cash needs; reliance on
major customers; history of operating losses; reliance on a limited number of
vendors for the manufacturing of the Company's products; technological
obsolescence; competition; component supply problems; protection of proprietary
information; accuracy of the Company's internal estimates of revenue and
operating expense levels; and the Company's ability to achieve Year 2000
compliance in a timely manner.
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<PAGE>
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
The Delaware General Corporation Law and the Company's certificate of
incorporation and by-laws provide for indemnification of the Company's directors
and officers for liabilities and expenses that they may incur in such
capacities. 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 foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable.
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<PAGE>
You should rely only on the information incorporated by reference or
contained in this prospectus or any supplement. We have not authorized anyone
else to provide you with different or additional information. You should not
assume that the information in this prospectus or any supplement is accurate as
of any date other than the date on the front of this prospectus or any
supplement that may have a later date. The selling shareholders are not making
an offer of the common stock in any state where the offer is not permitted.
TABLE OF CONTENTS
Page
Risk Factors 2
The Company 3
Use of Proceeds 3
Selling Shareholders 4
Plan of Distribution 4
Where You Can Find More Information 5
Legal Matters 6
Experts 6
Cautionary Statement Concerning
Forward Looking Statements 6
Disclosure Statement 7
FOCUS
ENHANCEMENTS, INC.
372,796 Shares of
Common Stock
(par value $0.01 per share)
__________________
PROSPECTUS
__________________
JULY __, 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following statement sets forth the estimated amounts of expenses to be borne
by the Company in connection with the offering described in this Registration
Statement:
Registration Fee Under Securities Act $ 109.32
Blue Sky Fees and Expenses 2,000.00
Legal Fees and Expenses 5,000.00
Accounting Fees and Expenses 2,000.00
Printing and Mailing Costs 1,000.00
Miscellaneous Fees and Expenses 2,000.00
----------
Total Expenses $12,109.32
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify, subject to the standards therein prescribed, any
person in connection with any action, suit or proceeding brought or threatened
by reason of the fact that such person is or was a director, officer, employee
or agent of the corporation, or was serving as such with respect to another
corporation or other entity at the request of such corporation.
The Delaware General Corporation Law and the Company's certificate of
incorporation and by-laws provide for indemnification of the Company's directors
and officer for liabilities and expenses that they may incur in such capacities.
In general, directors and officers are indemnified with respect to actions taken
in good faith in a manner reasonably believed to be in, or not opposed to, the
best interests of the Company, and with respect to any criminal action or
proceeding, actions that the indemnitee had no reasonable cause to believe were
unlawful. Reference is made to the Company's Second Restated Certificate of
Incorporation, as amended, and Restated By-laws incorporated herein by
reference.
The Company has obtained directors and officers liability insurance for the
benefit of its directors and certain of its officers.
Item 16. Exhibits
The following documents have been previously filed as Exhibits and are
incorporated herein by reference except those exhibits indicated with an
asterisk which are filed herewith:
Exhibit No. Description
2.1 Purchase & Sales Agreement for the acquisition of PC Video
Conversion, Inc. (1)
3.1 Second Restated Certificate of Incorporation, as amended,
incorporated by reference to Exhibit No. 3.1 of the Company's
Registration Statement on Form SB-2 [Reg. No. 33-60248-B] and
as an exhibit to the Company's Form 10-QSB dated November 13,
1995.
3.2 Restated By-laws of the Company (2).
4.1 Specimen certificate for Common Stock of the Company (2).
4.2 Registration Rights Agreement dated as of July 29, 1998
between the Company and PC Video Conversion, Inc. (1)
<PAGE>
4.3 Form of Common Stock Purchase Warrant issued to Brian Swift
and Edward Price. (3)
4.4 Common Stock Purchase Warrant issued to Silicon Valley Bank.
(3)
5 Opinion of Christopher P. Ricci, Esq.*
23.1 Consent of Wolf & Company, P.C., independent public
accountants.*
23.2 Consent of Christopher P. Ricci, Esq. (included in Exhibit 5)
24 Power of Attorney (contained in signature page to this
registration statement).
(1) Filed as an exhibit to the Company's Form 10-QSB dated August 14,
1998 and incorporated herein by reference.
(2) Filed as an exhibit to the Company's Registration Statement on Form
SB-2, No. 33-60248-B, and incorporated herein by reference.
(3) Filed as an exhibit to the Company's Form 10-QSB dated May 17, 1999
and incorporated herein by reference.
Item 17. 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 of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered), and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) (Section 230.424(b) of 17
C.F.R.) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(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 subparagraphs (i) and (ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in the periodic
reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities and Exchange Act of 1934 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 amendment shall
be deemed to be a new registration statement relating to the
Securities offered herein, 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 that remain
unsold at the termination of the offering.
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<PAGE>
(b) The undersigned registrant 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 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 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 such Act and is, therefore,
unenforceable.
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<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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the Town of Wilmington, Commonwealth of Massachusetts, on July
2, 1999.
FOCUS ENHANCEMENTS, INC.
By: /s/ Thomas L. Massie
Thomas L. Massie
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Form S-3 relating to Common Stock of the Registrant has been signed by the
following persons in the capacities and on the dates indicated. Each person
whose signature appears below hereby authorizes Thomas L. Massie and Christopher
P. Ricci, and each of them, to file one or more amendments (including additional
post-effective amendments) to this Registration Statement, which amendments may
make such changes as any of such persons deem appropriate, and each person,
individually and in each capacity stated below, hereby appoints each of such
persons as attorney-in-fact to execute in his name and on his behalf any of such
amendments to the Registration Statement.
Signature Title Date
/s/ Thomas L. Massie President, Chief Executive July 2, 1999
Thomas L. Massie Officer and Director
(Principal Executive Officer)
/s/ Gary M. Cebula Vice President of Finance and July 2, 1999
Gary M. Cebula Administration (Principal
Financial and Accounting Officer)
/s/ John C. Cavalier Director July 2, 1999
John C. Cavalier
/s/ William B. Coldrick Director July 2, 1999
William B. Coldrick
______________________ Director July _, 1999
Timothy E. Mahoney
/s/ Robert C. Eimers Director July 2, 1999
Robert C. Eimers
/s/ William A. Dambrackas Director July 2, 1999
William A. Dambrackas
EXHIBIT 5
July 2, 1999
Board of Directors
Focus Enhancements, Inc.
600 Research Drive
Wilmington, Massachusetts 01887
Re: Registration Statement on Form S-3 of 402,796 shares of Common Stock, par
value $0.01 per share
Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended (the "Act"), by Focus Enhancements, Inc., a Delaware corporation (the
"Company"), of 402,796 shares (the "Registered Shares") of its Common Stock, par
value $.01 per share ("Common Stock"), all of which Registered Shares are to be
offered for the account of certain selling stockholders of the Company, the
following opinion is furnished to you to be filed with the Securities and
Exchange Commission (the "Commission") as Exhibit 5 to the Company's
registration statement on Form S3 (the "Registration Statement") under the Act.
To the extent that any of the Registered Shares have not yet been
issued, I assume that at the time of the issuance of such Registered Shares,
there will exist, under the Company's Certificate of Incorporation, as amended
(the "Certificate"), the requisite number of authorized shares of Common Stock
for such issuance which are unissued, or held as treasury shares, and are not
otherwise reserved for issuance.
I am General Counsel and Secretary of the Company and I have examined
originals or copies, certified or otherwise identified to my satisfaction, of
the Registration Statement, the Certificate and the by-laws of the Company,
certain Action of the Board of Directors by Unanimous Written Consent dated as
of February 22, 1999, certain Action of the Board of Directors by Unanimous
Written Consent dated as of July 29, 1999 and such other corporate records,
certificates and statements of officers and accountants of the Company and of
public officials and other documents as I have considered necessary or
appropriate in order to furnish the opinion hereinafter set forth.
This opinion is limited to the laws of the Commonwealth of
Massachusetts and I express no opinion with respect to the law of any other
jurisdiction.
Based upon and subject to the foregoing, I hereby advise you that, in
my opinion, (i) those Registered Shares that have been issued as of the date
hereof were duly authorized and have been validly issued and are fully paid and
nonassessable and (ii) those Registered Shares that may be issued after the date
<PAGE>
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hereof shall be, upon such issuance, duly authorized and validly issued and
shall be fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, I do not hereby admit that I
come within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Commission promulgated thereunder.
This opinion may not be referred to or used for any other purpose or in any
other context or otherwise relied upon by any other person or entity without my
express written consent.
Respectfully,
/s/ Christopher P. Ricci
Christopher P. Ricci
Sr. V.P. & General Counsel
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
FOCUS Enhancements, Inc. on Form S-3 of our report, dated April 9, 1999 on the
consolidated financial statements of FOCUS Enhancements, Inc. as of and for the
year ended December 31, 1998, appearing in the Annual Report on Form 10-KSB/A of
FOCUS Enhancements, Inc. for the year ended December 31, 1998. We also consent
to the reference to us under the heading "Experts" in the Prospectus, which is
part of this Registration Statement.
/s/ WOLF & COMPANY, P.C.
WOLF & COMPANY, P.C.
Boston, Massachusetts
July 1, 1999
