As filed with the Securities and Exchange Commission on January 27, 1999
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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IMAGINON, INC.
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(Exact name of Registrant specified in its charter)
Delaware 84-1217733
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1313 Laurel Street, Suite 1
San Carlos, California 94070
- ---------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
OPTIONS GRANTED UNDER 1997 STOCK OPTION PLAN
AND CONSULTANTS STOCK COMPENSATION PLAN
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(Full title of the plan)
David M. Schwartz
President and Chief Executive Officer
ImaginOn, Inc.
1313 Laurel Street, Suite 1
San Carlos, California 94070
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(Name and address of agent for service)
(650) 596-9300
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(Telephone number, including area code, of agent for service)
Copies to:
Gerald Raskin, Esq.
Seth Weiss, Esq.
Friedlob Sanderson Raskin Paulson & Tourtillott, LLC
1400 Glenarm Place, Suite 300
Denver, Colorado 80202
(303) 571-1400
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed Maximum
Maximum Aggregate Offering
Title of Offering Price Price Amount of Registration
Securities to be Registered Amount to be Registered per Share Fee
(1)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 657,500 $.05703 $37,498 $11 (2)
$.01 par value
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock, 315,600 $.47529 $150,000 $42 (2)
$.01 par value
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock, 946,800 $.47529 $450,005 $125 (2)
$.01 par value
- ------------------------------------------------------------------------------------------------------------------------------------
Total 1,919,900 - $637,503 $178
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</TABLE>
(1) This Registration Statement is being filed to register (a) 657,500 shares
of common stock underlying stock options outstanding under the terms of
the 1997 Employee Stock Option Plan of ImaginOn.com (f/k/a ImaginOn,
Inc.), a California corporation, which options were assumed by the
Registrant upon consummation of a merger of ImaginOn.com with a
wholly-owned subsidiary of the Registrant and grant the holder the right
to buy common stock of the Registrant (the "Options"), (b) 315,600 shares
of common stock underlying stock options outstanding under the terms of
the 1997 Employee Stock Option Plan of ImaginOn.com (f/k/a ImaginOn,
Inc.), a California corporation, which options were assumed by the
Registrant upon consummation of a merger of ImaginOn.com with a
wholly-owned subsidiary of the Registrant and grant the holder the right
to buy common stock of the Registrant (also referred to as the "Options")
and (c) 946,800 shares of common stock underlying warrants outstanding
under the terms of written Consulting Agreements with consultants (the
"Warrants"), plus such indeterminable number of shares of common stock as
may be issued by reason of the anti-dilution provisions of the Options.
(2) In accordance with Rule 457(h), the fee has been calculated as follows:
657,500 shares at $.05703 per share, 315,600 shares at $.47529 per share,
and 946,800 shares at $.47529 per share.
ii
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information.
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ImaginOn, Inc. (the "Registrant") will provide each option holder and each
consultant (the "Recipient") with documents that contain information related to
the plan which provides for its compensation shares and other information
including, but not limited to, the disclosure required by Item 1 of Form S-8,
which information is not filed as a part of this Registration Statement (the
"Registration Statement"). The foregoing information and the documents
incorporated by reference in response 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 of 1933, as amended (the "Securities Act").
A Section 10(a) prospectus will be given to the Recipient who receives shares of
common stock covered by this Registration Statement, in accordance with Rule
428(b)(1) under the Securities Act.
Item 2. Registrant Information.
----------------------
The Registrant will provide to the Recipient a written statement advising
it of the availability of documents incorporated by reference in Item 3 of Part
II of this Registration Statement and of documents required to be delivered
pursuant to Rule 428(b) under the Securities Act without charge and upon written
or oral notice. The statement will include the address and telephone number to
which any requests for documents should be directed.
1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Commission by the Registrant are
hereby incorporated into this Registration Statement by reference:
Registrant's Annual Report on Form 10-KSB/A-1 for the year ended
December 31, 1997;
Registrant's Current Report on Form 8-K reporting events of February
23, 1998;
Registrant's Current Report on Form 8-K reporting events of March 25,
1998;
Registrant's Quarterly Report on Form 10-QSB/A-1 for the quarter ended
March 31, 1998;
Registrant's Current Report on Form 8-K reporting events of June 25,
1998;
Registrant's Quarterly Report on Form 10-QSB/A-1 for the quarter ended
June 30, 1998;
Registrant's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1998; and
The description of the common stock contained in the Registrant's
Registration Statement on Form 8-A (Commission File No. 0-25114) as
filed with the Commission on November 13, 1994.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), prior to the filing of a post-effective amendment which indicates that
all shares offered hereunder have been sold or de-registers 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 of such
documents.
Item 4. Description of Securities.
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Not Applicable.
Item 5. Interests of Named Experts and Counsel.
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None.
II-1
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Item 6. Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law and Article Ninth
of the Registrant's Certificate of Incorporation provides for, under certain
circumstances, the indemnification of the Registrant's officers, directors,
employees and agents against liabilities which they may incur in such
capacities. A summarization of the circumstances in which such indemnifications
provided for is contained herein, but that description is qualified in its
entirety by reference to Article Ninth of the Registrant's Certificate of
Incorporation and the relevant Section of the Delaware General Corporation Law.
In general, the statute provides that any director, officer, employee
or agent of a corporation may be indemnified against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement, actually and
reasonably incurred in a proceeding (including any civil, criminal,
administrative or investigative proceeding) to which the individual was a party
by reason of such status. Such indemnity may be provided if the indemnified
person's actions resulting in the liabilities: (i) were taken in good faith;
(ii) were reasonably believed to have been in or not opposed to the Registrant's
best interest; and (iii) with respect to any criminal action, such person had no
reasonable cause to believe the actions were unlawful. Unless ordered by a
court, indemnification generally may be awarded only after a determination of
independent members of the Board of Directors or committee thereof, by
independent legal counsel or by vote of the stockholders that the applicable
standard of conduct was met by the individual to be indemnified.
The statutory provisions further provide that to the extent a director,
officer, employee or agent is wholly successful on the merits or otherwise in
defense of any proceeding to which he was a party, he is entitled to receive
indemnification against expenses, including attorneys' fees, actually and
reasonably incurred in connection with the proceeding.
Indemnification in connection with a proceeding by or in the right of
the Corporation in which the director, officer, employee or agent is successful
is permitted only with respect to expenses, including attorneys' fees actually
and reasonably incurred in connection with the defense. In such actions, the
person to be indemnified must have acted in good faith, in a manner believed to
have been in the Corporation's best interest and must not have been adjudged
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability, in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expense which the Court of Chancery or such other court shall
deem proper. Indemnification is otherwise prohibited in connection with a
proceeding brought on behalf of the Registrant in which a director is adjudged
liable to the Registrant, or in connection with any proceeding charging improper
personal benefit to the director in which the director is adjudged liable for
receipt of an improper personal benefit.
II-2
<PAGE>
Delaware law authorizes the Registrant to reimburse or pay reasonable
expenses incurred by a director, officer, employee or agent in connection with a
proceeding in advance of a final disposition of the matter. Such advances of
expenses are permitted if the person furnishes to the Registrant a written
agreement to repay such advances if it is determined that he is not entitled to
be indemnified by the Corporation.
The statutory section cited above further specifies that any provisions
for indemnification of or advances for expenses does not exclude other rights
under the Registrant's Certificate of Incorporation, Bylaws, resolutions of its
stockholders or disinterested directors, or otherwise. These indemnification
provisions continue for a person who has ceased to be a director, officer,
employee or agent of the corporation and inure to the benefit of the heirs,
executors and administrators of such persons.
The statutory provision cited above also grants the power to the
Registrant to purchase and maintain insurance policies which protect any
director, officer, employee or agent against any liability asserted against or
incurred by him in such capacity arising out of his status as such. Such
policies may provide for indemnification whether or not the corporation would
otherwise have the power to provide for it. No such policies providing
protection against liabilities imposed under the securities laws have been
obtained by the Registrant.
Article VIII of the Registrant's Bylaws provides that the Registrant
shall indemnify its directors, officers, employees and agents to the fullest
extent permitted by the Delaware General Corporation Law. In addition, the
Registrant has entered into agreements with its directors indemnifying them to
the fullest extent permitted by the Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed.
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Not Applicable.
Item 8. Exhibits.
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The following is a complete list of exhibits filed as a part of this
Registration Statement, which Exhibits are incorporated herein.
3.1 Certificate of Incorporation for ImaginOn, Inc. (INCORPORATED BY
REFERENCE TO EXHIBIT 3.1 TO THE COMPANY'S REGISTRATION STATEMENT ON
FORM SB-2, REGISTRATION NO. 33-85108 AS FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION "SEC" ON OCTOBER 13, 1994.)
II-3
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3.2 Certificate of Designations for Series B 4% Convertible Preferred
Stock. (INCORPORATED BY REFERENCE TO EXHIBIT 3.(I).1 TO THE COMPANY'S
QUARTERLY REPORT ON FORM 10-QSB FOR THE PERIOD ENDING JUNE 30, 1998.)
3.3 Certificate of Designations for Series C 4% Convertible Preferred
Stock. (INCORPORATED BY REFERENCE TO EXHIBIT 3.4 TO THE COMPANY'S
REGISTRATION STATEMENT ON FORM S-3/A, REGISTRATION STATEMENT NO.
333-62713 AS FILED WITH THE SEC ON DECEMBER 21, 1998.)
5.1 Opinion of Counsel and Consent of Friedlob Sanderson Raskin Paulson &
Tourtillott, LLC
24.1 Power of Attorney - Included on Signature Page
23.1 Consent of Friedlob Sanderson Raskin Paulson & Tourtillott, LLC - See
Exhibit 5.1.
23.2 Consent of Gelfond Hochstadt Pangburn & Co.
Item 9. Undertakings.
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The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
additional or changed material information on the plan of distribution.
(a) (2) That, for determining any liability under the Securities Act,
it will treat each post-effective amendment as a new registration statement of
the securities offered, and the offering of such securities at that time to be
the initial bona fide offering.
(a) (3) To file a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the offering.
(b) Not applicable.
(c) Not Applicable.
(d) Not Applicable.
(e) Not Applicable.
(f) Not Applicable.
II-4
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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 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 San Carlos, State of California, on this 27th day of
January, 1999.
ImaginOn, INC.
By /S/ DAVID M. SCHWARTZ
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David M. Schwartz, President
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and/or
directors of ImaginOn, Inc., by virtue of their signatures appearing below,
hereby constitute and appoint David M. Schwartz and Barry S. Hollander, each
with full power of substitution, as attorneys-in-fact in their names, places and
steads to execute any and all amendments to this Registration Statement on Form
S-8 in the capacities set forth opposite their names below and hereby ratify all
that said attorneys-in-fact may do by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
---------- ----- ----
/S/ DAVID M. SCHWARTZ
- ---------------------- Director and Chief Executive Officer January 27, 1999
David M. Schwartz
/S/ BARRY S. HOLLANDER
- ---------------------- Acting Chief Financial Officer January 27, 1999
Barry S. Hollander
/S/ LEONARD W. KAIN
- ---------------------- Director January 27, 1999
Leonard W. Kain
/S/ MARY E. FINN
- ---------------------- Director January 27, 1999
Mary E. Finn
II-5
EXHIBIT 5.1
January 27, 1999
Board of Directors
ImaginOn, Inc.
1313 Laurel Street, Suite 1
San Carlos, California 94070
Re: Registration Statement on Form S-8
Opinion of Counsel
Gentlemen:
As counsel for ImaginOn, Inc. (the "Corporation"), a Delaware
corporation, we have examined the Certificate of Incorporation, the Bylaws and
Minutes of the Corporation and such other corporate records, documents and
proceedings, and have considered such questions of law as we deemed relevant for
the purpose of this opinion. We have also, as such counsel, examined the
Corporation's Registration Statement on Form S-8 (the "Registration Statement"),
which will be filed with the Securities and Exchange Commission today or shortly
thereafter, covering the sale of an aggregate of up to 1,919,900 shares (the
"Shares") of the Corporation's common stock underlying stock options outstanding
under the terms of the 1997 Employee Stock Option Plan of ImaginOn.com (f/k/a
ImaginOn, Inc.), a California corporation, which options were assumed by the
Corporation upon consummation of a merger of ImaginOn.com with a wholly-owned
subsidiary of the Corporation and grant the holder the right to buy common stock
of the Corporation, and common stock underlying warrants granted under the
Consulting Agreements as described in and in accordance with the terms of the
Registration Statement.
Based upon the foregoing, we are of the opinion that the Shares, upon
exercise of the option in accordance with its terms, will be duly and validly
issued as fully paid and non-assessable shares of common stock of the
Corporation.
We hereby consent to the use of our name in such Registration
Statement and to the filing of this opinion as Exhibit 5.1 thereto. In giving
this consent, we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933
or the Rules and Regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
/S/ FRIEDLOB SANDERSON RASKIN PAULSON
& TOURTILLOTT, LLC
Friedlob Sanderson Raskin
Paulson & Tourtillott, LLC
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of ImaginOn, Inc. (formerly known as California Pro Sports, Inc.) of
our report dated April 14, 1998 (which expresses an unqualified opinion and
includes an explanatory paragraph relating to the Company's ability to continue
as a going concern), relating to the consolidated balance sheet of ImaginOn,
Inc. and subsidiaries as of December 31, 1997, and the related consolidated
statements of operations, shareholders' equity, and cash flows for each of the
years in the two-year period ended December 31, 1997, which report appears in
the December 31, 1997 annual report on Form 10- KSB/A-1 of ImaginOn, Inc.
GELFOND HOCHSTADT PANGBURN & CO.
/S/ GELFOND HOCHSTADT PANGBURN & CO.
Denver, Colorado
January 27, 1999
