As filed with the Securities and Exchange Commission on June 10, 1996.
File No. 33-
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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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IMAGEX SERVICES, INC.
(Exact name of issuer as specified in its charter)
Nevada 93-0933399
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
80 Wolf Road, Suite 503
Albany, New York 12205
(Address of principal executive offices) (Zip Code)
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CONSULTING AGREEMENT
WITH BLUE WATER CONSULTING, INC.
CLIENT SERVICE AGREEMENT
WITH BROAD STREET MARKETING, INC.
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(Full title of the plan)
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Andrew F. Capoccia, President
80 Wolf Road, Suite 503
Albany, New York 12205
Telephone No.: (518) 438-3529
(Name and address of agent for service)
Copy to:
James M. Schneider, Esq.
Atlas, Pearlman, Trop & Borkson, P.A.
200 East Las Olas Boulevard, Suite 1900
Fort Lauderdale, FL 33301
(954) 763-1200
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<PAGE>
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
maximum maximum
offering aggregate Amount of
Title of securities Amount to be price per offering registration
to be registered registered(1) share(1) price(1) fee (1)
================================================================================
Common Stock 1,000,000
($.001 par value) shares $0.31 $310,000 $106.90
================================================================================
(1) Pursuant to Rule 457(h), the maximum offering price was calculated
based upon the average of the bid and asked price of the Company's
Common Stock on the OTC Bulletin Board on June 7, 1996.
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IMAGEX SERVICES, INC.
CROSS REFERENCE SHEET REQUIRED BY ITEM 501(b) OF REGULATION S-K
Form S-8 Item Number
and Caption Caption in Prospectus
------------------- ---------------------
1. Forepart of Registration State- Facing Page of Registration
ment and Outside Front Cover Statement and Cover Page of
Page of Prospectus Prospectus
2. Inside Front and Outside Back Inside Cover Page of Pro-
Cover Pages of Prospectus spectus and Outside Cover
Page of Prospectus
3. Summary Information, Risk Fac- Not Applicable
tors and Ratio of Earnings to
Fixed Charges
4. Use of Proceeds Not Applicable
5. Determination of Offering Price Not Applicable
6. Dilution Not Applicable
7. Selling Security Holders Sales by Selling Security
Holders
8. Plan of Distribution Cover Page of Prospectus
and Sales by Selling
Security Holders
9. Description of Securities to be Description of Securities;
Registered Consulting Agreements
10. Interests of Named Experts and Legal Matters
Counsel
11. Material Changes Not Applicable
12. Incorporation of Certain Infor- Incorporation of Certain
mation by Reference Documents by Reference
13. Disclosure of Commission Posi- Indemnification of Direc-
tion on Indemnification for tors and Officers; Under-
Securities Act Liabilities takings
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PROSPECTUS
IMAGEX SERVICES, INC.
1,000,000 Shares of Common Stock
($.001 par value)
Issued Pursuant to the Exercise of Options under
the Company's Consulting Agreements
with Blue Water Consulting, Inc.
and Broad Street Marketing, Inc.
This Prospectus is part of a Registration Statement which registers an
aggregate of 1,000,000 shares of Common Stock, $.001 par value (such shares
being referred to as the "Shares"), of Imagex Services, Inc. (the "Company" or
"Imagex") which have been issued as set forth herein, to (i) Blue Water
Consulting, Inc., a consultant to the Company ("Blue Water") pursuant to a
written Consulting Agreement dated May 20, 1996 (the "Blue Water Consulting
Agreement"), providing for the issuance of 700,000 of such Shares and (ii) Broad
Street Marketing, Inc., a consultant to the Company ("Broad Street") pursuant to
a written Client Service Agreement dated May 20, 1996 (the "Broad Street
Consulting Agreement") providing for the issuance of 600,000 shares of Common
Stock of the Company, including 300,000 shares of Common Stock included in this
Prospectus. Blue Water and Broad Street, which consultants are both under common
ownership, may be sometimes collectively referred to as the "Consultants," and
the Blue Water Consulting Agreement and the Broad Street Consulting Agreement
may be collectively referred to as the "Consulting Agreements." In addition, the
Consultants, in their capacity as selling shareholders, may sometimes hereafter
be collectively referred to as the "Selling Security Holders." All of the
Options are being issued to the Consultants pursuant to written consulting
agreements. The Company has been advised by the Selling Security Holders that
they may sell all or a portion of the Shares from time to time in the
over-the-counter market, in negotiated transactions, directly or through brokers
or otherwise, and that such Shares will be sold at market prices prevailing at
the time of such sales or at negotiated prices, and the Company will not receive
any proceeds from such sales.
No person has been authorized by the Company to give any information or
to make any representation other than as contained in this Prospectus, and if
given or made, such information or representation must not be relied upon as
having been authorized by the Company. Neither the delivery of this Prospectus
nor any distribution of the Shares issuable under the terms of the Consulting
Agreements shall, under any circumstances, create any implication that there has
been no change in the affairs of the Company since the date hereof.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED ON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
-------------------
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL SECURITIES IN ANY
STATE TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH STATE.
The date of this Prospectus is June 7, 1996.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed with the Commission can be inspected and
copied at the public reference facilities of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549. Copies of this material can also be obtained at
prescribed rates from the Public Reference Section of the Commission at its
principal office at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Company's Common Stock is traded on the OTC Bulletin Board under the symbol
"IMXS."
The Company has filed with the Commission a Registration Statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Act"), with respect to the resale of up to an aggregate of up to
1,000,000 shares of the Company's Common Stock, to be issued to Consultants of
the Company pursuant to written Consulting Agreements with Imagex. This
Prospectus, which is Part I of the Registration Statement, omits certain
information contained in the Registration Statement. For further information
with respect to the Company and the shares of the Common Stock offered by this
Prospectus, reference is made to the Registration Statement, including the
exhibits thereto. Statements in this Prospectus as to any document are not
necessarily complete, and where any such document is an exhibit to the
Registration Statement or is incorporated by reference herein, each such
statement is qualified in all respects by the provisions of such exhibit or
other document, to which reference is hereby made, for a full statement of the
provisions thereof. A copy of the Registration Statement, with exhibits, may be
obtained from the Commission's office in Washington, D.C. (at the above address)
upon payment of the fees prescribed by the rules and regulations of the
Commission, or examined there without charge.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated herein by reference and made a part hereof:
1. The Company's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1995.
2. The Company's Quarterly Report on Form 10-QSB for the
quarterly period ended March 31, 1996.
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3. All reports and documents filed by the Company pursuant to
Section 13, 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered 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
respective date of filing of such documents. Any statement incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus 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 modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute part of this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of the Prospectus has been
delivered, on the written or oral request of any such person, a copy of any or
all of the documents referred to above which have been or may be incorporated by
reference in this Prospectus, other than exhibits to such documents. Written
requests for such copies should be directed to Corporate Secretary, Imagex
Services, Inc., 80 Wolf Road, Suite 503, Albany, New York 12205.
6
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THE COMPANY
General
Imagex Services, Inc. ("Imagex" or the "Company") was incorporated
under the laws of the State of Nevada on July 23, 1986 as Balloonies, Inc.
("BI"). BI acquired its present operating subsidiary, Unicare Services, Inc., in
a reverse acquisition on June 28, 1993 and BI changed its name to Imagex
Services, Inc. upon such acquisition. Unicare was formed to begin the present
medical diagnostic service business of the Company and had no material
pre-acquisition activities. Imagex' wholly-owned subsidiaries, Unicare Services,
Inc. and Rome Magnetic Associates, Inc., which conduct business as Unicare and
Rome are referred to herein as "Unicare and Rome" and Imagex, Unicare and Rome
are herein referred to collectively as the "Company". Unicare and Rome were
incorporated under the laws of the State of New York on April 16, 1993 and
August 3, 1993, respectively.
Operations
The Company provides medical diagnostic services directly to patients
through contracting physicians, health maintenance organizations, preferred
provider organizations, trade unions, physician groups, clinics as well as other
forms of group health plan providers (individually or collectively "Group
Plans"). The Company enters into agreements with local Group Plans for the
development and operation of individual Centers in specific geographical areas.
Currently the Company is negotiating with several Group Plans for the
development and operation of Centers in New York State and North and South
Carolina.
The Centers are designed to provide diagnostic services at reduced cost
for the insured member patients. Prices are generally below the existing
respective regional market prices for similar diagnostic services offered by
others.
The Company's operations had been severely limited due to the effect of
a judgment obtained by General Electric Company against the Company. The Company
and General Electric negotiated a settlement on February 8, 1996 whereby the
Company returned the 1.5 Vectra Tesla MRI unit and obtained a $700,000 credit to
be applied to reduce the $1,400,000 settlement. The balance due General Electric
is payable over a two year period. An order vacating its judgment was filed in
May, 1996. The Company expects to continue to meet its monthly obligations under
the lease for the 0.5 Tesla MRI unit located at Rome pursuant to the settlement.
Administration of Group Plan Centers
In the event the Company terminates any Group Plan agreements for
specific defaults, the Company is expected to generally retainthe right to
7
<PAGE
contract with other Group Plans to utilize the Centers. The Company is dependent
upon maintaining and developing affiliations with Group Plans for referrals. The
Company is also dependent upon a continuing public need for the services offered
by the Medical Diagnostic Centers in the locations as situated, proposed or to
be proposed.
The Company presently does and will concentrate its efforts on
development, operation and administration of the Company Centers. Continued
research on methods to improve operations, services, and equipment packages are
anticipated to be accomplished through monitoring of existing operations.
Services
The Company devotes its principal resources to developing, operating
and administering the use of its equipment in medical diagnostic centers which
provide medical diagnostic services for outpatients through practicing
physician-radiologists contracting for the use of the Company imaging equipment.
The Company contracts with and supports the medical practices of attending
radiologist-physicians who operate medical practices at the Centers. The Company
provides equipment and facilities and derives revenue from the use of its
equipment and facilities. The type and quantity of medical examinations
performed by the radiologist-physicians results in the equipment and facilities
usage fees derived by the Company. The Company provides administrative support
to the physician- radiologists, as necessary, but the Company has no authority
to direct the conduct or operation of the physician-radiologists' practices.
There are currently two Centers in operation, with a number in the planning and
development stage. Centers are usually constructed or rehabilitated, and
operated to provide a full complement of diagnostic services for a particular
institutional client or a particular physician group.
Domestic Opportunities
The Company's most active growth currently rests in the northeast
corridor and New York State. The Company continues to seek acquisition
opportunities and several negotiations are underway to establish Centers in
Upstate New York communities in Queensbury, Plattsburg, Glen Falls, and
Gloversville, which will serve a number of surrounding rural communities.
The Company has signed an agreement with Silk Road Health Care
Corporation to jointly develop a network of ten diagnostic imaging centers
throughout North Carolina and South Carolina. Once funding is approved by Silk
Road Investment Co. Ltd., an investment company will be organized by Silk Road
Health Care to fund such projects. There is no set date for the start of this
project. Each Center planned with Silk Road will offer a full range of
diagnostic imaging procedures, including MRI through mobile units and sharing of
equipment with an emphasis on women's health care.
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International Opportunities
The Company is planning to develop three Centers in Bolivia. These
Centers are expected to pioneer one of the first MRI diagnostic services in
Bolivia. Centers are currently being planned in Los Pas (Bolivia's capital),
Santa Cruz and Cochabamba.
Teleradiology
Through a teleradiology venture, the Company is planning to provide
electronic linkup through American Telemedia International to all of its
Centers, both in the United States and abroad, having the diagnostic images read
via teleradiology directly at Massachusetts General Hospital under the auspices
of the Company's consulting radiologist-physician and Harvard Medical School
professor, Dr. Kenneth Davis.
Consulting Agreements
On May 20, 1996, the Company entered into a Consulting Agreement with
Blue Water Consulting, Inc. which augments a previous Management Consulting
Agreement with Blue Water which was entered into on March 11, 1996. Pursuant to
the terms of the Blue Water Consulting Agreement, the Company agreed to issue to
Blue Water 700,000 shares of Common Stock of the Company in consideration for
consulting services to be provided to the Company over an anticipated 12-month
period commencing as of the date of the agreement. Blue Water is wholly-owned
by Mr. Greg Paige, who is the sole officer and director of Blue Water. Blue
Water will provide a predominant portion of its time during various periods over
the term of the Consulting Agreement. Supplementing various phases of activities
previously performed and currently being undertaken under the Management
Consulting Agreement, and based on the perceived success and effectiveness of
services rendered under the Management Consulting Agreement, Blue Water will
provide the following enumerated services: (i) further develop and enhance
of current operations and recommendations with regard to additional services and
geographic and service expansion; (ii) research, evaluation, due diligence and
negotiations with respect to strategic partners, joint ventures, acquisitions,
merger candidates and other venture partners; (iii) evaluate, introduce,
negotiate and facilitate the sources of credit, banking relations and related
financial opportunities; (iv) negotiate and assist the Company in terms
of developing sources for additional equipment purchases, leases, and asset
acquisitions supporting or augmenting the Company's current operations; (v)
evaluate, perform due diligence and assist the Company in negotiating various
contracts for the provision of the Company's products and services; (vi)
evaluate, make recommendations, locate service providers, additional consultants
and products in order to achieve technology upgrades for the Company's product
9
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and service lines; and (vii) evaluate and develop additional sales programs and
enhancement of existing market programs and new account development.
On May 20, 1996, the Company also entered into a Client Service
Agreement with Broad Street Marketing, Inc. Previously, the Company had entered
into a Marketing Consulting Agreement dated March 11, 1996 with Broad Street.
Under the terms of the Client Service Agreement, the Company agreed to issue to
Broad Street 600,000 shares of Common Stock of the Company in consideration for
consulting services to be provided to the Company over an anticipated 6-month
period, commencing at the date of the Client Service Agreement. Under the terms
of that Agreement, 300,000 shares of Common Stock are included in this
Prospectus while the remaining 300,000 shares of Common Stock are not included
in this prospectus based on the agreed upon allocation by Broad Street and the
Company of that portion of the Shares attributable to promotion of interest in
the Common Stock of the Company and those Shares attributable to other
consulting services. Broad Street is also wholly-owned by Mr. Greg Paige, who is
the sole officer and director of Broad Street. Broad Street has agreed to
provide at various phases over the term of the Client Service Agreement a
predominant portion of its time in fulfillment of the needs of the Company.
Under the terms of the Client Service Agreement, Broad Street will provide the
following enumerated services: (i) evaluate of the entire administrative and
personnel infrastructure of the Company; (ii) recommend a program to develop and
enhance the Company's human resources; (iii) evaluate and make recommendations
regarding the retaining of consultants and professional service providers
including the Company's lawyers, auditors, public relations firm and financial
advisors; (iv) evaluate, undertake background examinations, recruit and assist
the Company in the selection and employment of Board of Directors' candidates,
key executives and other management personnel; (v) advise the Company with
regard to the maximization of its financial resources and assist the Company in
attracting capital from the financial markets and other financial
intermediaries; (vi) review and analyze all aspects of the Company's financial
goals and make recommendations on feasibility and achievement of desired goals;
(vii) review of all of the general information and recent filings with
regulatory authorities and produce a corporate profile in brokerage style format
for use in general circulation in the financial community; (viii) establish a
basis for a network of firms and brokers interested in participating in the
Company's securities and schedule and conduct the necessary due diligence and
obtain the required approvals necessary for such firms to participate; (ix)
interview and make determinations as to any firms or brokers referred to the
Company with regard to their participation; and (x) assist the Company and be
available to field any calls from firms and brokers inquiring about the Company
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The Selling Security Holders intend to sell all or a portion of the
Shares from time to time in the over-the-counter market or in negotiated
transactions at market prices prevailing at the time or at negotiated prices,
and the Company will not receive any of the proceeds from such sales.
Federal Income Tax Effects
Common stock issued to a consultant in connection with the performance
of services must be included in gross income of the consultant, to the extent
such issuance is for less than fair market value, based on the difference
between the price actually paid and the fair market value of the shares in the
first taxable year in which the shares are issued and not subject to a
"substantial risk of forfeiture". A substantial risk of forfeiture exists where
rights and property that have been transferred are conditioned, directly or
indirectly, upon the future performance (or refraining from performance) of
substantial services by any person, or the occurrence of any condition related
to the purpose of the transfer, and the possibility of forfeiture is substantial
if such condition is not satisfied. Common stock received by a participant who
is subject to the short-swing profit recovery rule of Section 16(b) of the
Securities Exchange Act of 1934 is considered subject to a substantial risk of
forfeiture so long as the sale of such property at a profit could subject the
participant to suit under that action. Nevertheless, such holder may elect
within 30 days after the date of receipt to recognize ordinary income as of the
date of receipt. Inasmuch as the receipt of the shares was not subject to a
substantial risk of forfeiture, the recipient of the shares in lieu of salary
will be required to include in gross income the fair market value of the shares
at the time of receipt.
Restrictions Under Securities Laws
The sale of the Shares must be made in compliance with federal and
state securities laws. Officers, directors and 10% or greater stockholders of
the Company, as well as certain other persons or parties who may be deemed to be
"affiliates" of the Company under the Federal Securities Laws, should be aware
that resales by affiliates can only be made pursuant to an effective
Registration Statement, Rule 144 or any other applicable exemption. Officers,
directors and 10% and greater stockholders are also subject to the "short swing"
profit rule of Section 16(b) of the Securities Exchange Act of 1934.
SALES BY SELLING SECURITY HOLDERS
The following table sets forth the name of the Selling Security
Holders, the amount of shares of Common Stock held directly or indirectly by the
Selling Security Holders, the maximum amount of shares of Common Stock to be
offered by the Selling Security Holders, the amount of Common Stock to be owned
by the Selling Security Holders following sale of such shares of Common Stock
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and the percentage of shares of Common Stock to be owned by the Selling Security
Holders following completion of such offering (based on 12,969,460 shares of
Common Stock of the Company outstanding at April 30, 1996).
Percentage
Shares to be to be Owned
Name of Selling Number of Shares to Owned After After
Security Holder Shares Owned be Offered Offering Offering
- --------------- ------------ ---------- -------- --------
Blue Water
Consulting, Inc. 700,000 700,000 -0- --
Broad Street
Marketing, Inc. 600,000 300,000 300,000 2.3%
DESCRIPTION OF SECURITIES
The Company is currently authorized to issue up to 25,000,000 shares of
Common Stock, $.001 par value per share, of which 12,969,460 shares were
outstanding as of April 30, 1996. The Company is authorized to issue up to
5,000,000 shares of Preferred Stock, $.001 par value per share, none of which
were outstanding as of April 30, 1996.
Common Stock
Subject to the dividend rights of the holders of preferred stock,
holders of shares of Common Stock are entitled to share, on a ratable basis,
such dividends as may be declared by the Board of Directors out of funds legally
available therefor. Upon liquidation, dissolution or winding up of the Company,
after payment to creditors and holders of preferred stock that may be
outstanding, the assets of the Company will be divided pro rata on a per share
basis among the holders of the Common Stock.
Each share of Common Stock entitles the holders thereof to one vote.
Holders of Common Stock do not have cumulative voting rights which means that
the holders of more than 50% of the shares voting for the election of Directors
can elect all of the Directors if they choose to do so, and, in such event, the
holders of the remaining shares will not be able to elect any Directors. The
By-Laws of the Company require that only a majority of the issued and
outstanding shares of Common Stock of the Company need be represented to
constitute a quorum and to transact business at a stockholders' meeting. The
Common Stock has no preemptive, subscription or conversion rights and is not
redeemable by the Company.
Preferred Stock
The Board of Directors is authorized to issue the authorized and
unissued preferred stock in one or more series, to fix or alter the rights,
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preferences, privileges and restrictions, including the dividend rights,
dividend rate, conversion rights, voting rights and terms of redemption,
liquidation preferences and sinking fund of any series of preferred stock which
is authorized and unissued. No shares of Preferred Stock have been issued or are
outstanding as of the date hereof.
Over-The-Counter Market
The Company's Common Stock is traded on the OTC Bulletin Board of the
National Association of Securities Dealers, Inc. under the symbol "IMXS."
Transfer Agent
The Transfer Agent for the shares of Common Stock is North American
Transfer Compant, 147 West Merrick Road, Freeport, New York, 11520.
LEGAL MATTERS
Certain legal matters in connection with the securities being offered
hereby will be passed upon for the Company by Atlas, Pearlman, Trop & Borkson,
P.A., Special Counsel for the Company, Fort Lauderdale, Florida.
INDEMNIFICATION
The Company's Bylaws and the Nevada General Corporation Law provide for
indemnification of directors and officers against certain liabilities. Officers
and directors of the Company are indemnified generally against expenses actually
and reasonably incurred in connection with proceedings, whether civil or
criminal provided that it is determined that they acted in good faith, were not
found guilty in any criminal matter and had reasonable cause to believe that
their conduct was not unlawful.
The Company's Certificate of Incorporation further provides that a
director of the Company shall not be personally liable for monetary damages to
the Company or its shareholders for breach of any fiduciary duty as a director,
except for liability (i) for any breach of the director's duty or 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
the unlawful payments of dividends or stock redemption by the Company or (iv)
for any transaction from which the director derives an improper personal
benefit.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
- ------- ---------------------------------------
The documents listed in (a) through (d) below are incorporated by
reference in the Registration Statement. All documents subsequently filed by the
Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (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 the Registration Statement and to be part
thereof from the date of filing of such documents.
(a) The Registrant's Annual Report on Form 10-KSB for
the fiscal year ended December 31, 1995.
(b) The Company's Quarterly Report on Form 10-QSB for
the quarterly period ended March 31, 1996.
(c) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the Registrant's
document referred to in (a) above.
(d) The description of the Common Stock of the Company which
is contained in a Registration Statement filed under the Exchange Act, including
any amendment or report filed for the purpose of updating such description.
Item 4. Description of Securities
- ------- -------------------------
The class of securities to be offered hereby is not registered under
Section 12(g) of the Securities Exchange Act of 1934, as amended. A description
of the Company's securities is set forth in the Annual Report incorporated as a
part of this Registration Statement.
Item 5. Interests of Named Experts and Counsel
- ------- --------------------------------------
Not Applicable.
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Item 6. Indemnification of Directors and Officers
- ------- -----------------------------------------
The Company's Bylaws and the Nevada General Corporation Law provide for
indemnification of directors and officers against certain liabilities. Officers
and directors of the Company are indemnified generally against expenses actually
and reasonably incurred in connection with proceedings, whether civil or
criminal provided that it is determined that they acted in good faith, were not
found guilty in any criminal matter and had reasonable cause to believe that
their conduct was not unlawful.
The Company's Certificate of Incorporation further provides that a
director of the Company shall not be personally liable for monetary damages to
the Company or its shareholders for breach of any fiduciary duty as a director,
except for liability (i) for any breach of the director's duty or 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
the unlawful payments of dividends or stock redemption by the Company or (iv)
for any transaction from which the director derives an improper personal
benefit.
Item 7. Exemption from Registration Claimed
- ------- -----------------------------------
Inasmuch as the Consultants who received the Options of the Company
were knowledgeable, sophisticated and had access to comprehensive information
relevant to the Company, such transaction was undertaken in reliance on the
exemption from registration provided by Section 4(2) of the Act. As a condition
precedent to such grant, the Consultants were required to express an investment
intent and consent to the imprinting of a restrictive legend on each stock
certificate to be received from the Company except upon sale of the underlying
shares of Common Stock pursuant to a registration statement.
Item 8. Exhibits
- ------- --------
Exhibit Description
- ------- -----------
(4)(a) Consulting Agreement with Blue Water Consulting, Inc.
(4)(b) Client Service Agreement with Broad Street Marketing,
Inc.
(5) Opinion of Atlas, Pearlman, Trop & Borkson, P.A. relating
to the issuance of shares of securities pursuant to the
above Consulting Agreements
(23.1) Consent of Atlas, Pearlman, Trop & Borkson, P.A. included
in the opinion filed as exhibit (5) hereto
(23.2) Consent of independent certified public accountants
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Item 9. Undertakings
- ------- ------------
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offerings 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 change to such
information in the Registration Statement;
(b) That, for the purposes of determining any liability under
the 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; and
(c) 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.
(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the Act
may be permitted to Directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a Director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
Director, officer or controlling person in connection with the securities being
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 Act and will be governed by the final adjudication of
such issue.
iii
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S- 8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Albany and the State of New York, on the 6th day
of June, 1996.
IMAGEX SERVICES, INC.
By:/s/Andrew F. Capoccia
-------------------------
Andrew F. Capoccia
President and
Chief Executive Officer
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 and on the dates indicated.
Signature Title Date
--------- ----- ----
President, Principal
Executive Officer,
Principal Financial
and Accounting Officer
/s/Andrew F. Capoccia and Director June 6, 1996
- ---------------------
Andrew F. Capoccia
iv
Consulting Agreement with Blue Water Consulting, Inc.
BLUE WATER CONSULTING, INC.
1515 N. Federal Highway, Suite 211
Boca Raton, Florida 33432
May 20, 1996
Andrew F. Capoccia, President
Imagex Services, Inc.
80 Wolf Road, Suite 503
Albany, New York 12205
RE: CONSULTING AGREEMENT
Dear Mr. Capoccia:
Formalizing our earlier discussions this is to acknowledge and confirm
the terms of our Consulting Agreement ("Consulting Agreement") as follows:
1. APPOINTMENT OF BLUE WATER CONSULTING, INC. ImagexServices, Inc.
(the "Company") hereby engages Blue Water Consulting, Inc. ("BWCI") and BWCI
hereby agrees to render services to the Company as a special consultant and
advisor.
2. DUTIES. During the term of this Agreement BWCI shall provide
advice to, undertake for and consult generally with the Company concerning the
following and related services: (i) further development and enhancement of
current operations and recommendations with regard to additional services and
geographic and service expansion; (ii) research, evaluation, due diligence and
negotiations with respect to strategic partners, joint ventures, acquisitions,
merger candidates and other venture partners; (iii) evaluate, introduce,
negotiate and facilitate the sources of credit, banking relations and related
financial opportunities; (iv) negotiate and assist the Company in terms of
developing sources for additional equipment purchases, leases, and asset
acquisitions supporting or augmenting the Company's current operations; (v)
evaluate, perform due diligence and assist the Company in negotiating various
contracts for the provision of the Company's products and services; (vi)
evaluate, make recommendations, locate service providers, additional consultants
and products in order to achieve technology upgrades for the Company's product
and service lines; and (vii) evaluate and develop additional sales programs and
enhancement of existing market programs and new account development.
1
<PAGE>
Mr. Andrew F. Capoccia
Imagex Services, Inc.
May 20, 1996
Page 2
3. TERM. The term of this Consulting Agreement shall be for a
twelve-month period commencing on the date hereof.
4. COMPENSATION. As compensation for its services hereunder, BWCI
shall be issued seven hundred thousand (700,000) shares of Common Stock, $.001
par value (the "Shares").
5. INVESTMENT RESTRICTIONS. Upon issuance appropriate investment
restrictions shall be noted against the Shares.
6. EXPENSES. BWCI shall be entitled to reimbursement by the Company
of such reasonable out-of-pocket expenses as BWCI may incur in performing
services under this Consulting Agreement. Any significant expenses shall be
approved in advance with the Company.
7. REGISTRATION. The Company agrees to provide BWCI withregistration
rights at the Company's cost and expense and include the shares of Common Stock
in a registration statement to be filed by the Company with the Securities and
Exchange Commission within the proximate future.
8. CONFIDENTIALITY. BWCI will not disclose to any other person, firm
or corporation, nor use for its own benefit, during or after the term of this
Consulting Agreement, any trade secrets or other information designated as
confidential by the Company which is acquired by BWCI in the course of its
performing services hereunder. (A trade secret is information not generally
known to the trade which gives the Company an advantage over its competitors.
Trade secrets can include, by way of example, products or services under
development, production methods and processes, sources of supply, customer
lists, marketing plans and information concerning the filing of pendency of
patent applications). Any management advice rendered by BWCI pursuant to this
Consulting Agreement may not be disclosed publicly in any manner without the
prior written approval of BWCI.
9. INDEMNIFICATION. The Company agrees to indemnify and hold BWCI
harmless from and against all losses, claims, damages, liabilities, costs or
expenses (including reasonable attorneys' fees (collectively the "Liabilities")
joint and several, arising out of the performance of this Consulting Agreement,
whether or not BWCI is a part to such dispute. This indemnity shall not apply,
however, and BWCI shall indemnify and hold the Company, its affiliates, control
persons, officers, employees and agents harmless from and against all
liabilities, where a court of competent jurisdiction has made a final
determination that BWCI engaged in gross negligence or willful misconduct in the
performance of its services hereunder which gave rise to the
2
<PAGE>
Mr. Andrew F. Capoccia
Imagex Services, Inc.
May 20, 1996
Page 3
losses, claim, damage, liability, cost or expense sought to be recovered
hereunder (but pending any such final determination, the indemnification and
reimbursement provision of this Consulting Agreement shall apply and the Company
shall perform its obligations hereunder to reimburse BWCI for its expenses.) The
provisions of this paragraph 8 shall survive the termination and expiration of
this Consulting Agreement.
10. INDEPENDENT CONTRACTOR. BWCI and the Company hereby acknowledge
that BWCI is an independent contractor. BWCI shall not hold itself out as, nor
shall it take any action from which others might infer, that it is a partner of,
agent of or a joint venturer of the Company.
11. MISCELLANEOUS. This Consulting Agreement sets forth the entire
understanding of the parties relating to the subject matter hereof, and
supersedes and cancels any prior communications, understandings and agreements
between the parties. This Consulting Agreement cannot be modified or changed,
nor can any of its provisions be waived, except by written agreement signed by
all parties. This Consulting Agreement shall be governed by the laws of the
State of New York. In the event of any dispute as to the terms of this
Consulting Agreement, the prevailing party in any litigation shall be entitled
to reasonable attorneys' fees
Please confirm that the foregoing correctly sets forth our
understanding by signing the enclosed copy of this letter where provided and
returning it to us at your earliest convenience.
Very truly yours,
BLUE WATER CONSULTING, INC.
By: /S/GREGORY L. PAIGE
---------------------------
Gregory L. Paige, President
ACCEPTED AND AGREED TO as
of the 20th day of May 1996
IMAGEX SERVICES, INC.
By: /S/ANDREW F. CAPOCCIA
-------------------------------
Andrew F. Capoccia, President
3
Client Service Agreement with Broad Street Marketing, Inc
CLIENT SERVICE AGREEMENT
------------------------
THIS CLIENT SERVICE AGREEMENT is entered into as of the 20th day of May
1996, by and between IMAGEX SERVICES, INC., ("Imagex"), a Nevada corporation,
with its principal place of business at 80 Wolf Road, Suite 503, Albany, New
York 12205 and BROAD STREET MARKETING, INC. ("Broad Street"), a Florida
corporation, with its principal place of business at 1515 N. Federal Highway,
Suite 211, Boca Raton, Florida 33432.
Imagex and Broad Street agree as follows:
1. Employment.
-----------
Subject to the right of Imagex to perform and carry out the
following, Imagex hereby retains the services of Broad Street and Broad Street
hereby accepts employment by Imagex, in connection with the reorganization of
the administrative structure and functions of Imagex, the evaluation and
recruitment of personnel and service providers to Imagex and to structure a
financial services program for Imagex.
2. Services to be Performed.
------------------------
(a) In respect to administrative and personnel related
services, the following: (i) evaluation of entire administrative and personnel
infrastructure of Imagex; (ii) recommend a program to develop and enhance
Imagex' human resources; (iii) evaluate and make recommendations regarding the
retaining of consultants and professional service providers including Imagex'
lawyers, auditors, public relations firm and financial advisors; and (iv)
evaluate, undertake background examinations, recruit and assist Imagex in the
selection and employment of Board of Directors' candidates, key executives and
other management personnel.
(b) In respect to the structuring of a financial public
relations program, the following: (i) advise Imagex with regard to the
maximization of its financial resources and assist Imagex in attracting capital
from the financial markets and other financial intermediaries; (ii) review and
analyze all aspects of Imagex' financial goals and make recommendations on
feasibility and achievement of desired goals; (iii) review of all of the general
information and recent filings with regulatory authorities and produce a
corporate profile of Imagex in brokerage style format for use in general
circulation in the financial community; (iv) establish a basis for a network of
firms and brokers interested in participating in Imagex' securities and schedule
and conduct the necessary due diligence and obtain the required approvals
necessary for such firms to participate; (v) interview and make determinations
as to any firms or brokers referred to Imagex with regard
<PAGE>
to their participation; and (vi) assist Imagex and be available to field any
calls from firms and brokers inquiring about Imagex.
3. Prior Approval of Imagex.
------------------------
No obligations shall be incurred by Broad Street on behalf of
Imagex without first obtaining the prior written approval from Imagex. Imagex
may require the submission of details of written proposals by Broad Street with
regard to all anticipated details prior to granting approval. Imagex expressly
reserves the right, in its own discretion, and for reasons deemed by it to be
sufficient, to modify and reject any and all schedules and plans submitted by
Broad Street, and to direct Broad Street to cease work in connection therewith;
and in such case, Broad Street shall immediately notify all publishers,
printers, engravers, artists, designers, actors, or other third parties engaged
in carrying out such schedules or plans to cease work thereon.
4. Expenses.
--------
Imagex shall pay Broad Street for all costs incurred and
expenditures made on behalf of Imagex for approved services. Imagex shall pay
Broad Street in funds in time for it to pay on due date all proper charges from
owners of media and other third parties, but only after receipt of Broad
Street's bill therefor.
5. Term.
----
The term of this Agreement shall be for a six-month period
commencing on the date hereof.
6. Compensation.
------------
As compensation for its services hereunder, Broad Street shall
be issued six hundred thousand (600,000) shares of Common Stock, $.001 par value
(the "Shares").
7. Investment Restrictions.
-----------------------
Upon issuance appropriate investment restrictions shall be
noted against the Shares.
8. Registration.
------------
The Company agrees to provide Broad Street with registration
rights at the Company's cost and expense and include 300,000 of the shares of
Common Stock in a registration statement to be filed by the Company with the
Securities and Exchange Commission within the proximate future.
2
<PAGE>
9. Confidentiality.
---------------
(a) As used herein, "confidential information" means any and
all technology and information which consists of or makes up the services of
Imagex, or which may consist of future or proposed products or services, except
such technology or information which is publicly known prior to the date of this
agreement and is known to Broad Street prior to disclosure from Imagex, or
subsequent to the date of this agreement, becomes publicly and openly known
through no fault of Broad Street. Features of any product or services marketed
by Imagex to any third parties not under an obligation of confidentiality to
Imagex, e.g., consumers and distributors, shall not be considered confidential
information as of the earliest date of such sale to a third party.
(b) Broad Street acknowledges and agrees that the sale or
unauthorized use or disclosure of any of Imagex's confidential information or
trade secrets shall constitute unfair competition, either during or after the
term of this agreement. Imagex shall be entitled upon proof thereof, to
injunctive relief and such other and additional consequential and special
damages as may be incurred by Imagex.
10. Independent Contractor.
----------------------
Broad Street and Imagex hereby acknowledge that Broad Street
is an independent contractor. Broad Street shall not hold itself out as, nor
shall it take any action from which others might infer, that it is a partner of,
agent of or a joint venturer of Imagex.
11. Miscellaneous.
-------------
(a) This agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
(b) If any one or more of the provisions of this Agreement
shall be held invalid or unenforceable, the validity and enforceability of the
remainder of this Agreement shall not be affected thereby.
(c) This Agreement constitutes the entire agreement, and
supersedes all prior oral or written agreements (excluding any
agreements relating to confidentiality), understanding, representations, and
other communication between the parties on the subject of the continuing
relationship between them.
(d) Except as otherwise provided herein, this Agreement may be
modified or amended only in writing, signed by both parties hereto.
3
<PAGE>
(e) Neither party shall be liable for any loss or damage of
any nature incurred or suffered as a result of any failure or delay in
performance due to any cause or circumstance beyond its reasonable control,
including without limitation, strikes, lockouts, fires, riots, governmental
orders, war and other acts of Gold.
(f) Any notice, request, demand, or other communication
required or permitted hereunder shall be deemed to be property given when
deposited in the United States mail, postage prepaid, or when transmitted by
facsimile with proof of delivery to the address as provided herein.
(g) The failure of either party at any time to require
performance by the other party of any provision hereof shall not affect in any
way the full right to require such performance any time thereafter. Nor shall
the waiver by either party a breach of any provision hereof be taken or held to
be a waiver of the provision itself.
(h) Broad Street shall not transfer or assign the
Agreement or any part thereof without the written consent of
Imagex.
(i) This Agreement, including the terms and provisions thereof
shall be binding upon the successors and assigns of Broad Street and Imagex.
IN WITNESS WHEREOF, this agreement is executed as of the date and year
first above written.
BROAD STREET MARKETING, INC., IMAGEX SERVICES, INC.,
a Florida corporation a Nevada corporation
By:/s/Gregory L. Paige By:/s/Andrew F. Capoccia
------------------- ---------------------
Gregory L. Paige, Andrew F. Capoccia,
President President
4
Opinion of Atlas, Pearlman, Trop & Borkson, P.A. relating to the
relating to the issuance of shares of securities
pursuant to the above Consulting Agreements
ATLAS, PEARLMAN, TROP & BORKSON, P.A.
Direct Line: (954) 766-7858
June 6, 1996
Imagex Services, Inc.
80 Wolf Road, Suite 503
Albany, New York 12205
Re: Registration Statement on Form S-8, Consulting Agreements with
Blue Water Consulting, Inc. and Broad Street Marketing, Inc.
Gentlemen:
This opinion is submitted pursuant to the applicable rules of the
Securities and Exchange Commission with respect to the registration by Imagex
Services, Inc. (the "Company") of 1,000,000 shares of Common Stock, par value
$.001 per share (the "Common Stock") issued pursuant to a Consulting Agreement
with Blue Water Consulting, Inc. and separate Client Service Agreement with
Broad Street Marketing, Inc. (collectively, the "Agreements").
In our capacity as counsel to the Company, we have examined the
original, certified, conformed, photostat or other copies of the Agreements, the
Company's Articles of Incorporation, By-Laws and corporate resolutions provided
to us by the Company. We have been advised by the Company that its Form 10-KSB
Annual Report and Form 10-QSB Quarterly Report have been accepted for filing by
the Securities and Exchange Commission. In all such examinations, we have
assumed the genuineness of all signatures on original documents, and the
conformity to originals or certified documents of all copies submitted to us as
conformed, photostat or other copies. In passing upon certain corporate records
and documents of the Company, we have necessarily assumed the correctness and
completeness of the statements made or included therein by the Company and we
express no opinion thereon.
Based upon and in reliance of the foregoing, we are of the opinion that
the Common Stock, assuming issuance in accordance with the terms of the
Agreements, will be validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion in the Registration
Statement on Form S-8 to be filed with the Commission.
Very truly yours,
/s/ ATLAS, PEARLMAN, TROP & BORKSON, P.A.
-----------------------------------------
ATLAS, PEARLMAN, TROP & BORKSON, P.A.
JMS/bb
EXHIBIT (23.2)
Consent of independent certified public accountants
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement of
Imagex Services, Inc. on Form S~8 of our report dated May 17, 1996 (which
expresses an unqualified opinion and includes an explanatoty paragraph
relating to the Company's ability to continue as a going concern) appearing
in the Annual Report on Form 1O-KSB of Imagex Services, Inc. for the year
ended December 31, 1995.
/s/ Disanto Bertoline & Company, P.C.
Glastonhury, Connecticut
June 10, 1996
