As filed with the Securities and Exchange Commission on May 24, 1996
Registration No.33-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
-------------------------------
FOTOBALL USA, INC.
(Exact name of registrant as specified in its charter)
Delaware 33-0614889
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
3738 Ruffin Road
San Diego, California 92123
(Address of Principal Executive Offices) (Zip Code)
----------------------------
OPTION AGREEMENTS WITH CERTAIN OFFICERS AND DIRECTORS OF
FOTOBALL USA, INC. NOT PURSUANT TO THE FOTOBALL USA, INC.
1994 STOCK OPTION PLAN
(Full title of the plans)
----------------------------
MICHAEL FAVISH CHARLES I. WEISSMAN, ESQ.
President and Chief Executive Officer Shereff, Friedman, Hoffman &
Fotoball USA, Inc. Goodman, LLP
3738 Ruffin Road 919 Third Avenue
San Diego, California 92123 New York, New York 10022
(619) 467-9900 (212) 758-9500
(Name, address and telephone number, including area code,
of agents for service)
Page 1 of 13
<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum Amount of
Title of Securities Amount offering aggregate registration
to be registered to be price per offering fee <F2>
registered share <F1> price <F1>
- ------------------ ---------- --------- --------- -----------
Common Stock, par 35,000 $8.75 $306,250 $105.60
value $.01 per
share
<F1> Estimated in accordance with Rule 457(c) and (h) of the Securities Act of
1933, as amended (the "Act"), solely for the purpose of calculation of the
registration fee. The price shown is the closing bid price for shares of the
common stock, par value $.01 per share (the "Common Shares"), of the
Registrant on the Nasdaq SmallCap Market on May 22, 1996.
<F2> The registration fee has been calculated pursuant to Rule 457(c) and (h)
of the Act as follows: one-twenty-ninth of one percent of $306,250, the
closing bid price for the Common Shares on the Nasdaq SmallCap Market on
May 22, 1996, multiplied by 35,000, the number of Common Shares registered
hereby.
(2)
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by Fotoball USA, Inc., a
Delaware corporation (the "Registrant"), with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1995, which is the Registrant's latest Annual Report on
Form 10-KSB filed pursuant to Section 13(a) or 15(d) of the Exchange Act and
which contains audited financial statements for the Registrant's latest fiscal
year for which a Form 10-KSB was required to have been filed.
(b) The Registrant's Quarterly Report on Form 10-QSB for the three months
ended March 31, 1996.
(c) The description of the Registrant's common stock, par value $.01 per
share (the "Common Stock"), which is contained in a registration statement
filed under Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Section 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment 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 of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The indemnification of officers and directors of the Company is governed
by Section 145 of the Delaware Gereral Corporation Law (the "DGCL") and the
Certificate of Incorporation (the "Certificate") and By-Laws of the Company.
Among other things, the DGCL permits indemnification of a director, officer,
employee or agent in civil, criminal, administrative or investigative actions,
suits or proceedings (other than an action by or in the right of the
corporation) to which such person is a party or is threatened to be made a
party by reason of the fact of such relationship with the corporation or the
fact that such person is or was serving in a similar capacity with another
entity at the request of the corporation against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him if such person acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if he had
(3)<PAGE>
no reasonable cause to believe his conduct was unlawful. No indemnification
may be made in any such suit to any person adjudged to be liable to the
corporation unless and only to the extent that the Delaware Court of Chancery
or the court in which the action was brought determines that, despite the
adjudication of liability, such person is under all circumstances, fairly and
reasonably entitled to indemnity for such expenses which such court shall deem
proper. Under the DGCL, to the extent that a director, officer, employee or
agent is successful, on the merits or otherwise, in the defense of any action,
suit or proceeding or any claim, issue or matter therein (whether or not the
suit is brought by or in the right of the corporation), he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him. In all cases in which indemnification is permitted
(unless ordered by a court), it may be made by the corporation only as
authorized in the specific case upon a determination that the applicable
standard of conduct has been met by the party to be indemnified. The
determination must be made by a majority vote of a quorum consisting of the
directors who were not parties to the action or, if such a quorum is not
obtainable, or even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or by the
stockholders. The statute authorizes the corporation to pay expenses incurred
by an officer or director in advance of a final disposition of a proceeding
upon receipt of an undertaking by or on behalf of the person to whom the
advance will be made, to repay the advances if it shall ultimately be
determined that he was not entitled to indemnification. The DGCL provides that
indemnification and advances of expenses permitted thereunder are not to be
exclusive of any rights to which those seeking indemnification or advancement
of expenses may be entitled under any by-law, agreement, vote of stockholders
or disinterested directors, or otherwise. The DGCL also authorizes the
corporation to purchase and maintain liability insurance on behalf of its
directors, officers, employees and agents regardless of whether the
corporation would have the statutory power to indemnify such persons against
the liabilities insured.
The Certificate provides that no director of the Company shall be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director except for liability (i) for any breach
of the director's duty of loyalty to the Company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) for paying a dividend or approving a stock
repurchase in violation of Section 174 of the DGCL or (iv) for any transaction
from which the director derived an improper personal benefit.
The By-Laws provide that directors, officers and others shall be
indemnified to the fullest extent authorized by the DGCL, as in effect (or, to
the extent indemnification is broadened, as it may be amended), against any
and all judgments, fines and amounts paid in settling or otherwise disposing
of threatened, pending or completed actions, suits or proceedings, whether
civil, criminal, administrative or investigative and expenses incurred by such
person in connection therewith. The By-Laws further provide that, to the
extent permitted by law, expenses so incurred by any such person in defending
a civil or criminal action or proceeding shall, at his request, be paid by the
Company in advance of the final disposition of such action or proceeding.
(4)<PAGE>
The By-Laws provide that the right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final
disposition shall not be exclusive of any other right which any person may
have or acquire under any statute, provision of the Certificate or By-Laws or
otherwise.
The Company maintains directors and officers liability and company
reimbursement insurance which, among other things, (i) provides for payment on
behalf of its officers and directors against loss as defined in the policy
stemming from acts committed by directors and officers in their capacity such
and (ii) provides for payment on behalf of the Company against such loss but
only when the Company shall be required or permitted to indemnify directors or
officers for such loss pursuant to statutory or common law or pursuant to duly
effective Certificate or By-Law provisions.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- ----------------------
<S> <C>
4.1 Form of Representative's Unit Purchase Option.(1)
4.2 Form of Warrant Agreement.(1)
4.3 Specimen Warrant Certificate.(2)
4.4 Specimen Stock Certificate.(2)
4.6(1)* Stock Option Agreement dated as of November 9, 1994
with David G. Forster.(3)
4.6(2)* Form of Stock Option Agreement dated June 1, 1994
with Sabin C. Streeter.(3)
5.1 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP.
23.1 Consent of Hollander, Gilbert & Co.
(5)<PAGE>
23.2 Consent of Shereff, Friedman, Hoffman &
Goodman, LLP (contained in Exhibit 5.1).
</TABLE>
_______________________
* Indicates exhibits relating to executive compensation.
(1) Exhibits to the Company's Registration Statement on Form SB-2 filed with
the Commission on August 1, 1994 incorporated herein by reference.
(2) Exhibits to the Company's Registration Statement on Form SB-2 filed with
the Commission on August 9, 1994 incorporated herein by reference.
(3) Exhibits to the Company's Annual Report on Form 10-KSB for the year
ended December 31, 1994 incorporated herein by reference.
Item 9. Undertakings.
The undersigned small business issuer hereby undertakes that it will:
(1) file, during any period in which it offers or sell securities, a
post-effective amendment to this registration statement to:
(i) include any prospectus required by Section 10(a)(3) of the Act;
(ii) reflect in the prospectus any facts or events which, individually
or together, represent a fundamental change in the information set forth in
the registration statement; and
(iii) include any additional or changed material information on the
plan of distribution;
(2) for determining liability under the Act, 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.
(3) file a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
(4) for purposes of determining any liability under the Act, treat the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the small business issuer pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Act as part of this registration statement as of the
time the Commission declared it effective; and
(5) for the purpose of determining any liability under the Act, treat
each post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration
statement, and that offering of such securities at that time as the initial
bona fide offering of those securities.
(6)<PAGE>
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the small business
issuer pursuant to the foregoing provisions, or otherwise, the small business
issuer 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 small
business issuer of expenses incurred or paid by a director, officer or
controlling person of the small business issuer in the successful defense of
any action, suit or proceeding) is asserted by such director, officer of
controlling person in connection with the securities being registered, the
small business issuer 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 Act and will be governed by the final adjudication
of such issue.
(7)
<PAGE>
SIGNATURES
---------------
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing 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 Diego, State of California on this 23rd day of
May, 1996.
FOTOBALL USA, INC.
By:/s/ Michael Favish
----------------------
Michael Favish
President, Chief Executive
Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement was signed by the following persons in the capacities
and on the dates indicated:
<TABLE>
<CAPTION>
Signature Titles Date
- ---------------- ------------------------- ------------
<S> <C> <C>
/s/ Michael Favish President, Chief Executive May 23, 1996
- ------------------ Officer and Director
Michael Favish (Principal Executive Officer)
/s/ David G. Forster Vice President, Finance, May 23, 1996
- ------------------- Treasurer, & Chief Financial Officer
David G. Forster (Principal Financial & Accounting Officer)
/s/ William R. Hasvold Director May 23, 1996
- ---------------------
William R. Hasvold
/s/ Joel K. Rubenstein Director May 23, 1996
- ----------------------
Joel K. Rubenstein
/s/ Sabin C. Streeter Director May 23, 1996
- ----------------------
Sabin C. Streeter
/s/ Robert N. Weingarten Director May 23, 1996
- ------------------------
Robert N. Weingarten
</TABLE>
(8)
<PAGE>
EXHIBIT INDEX
----------------
<TABLE>
<CAPTION>
Exhibit
Number Description
- --------- -----------------------------
<S> <C>
5.1 Opinion of Shereff, Friedman, Hoffman &
Goodman, LLP.
23.1 Consent of Hollander, Gilbert & Co.
23.2 Consent of Shereff, Friedman, Hoffman &
Goodman, LLP (contained in Exhibit 5.1).
</TABLE>
(9)
<PAGE>
May 23, 1996
Fotoball USA, Inc.
3738 Ruffin Road
San Diego, California 92123
Dear Sirs:
Fotoball USA, Inc., a Delaware corporation (the "Company"), intends to
transmit for filing with the Securities and Exchange Commission a registration
statement under the Securities Act of 1933, as amended, on Form S-8 (the
"Registration Statement") which relates to 35,000 shares of the Company's
common stock, par value $.01 per share (the "Shares"), which are being offered
under the option agreements listed on Annex A hereto (the "Non-Plan
Options"). This opinion is an exhibit to the Registration Statement.
We have acted as counsel to the Company in connection with the proposed
offer and sale of the Shares as contemplated by the Registration Statement.
However, we are not general counsel to the Company and would not ordinarily be
familiar with or aware of matters relating to the Company unless they are
brought to our attention by representatives of the Company. We have examined
copies (in each case signed, certified or otherwise proved to our
satisfaction) of the Company's Certificate of Incorporation, its By-Laws as
presently in effect, minutes and other instruments evidencing actions taken by
its directors and stockholders, and such other documents and instruments
relating to the Company and the proposed offering as we have deemed necessary
under the circumstances. In our examination of all such agreements,
documents, certificates and instruments, we have assumed the genuineness of
all signatures and the authenticity of all agreements, documents, certificates
and instruments submitted to us as originals and the conformity with the
originals of all agreements, instruments, documents and certificates submitted
to us as copies. Insofar as this opinion relates to securities to be issued
in the future, we have assumed that all applicable laws, rules and regulations
in effect at the time of such issuance are the same as such laws, rules and
regulations in effect as of the date hereof.
We note that we are members of the Bar of the State of New York and do
not hold ourselves out as experts in the law of any other state. We express
no opinion as to the laws of any other jurisdiction, except with respect to
the federal laws of the United States of America and except to the extent that
matters of Delaware general corporate law are involved in the opinions
expressed below.
(10)
<PAGE>
Fotoball USA, Inc.
May 23, 1996
Page 2
Based on the foregoing, and subject to and in reliance on the accuracy
and completeness of the information relevant thereto provided to us, it is our
opinion that:
1. The Company has been duly incorporated under the laws of the State of
Delaware and has an authorized capital stock consisting of 15,000,000 shares
of common stock, par value $.01 per share, and 1,000,000 shares of preferred
stock, par value $.01 per share.
2. The Shares to be issued upon the exercise of the Non-Plan Options have
been duly authorized and (subject to the effectiveness of the Registration
Statement and compliance with applicable state securities laws), when issued
and paid for in accordance with the terms of the Non-Plan Options, will be
legally and validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and as an exhibit to any filing made by the Company
under the securities or "Blue Sky" laws of any state.
This opinion is furnished to you in connection with the filing of the
Registration Statement, and is not to be used, circulated, quoted or otherwise
relied upon for any other purposes, except as expressly provided in the
preceding paragraph.
Very truly yours,
/s/ SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
SFH&G:CIW:GA:AMF
(11)
<PAGE>
ANNEX A
------------
(1) Stock Option Agreement dated as of November 9, 1994 with David G. Forster
(2) Stock Option Agreement dated as of June 1, 1994 with Sabin Streeter
(12)
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement on Form S-8 of our report dated February 16, 1996,
relating to the financial statements of Fotoball USA, Inc. which are
incorporated by reference in such Prospectus. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
/s/ HOLLANDER, GILBERT & CO.
HOLLANDER, GILBERT & CO.
Los Angeles, California
May 21, 1996
(13)
<PAGE>
