As filed with the Securities and Exchange Commission on February 24, 1998
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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IMSCO TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3021770
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
40 Bayfield Drive
North Andover, MA 01845
(978) 689-2080
(Address of Principal Executive Offices)
1996 Employee Incentive Stock Option Program of IMSCO Technologies, Inc.
(Full title of the plans)
ALEXANDER T. HOFFMANN
Chief Executive Officer
IMSCO TECHNOLOGIES, INC.
40 Bayfield Drive
North Andover, MA 01845
(Name and address of agent for service)
(978) 689-2080
(Telephone number, including area code, of agent for service)
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Copies to:
David E. Fleming, Esq.
Epstein Becker & Green, P.C.
250 Park Avenue
New York, New York 10177
(212) 351-4500
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Title of Each Class of Amount to be Proposed Maximum Offering Proposed Maximum Amount of
Securities to be Registered (2) Price Per Share (2) Aggregate Offering Price Registration Fee
Registered
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<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 1,500,000 shares (1) $1.625 $2,437,500 $719.06
- -----------------------------------------------------------------------------------------------------------------------
Total 1,500,000 shares $1.625 $2,437,500 $719.06
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</TABLE>
(1) Consists of 1,500,000 shares of Common Stock of the Registrant which are
issuable upon exercise of options or grant of shares which will be granted under
the 1996 Employee Incentive Stock Option Program of IMSCO Technologies, Inc.
(The "Plan"). No shares or options have granted under the Plan as of the date
hereof. This Registration Statement also covers an indeterminate number of
shares of Common Stock which may be issuable by reason of stock splits, stock
dividends or similar transactions.
(2) Calculated pursuant to Rule 457(h)(1) under the Securities Act and based
upon the current market price for shares of Common Stock and original option
exercise prices for shares of Common Stock.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The documents containing the information specified in Part I of Form
S-8 will be sent or given to participants as specified by Rule 428(b)(1) under
the Securities Act of 1933, as amended (the "Securities Act"). The Company will
maintain a file of such documents in accordance with the provisions of Rule 428.
Such documents need not be filed with the Securities and Exchange Commission
(the "Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 under the Securities
Act. These documents and the documents incorporated by reference in the
Registration Statement pursuant to Item 3 of Part II of this Form S-8,taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act. See Rule 428(a)(1) under the Securities Act.
This Registration Statement on Form S-8 of IMSCO Technologies, Inc., a
Delaware corporation (the "Registrant"), covers 1,500,000 shares of the
Registrant's Common Stock, par value $.01 per share ("Common Stock"), reserved
for issuance under the following employee benefit plan of the Registrant: 1996
Employee Incentive Stock Option Program of IMSCO Technologies, Inc. (the
"Plan"). No shares of Common Stock or options exercisable into shares of Common
Stock have been issued under the Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1996, as amended.
(b) All other reports and forms filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities and Exchange Act of 1934, as amended
(the"Exchange Act"), prior to the date hereof; and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Proxy Statement on Form 14 , dated July 9, 1996, including any
amendments thereto or reports filed for the purpose of updating such
description.
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of the filing of such documents.
Any statement contained herein or 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 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.
<PAGE>
Not applicable.
Item 5. Interests of Named Experts and Counsel.
A member of special counsel to the Registrant, Epstein Becker & Green,
P.C., David E. Fleming, Esq., owns 65,000 shares of Common Stock of the
Registrant.
Item 6. Indemnification of Directors and Officers.
The Registrant's Certificate of Incorporation eliminates, to the fullest
extent permitted by the Law of the State of Delaware, personal liability of
directors to the Registrant and its stockholders for monetary damages for breach
of fiduciary duty as directors.
Section 145(a) of the Delaware General Corporation Law ("DGCL") provides in
relevant part that "a corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding 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 corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful."
With respect to derivative actions, Section 145(b) of the DGCL provides in
relevant part that "[a] corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor... [by reason of his service in one of the capacities
specified in the preceding sentence] against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement or such action or 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
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and 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 but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper".
Article NINTH of the Company's Certificate of Incorporation, provides:
"To the full extent permitted by the Delaware General Corporation Law or
any other applicable law currently or hereafter in effect, no Director of the
Company will be personally liable to the Company or its stockholders for or with
respect to any acts or omissions in the performance of his or her duties as a
Director of the Company. Any repeal or modification of this Article Ninth will
not adversely affect any right or protection of a Director of the Company
existing prior to such repeal or modification."
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
3.1 Certificate of Incorporation of IMSCO Technologies, Inc. (previously filed
on July 17, 1996 as Exhibit 3.1 in the Company's Report on Form 8-K, File
No. 000-24520).
3.2 By-Laws of IMSCO Technologies, Inc. (previously filed on July 17, 1996 as
Exhibit 3.2 to the
<PAGE>
Company's Report on Form 8-K, File No. 000-24520).
4.1 1996 Employee Incentive Stock Option Program of IMSCO Technologies, Inc.
(previously filed on May 26, 1996 as Exhibit 4.1 to the Company's Proxy
Statement on Form 14A, File No. 000-24520).
5.1 * Opinion of Epstein Becker & Green, P.C. as to the legality of the
securities being offered.
23.1 *Consent of Gordon Harrington & Osborne, P.C., with respect to financial
statements of the Registrant.
23.2 *Consent of Epstein Becker & Green, P.C. (included in Exhibit 5.1).
24 *Powers of Attorney (included on p. II-4 of this Registration Statement).
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* Filed herewith.
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 to include any material
information with respect to the plan of distribution not previously disclosed in
the Registration Statement or any material changes to such information in the
Registration Statement;
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions of Item 6 of this Registration Statement,
or otherwise, the Registrant has been advised that, in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 New York, New York. on the 24th day of February, 1998.
IMSCO TECHNOLOGIES, INC.
By: /s/ Alexander T. Hoffmann
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Alexander T. Hoffmann
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitute and appoints Alexander T. Hoffmann, his true and lawful
attorneys-in-fact and agents 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) of and supplements to
this Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorney-in-fact and agent 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, to all intents and purposes and as fully
as they might or could do in person, hereby ratifying and confirming all that
such attorney-in-fact and agent, or his substitute, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on the 24th day of February, 1998.
Signature Capacity
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/s/ Alexander T. Hoffmann Chairman of the Board, Director
- ------------------------------- and Chief Executive Officer
Alexander T. Hoffmann (Principal and Executive Officer)
/s/ Scott Singer Assistant Secretary and Principal
- ------------------------------- Financial and Accounting Officer
Scott Singer, CPA
/s/ Gary Graham Director
- -------------------------------
Gary Graham
/s/ Frank Lubrano Director
- -------------------------------
Frank Lubrano
II-4
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description Page
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3.1 Certificate of Incorporation of IMSCO Technologies, Inc.
(previously filed on July 17, 1996 as Exhibit 3.1 in the
Company's Report on Form 8-K, File No. 000-24520).
3.2 By-Laws of IMSCO Technologies, Inc. (previously filed on July 17,
1996 as Exhibit 3.2 to the Company's Report on Form 8-K, File No.
000-24520).
4.1 1996 Employee Incentive Stock Option Program of IMSCO
Technologies, Inc. (previously filed on May 26, 1996 as Exhibit
4.1 to the Company's Preliminary Proxy Statement on Form 14A,
File No. 000-24520).
5.1 * Opinion of Epstein Becker & Green, P.C. as to the legality of
the securities being offered.
23.1 * Consent of Gordon Harrington & Osborne, P.C., with respect to
financial statements of the Registrant.
23.2 * Consent of Epstein Becker & Green, P.C. (included in Exhibit
5.1).
24 * Powers of Attorney (included on p. II-4 of this Registration
Statement).
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* Filed herewith.
February 24, 1998
IMSCO Technologies, Inc.
40 Bayfield Drive
North Andover, MA 01845
Re: IMSCO Technologies, Inc.
Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to you (the "Corporation") in connection with the
preparation and filing of the above-captioned Registration Statement on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended,
relating to the proposed issuance of up to 1,500,000 shares (the "Original
Shares") of the Corporation's Common Stock, par value $.001 per share (the
"Common Stock"), which may be issued pursuant to the 1996 Employee Incentive
Stock Option Plan of the Corporation (the "Plan") and such additional shares
(the "Additional Shares") as may be issued pursuant to the antidilution
provisions of the Plan. You have represented, and we have expressly relied
thereon, that no Common Stock or options to purchase Common Stock have been
issued under the Plan. The Original Shares and the Additional Shares are
hereinafter referred to together as the "Shares". This opinion letter is Exhibit
5.1 to the Registration Statement.
We have examined copies of the Certificate of Incorporation and the Bylaws of
the Corporation, as amended to date, the Registration Statement (including the
exhibits thereto), the Plan, the minutes of various meetings of the Board of
Directors of the Corporation, and the originals, copies or certified copies of
all such records of the Corporation, and all such agreements, certificates of
public officials, certificates of officers and representatives of the
Corporation, or others, and such other documents, papers, statutes and
authorities as we have deemed necessary to form the basis of the opinion
hereinafter expressed. In such examination, we have assumed the genuineness of
signatures and the conformity to original documents of the documents supplied to
us as copies. As to various questions of fact material to such opinion, we have
relied upon statements and certificates of officers of the Corporation and
others.
Attorneys involved in the preparation of this opinion are admitted to practice
law in the State of New York and we do not purport to be experts on, or express
any opinion herein concerning, any law other than the laws of the State of New
York, the federal laws of the United States of America and the General
Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, we are of the opinion that all of the
Shares have been duly authorized and, when issued under the circumstances
contemplated in the Registration Statement and the Plan, will be validly issued,
fully paid and nonassessable.
We hereby consent to your filing a copy of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit hereby that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
EPSTEIN BECKER & GREEN, P.C.
The Stockholders
IMSCO Technologies, Inc.:
We consent to the use of our report incorporated herein by reference in the
registration statement.
GORDON HARRINGTON & OSBORNE, P.C.
North Andover, Massachusetts
February 24, 1998
