Unassociated Document
UNITED
STATES
SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
3DICON
CORPORATION
(Exact
name of issuer as specified in its charter)
OKLAHOMA
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73-1479206
|
|
(I.R.S.
Employer
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incorporation
or organization)
|
Identification
No.)
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6804
South Canton Avenue, Suite 150
Tulsa,
Ok 74136
TELEPHONE:
(918) 494-0505
(Address
of Principal Executive Offices and Zip Code)
2010
INCENTIVE STOCK PLAN
(Full title of the
plan)
John M.
O’Connor, Esq.
Newton,
O’Connor, Turner & Ketchum
15
W. Sixth Street, Suite 2700
Tulsa,
OK 74119
(Name and
address of agent for service)
Copies of
all communications, including all communications
sent to
agent for service to:
Gregory
Sichenzia, Esq.
Sichenzia
Ross Friedman Ference LLP
61
Broadway
New
York, NY 10006
(212)
930-9700
(212)
930-9725 (fax)
CALCULATION
OF REGISTRATION FEE
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|
|
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PROPOSED
MAXIMUM
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|
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PROPOSED
MAXIMUM
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|
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TITLE OF
SECURITIES TO BE REGISTERED
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AMOUNT TO
BE
|
|
|
OFFERING
PRICE PER
|
|
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AGGREGATE
OFFERING
|
|
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AMOUNT OF
REGISTRATION
|
|
COMMON STOCK
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REGISTERED
|
|
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SHARE(2)
|
|
|
PRICE
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|
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FEE
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|
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|
|
|
|
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|
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$.0002
PAR VALUE(1)
|
|
|
75,000,000 |
|
|
$ |
0.0051 |
|
|
$ |
382,500 |
|
|
$ |
27.27 |
|
Totals
|
|
|
75,000,000 |
|
|
$ |
0.0051 |
|
|
$ |
382,500 |
|
|
$ |
27.27 |
|
(1)
Represents the maximum aggregate number of shares presently issuable under the
3DIcon Corporation 2009 Incentive Stock Plan.
(2)
Computed pursuant to Rule 457(c) and (h) on the basis of the average of the high
and low prices of the Common Stock as reported on February 25, 2010 on the OTC
Bulletin Board.
PART
1
INFORMATION
REQUIRED IN THIS Section 10(a) Prospectus
This
Registration Statement relates to two separate prospectuses.
SECTION
10(A) PROSPECTUS: Items 1 and 2, from this page, and the documents incorporated
by reference pursuant to Part II, Item 3 of this prospectus, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act of
1933, as amended (the "Securities Act").
REOFFER
PROSPECTUS: The material that follows Item 2, up to but not including Part II of
this Registration Statement, of which the reoffer prospectus is a part,
constitutes a "reoffer prospectus," prepared in accordance with the requirements
of Part I of Form S-3 under the Securities Act. Pursuant to Instruction C of
Form S-8, the reoffer prospectus may be used for reoffers or resales of common
shares which are deemed to be "control securities" or "restricted securities"
under the Securities Act that have been acquired by the selling shareholders
named in the reoffer prospectus.
ITEM
1. PLAN INFORMATION.
3DIcon
Corporation ("We", "us", "our company" or "3DIcon") will provide each
participant (the "Recipient") with documents that contain information related to
our 2010 Incentive Stock Plan and other information including, but not limited
to, the disclosure required by Item 1 of Form S-8, which information is not
filed as a part of this Registration Statement on Form S-8 (the "Registration
Statement"). The foregoing information and the documents incorporated by
reference in response to Item 3 of Part II of this Registration Statement taken
together constitute a prospectus that meets the requirements of Section 10(a) of
the Securities Act. A Section 10(a) prospectus will be given to each Recipient
who receives common shares covered by this Registration Statement, in accordance
with Rule 428(b)(1) under the Securities Act.
ITEM
2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
We will
provide to each Recipient a written statement advising them of the availability
of documents incorporated by reference in Item 3 of Part II of this Registration
Statement and of documents required to be delivered pursuant to Rule 428(b)
under the Securities Act without charge and upon written or oral notice by
contacting:
Martin
Keating
Chief
Executive Officer
6804
South Canton Avenue, Suite 150
Tulsa, OK
74136
(918)
494-0505
INFORMATION
REQUIRED BY PART I TO BE CONTAINED IN SECTION 10(a) PROSPECTUS IS OMITTED FROM
THE REGISTRATION STATEMENT IN ACCORDANCE WITH RULE 428 UNDER THE SECURITIES ACT
OF 1933, AND NOTE TO PART I OF FORM S-8.
REOFFER
PROSPECTUS
3DICON
CORPORATION
10,250,895
SHARES OF
COMMON
STOCK
This
reoffer prospectus relates to the sale of 10,250,895 shares of our common
stock, $.0002 par value per share, that may be offered and resold from time to
time by certain eligible participants and existing selling shareholders
identified in this prospectus for their own account issuable upon exercise of
currently outstanding stock options which have been issued pursuant to the
unanimous written consent of our Board of Directors and pursuant to the
employment agreement of one of our officers. It is anticipated that the selling
shareholders will offer common shares for sale at prevailing prices on the OTC
Bulletin Board on the date of sale. We will receive no part of the proceeds from
sales made under this reoffer prospectus. The selling shareholders will bear all
sales commissions and similar expenses. Any other expenses incurred by us in
connection with the registration and offering and not borne by the selling
shareholders will be borne by us.
The
shares of common stock will be issued pursuant to awards granted by the
unanimous written consent of our Board of Directors and pursuant to the
employment agreement of certain officers and will be "control securities"
under the Securities Act before their sale under this reoffer prospectus. This
reoffer prospectus has been prepared for the purposes of registering the common
shares under the Securities Act to allow for future sales by selling
shareholders on a continuous or delayed basis to the public without
restriction.
The
selling shareholders and any brokers executing selling orders on their behalf
may be deemed to be "underwriters" within the meaning of the Securities Act, in
which event commissions received by such brokers may be deemed to be
underwriting commissions under the Securities Act.
Our
common stock is traded on the OTC Bulletin Board under the symbol "TDCP". On
February 25, 2010, the closing price of our common stock on such market was
$0.0052 per share.
INVESTING
IN OUR COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" ON PAGE 15 OF THIS
REOFFER PROSPECTUS. THESE ARE SPECULATIVE SECURITIES.
SINCE OUR
COMPANY DOES NOT CURRENTLY MEET THE REGISTRANT REQUIREMENTS FOR USE OF FORM S-3,
THE AMOUNT OF COMMON SHARES WHICH MAY BE RESOLD BY MEANS OF THIS REOFFER
PROSPECTUS BY EACH OF THE SELLING STOCKHOLDER, AND ANY OTHER PERSON WITH WHOM HE
OR SHE IS ACTING IN CONCERT FOR THE PURPOSE OF SELLING SECURITIES OF OUR
COMPANY, MUST NOT EXCEED, IN ANY THREE MONTH PERIOD, THE AMOUNT SPECIFIED IN
RULE 144(e) PROMULGATED UNDER THE SECURITIES ACT.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENCE.
The date
of this prospectus is February 26, 2010.
TABLE OF
CONTENTS
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Page
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Prospectus
Summary
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5
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Risk
Factors
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6
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Cautionary
Note Regarding Forward-Looking Statements
|
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10
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Determination
of Offering Price
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10
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Use
of Proceeds
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10
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Selling
Stockholders
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10
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Plan
of Distribution
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12
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Legal
Matters
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13
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Experts
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13
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Incorporation
of Documents by Reference
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14
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Disclosure
of Commission Position on Indemnification For Securities Act
Liabilities
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14
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Additional
Information Available to You
|
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15
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NO PERSON
HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS,
OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, IN CONNECTION WITH THE OFFERING
MADE HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY OTHER PERSON.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER
ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES
OFFERED HEREBY BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION.
The
following summary highlights selected information contained in this prospectus.
This summary does not contain all the information you should consider before
investing in the securities. Before making an investment decision, you should
read the entire prospectus carefully.
PROSPECTUS
SUMMARY
OUR
COMPANY
3DIcon
Corporation is a development stage company. Our mission is to pursue, develop
and market full-color, 360-degree person-to-person holographic technology that
is both simple and portable. Through a “sponsored research agreement” with the
University of Oklahoma, we have obtained the world-wide marketing rights to
certain 3D display systems under development by the University. The development
to date has resulted in the University filing six provisional patent
applications, five of which have been converted and consolidated into
three utility patent applications on its technology. At this time, we do
not own any intellectual property rights in holographic technologies, and, apart
from the sponsored research agreement with the University of Oklahoma, have no
contracts or agreements pending to acquire such rights or any other interest in
such rights. We plan to market the technology developed by the University of
Oklahoma by targeting various industries, such as retail, manufacturing,
entertainment, medical, healthcare, and the military.
For the
nine months ended September 30, 2009, we had total revenues of
$33,903. For the year ended December 31, 2008, we had total revenues
of $42,900. For the nine months ended September 30, 2009, we incurred a net
loss of $1,184,151. For the years ended December 31, 2008 and 2007, we incurred
a net loss of $3,611,550 and $3,928,996, respectively. As a result of our
insufficient revenues to fund development and operating expenses, our auditors
have expressed substantial doubt about our ability to continue as a going
concern.
The
Offering
Common
stock outstanding before the offering
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|
373,387,244
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|
|
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Common
stock offered by selling stockholder
|
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10,250,895
shares
|
|
|
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Common
stock to be outstanding after the offering
|
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383,638,139 shares
|
|
|
|
Use
of proceeds
|
|
We
will not receive any proceeds from the resale of the shares offered
hereby.
|
|
|
|
OTC
Bulletin Board Ticker Symbol
|
|
TDCP
|
The above
information regarding common stock to be outstanding after the offering is based
on 373,387,244 shares of common stock outstanding as of February 23,
2010.
RISK
FACTORS
Our
business involves a high degree of risk. Potential investors should carefully
consider the risks and uncertainties described below and the other information
in this prospectus before deciding whether to invest in shares of our common
stock. Each of the following risks may materially and adversely affect our
business, results of operations and financial condition. These risks may cause
the market price of our common stock to decline, which may cause you to lose all
or a part of the money you paid to buy our common stock.
Risks
Relating to Our Business
We
have a limited operating history, as well as a history of operating
losses.
We have a
limited operating history. We cannot assure you that we can achieve or sustain
revenue growth or profitability in the future. We have a cumulative net loss of
$12,194,230 for the period from inception (January 1, 2001) to September 30,
2009. Our operations are subject to the risks and competition inherent in
the establishment of a business enterprise. Unanticipated problems, expenses,
and delays are frequently encountered in establishing a new business and
marketing and developing products. These include, but are not limited to,
competition, the need to develop customers and market expertise, market
conditions, sales, marketing and governmental regulation. Our failure to meet
any of these conditions would have a materially adverse effect upon us and may
force us to reduce or curtail our operations. Revenues and profits, if any, will
depend upon various factors. We may not achieve our business objectives and the
failure to achieve such goals would have an adverse impact on our
business.
Currently,
our only significant assets are our sponsored research agreement with the
University of Oklahoma and the exclusive license agreement covering the
technology on which the University of Oklahoma is currently working on. Our
ability to accomplish our business plan relies entirely on the ability of the
University of Oklahoma to successfully develop a marketable 3D communications
technology.
Our only
significant assets at the present time are our sponsored research agreement with
the University of Oklahoma and the exclusive license agreement covering the
technology on which the University of Oklahoma is currently working on. In
October 2008, however, Dr. Hakki Refai, the former chief researcher at the
University of Oklahoma joined the Company as our Chief Technology
Officer. Any technology independently developed by Dr. Refai
subsequent to October 2008, will be the sole property of 3DIcon. If
we or the University of Oklahoma researchers are not successful in
developing 3D communications technology that we have envisioned in our
business plan, our ability to generate revenues from marketing of the product
or technologies on which our business plan is based will be severely
impacted, which could threaten the very existence of the Company.
Even if
we or the University of Oklahoma researchers are successful in
developing 3D communications technology, because of the revolutionary
nature of such technology (i.e., no similar technology currently exists, and
there are numerous unknowns relating to the technology, such as manufacturing
costs and operational costs), there can be no assurance that our marketing plans
for the technology will be successful.
Therefore,
the fact that our success depends significantly on the efforts of others to
develop a technologically challenging new product that will be in a form readily
marketable and acceptable to a given market, and our ability to then
successfully market such technology, makes an investment in the Company much
more risky than a comparable investment in other companies that may have a broad
range of existing, proven products.
We
may not be able to compete successfully.
Although
the 3D imaging and display technology that we are attempting to develop is new,
and although at present we are aware of only a limited number of companies that
have publicly disclosed their attempts to develop similar technology, we
anticipate a number of companies are or will attempt to develop products that
compete or will compete with our products. Further, even if we are the first to
market with a product of this type, and even if the technology is protected by
patents or otherwise, because of the vast market and communications potential of
such a product, we anticipate the market will be flooded by a variety of
competitors (including traditional communications companies), many of which will
offer a range of products in areas other than those in which we compete, which
may make such competitors more attractive to prospective customers. In addition,
many if not all of our competitors and potential competitors will initially be
larger and have greater financial resources than we do. Some of the companies
with which we may now be in competition, or with which we may compete in the
future, have or may have more extensive research, marketing and manufacturing
capabilities and significantly greater technical and personnel resources than we
do, even given our relationship to the University of Oklahoma, and may be better
positioned to continue to improve their technology in order to compete in an
evolving industry. Further, technology in this industry may evolve rapidly once
an initially successful product is introduced, making timely product innovations
and use of new technologies essential to our success in the marketplace. The
introduction by our competitors of products with improved technologies or
features may render any product we initially market obsolete and unmarketable.
If we do not have available to us products that respond to industry changes in a
timely manner, or if our products do not perform well, our business and
financial condition will be adversely affected.
The
products being developed may not gain market acceptance.
The
products that we are currently developing utilize new technologies. As with any
new technology, in order for us to be successful, these technologies must gain
market acceptance. Since the products that we anticipate introducing to the
marketplace will exploit or encroach upon markets that presently utilize
or are serviced by products from competing technologies, meaningful commercial
markets may not develop for our products.
If
we are unable to retain the services of Martin Keating, our Chief Executive
Officer and Dr. Hakki Refai, our Chief Technology Officer, or if we are unable
to successfully recruit qualified personnel having experience in our business,
we may not be able to continue our operations.
Our
success depends to a significant extent upon the continued service of Martin
Keating, our founder, Chief Executive Officer, and a Director and Dr. Hakki
Refai, our Chief Technology Officer. Our success also depends on our ability to
attract and retain other key executive officers. Loss of the services of Mr.
Keating could have a material adverse effect on our growth, revenues, and
prospective business. In addition, in order to successfully implement and manage
our business plan, we will be dependent upon, among other things, successfully
recruiting qualified personnel having experience in business. Competition for
qualified individuals in our industry is intense. There can be no assurance that
we will be able to find, attract and retain existing employees or that we will
be able to find, attract and retain qualified personnel on acceptable
terms.
Our
auditors have included an emphasis paragraph in their opinion relating to an
uncertainty as to our ability to continue as a going concern, which may make it
more difficult for us to raise capital.
Our
auditors in their report dated April 15, 2009, have included an emphasis
paragraph in their opinion on our financial statements because of concerns about
our ability to continue as a going concern. These concerns arise from the fact
that we are a development stage organization with insufficient revenues to fund
development and operating expenses. If we are unable to continue as a going
concern, you could lose your entire investment in us.
We
will need significant additional capital, which we may be unable to
obtain.
Our
capital requirements in connection with our development activities and
transition to commercial operations have been and will continue to be
significant. We will require substantial additional funds to continue research,
development and testing of our technologies and products, to obtain intellectual
property protection relating to our technologies when appropriate, and to
manufacture and market our products. There can be no assurance that financing
will be available in amounts or on terms acceptable to us, if at
all.
Risks
Relating to Our Current Financing Arrangements:
There
are a large number of shares underlying our convertible debentures, and warrants
that may be available for future sale and the sale of these shares may depress
the market price of our common stock.
As
of February 23, 2010, we had approximately 373,387,244 shares of common
stock issued and outstanding and convertible debentures outstanding that may be
converted into an estimated 4,168,884,001 shares of common stock at the February
23, 2010 market price of $0.0043. The number of shares of common stock issuable
upon conversion of the outstanding convertible debentures may increase if the
market price of our stock declines. We also have outstanding warrants issued to
Golden State Equity Investors, Inc. f/k/a Golden Gate Investors (“Golden State”)
to purchase 941,683 shares of common stock at an exercise price of $10.90. The
sale of the shares underlying the convertible debentures and warrants may
adversely affect the market price of our common stock.
Our
obligation to issue shares upon conversion of our convertible debentures is
essentially limitless.
The conversion price of our
convertible debentures is continuously adjustable, which could require
us to issue a
substantially greater number of shares, which will cause dilution to our
existing stockholders.
The
following is an example of the amount of shares of our common stock that are
issuable, upon conversion of our 4.75% $100,000 convertible debentures
(excluding accrued interest) issued to Golden State on November 3, 2006, based
on the remaining principal balance of $92,668 and market prices 25%, 50% and 75%
below the market price as of February 23, 2010 of $0.043
% Below
Market
|
|
Price Per
Share
|
|
|
Effective
Conversion
Price
|
|
|
Number
of Shares
Issuable(1)
|
|
|
% of
Outstanding
Stock
|
|
25
|
%
|
$ |
0.00338 |
|
|
$ |
0.00270 |
|
|
|
2,830,603,484 |
|
|
|
763
|
% |
50
|
%
|
$ |
0.00225 |
|
|
$ |
0.00180 |
|
|
|
5,662,133,651 |
|
|
|
1,527
|
% |
75
|
%
|
$ |
0.00113 |
|
|
$ |
0.00090 |
|
|
|
11,325,193,984 |
|
|
|
3,054
|
% |
(1)
Shares issuable excludes 941,683 shares underlying the remaining warrants
exercisable at $10.90 per share and cash proceeds of $10,264,345
The
following is an example of the amount of shares of our common stock that are
issuable, upon conversion of the $1.25 million convertible debenture issued to
Golden State on January 15, 2008 (the “Second Debenture”) (excluding accrued
interest), based on the principal balance of $463,558 and market prices 25%, 50%
and 75% below the market price as of February 23, 2010 of $0.0043
|
|
|
|
Effective
|
|
Number
|
|
% of
|
|
% Below
|
|
Price Per
|
|
Conversion
|
|
of Shares
|
|
Outstanding
|
|
Market
|
|
Share
|
|
Price
|
|
Issuable
|
|
Stock
|
|
25
|
% |
|
$ |
0.00338 |
|
|
$ |
0.00340 |
|
|
|
152,611,733 |
|
|
|
41
|
% |
50
|
% |
|
$ |
0.00225 |
|
|
$ |
0.00203 |
|
|
|
228,917,600 |
|
|
|
62
|
% |
75
|
% |
|
$ |
0.00113 |
|
|
$ |
0.00010 |
|
|
|
457,835,200 |
|
|
|
123
|
% |
As
illustrated, the number of shares of common stock issuable upon conversion of
our convertible debentures will increase if the market price of our stock
declines, which will cause dilution to our existing stockholders.
The continuously adjustable
conversion price feature of our convertible debentures may encourage investors to make short
sales in our common stock, which could have a depressive effect on the price of
our common stock.
So long
as the market price of our stock is below $4.00, the issuance of shares in
connection with the conversion of the $100,000 convertible debenture results in
the issuance of shares at an effective 20% discount to the trading price of the
common stock prior to the conversion. So long as the market price of our stock
is below $2.00 the issuance of shares in connection with the conversion of the
Second Debenture results in the issuance of shares at an effective 10% discount
to the trading price of the common stock prior to the conversion. The
significant downward pressure on the price of the common stock as the selling
stockholder converts and sells material amounts of common stock could encourage
short sales by investors. This could place further downward pressure on the
price of the common stock. The selling stockholder could sell common stock into
the market in anticipation of covering the short sale by converting their
securities, which could cause the further downward pressure on the stock price.
In addition, not only the sale of shares issued upon conversion or exercise of
debentures and warrants, but also the mere perception that these sales could
occur, may adversely affect the market price of the common stock.
The
issuance of shares upon conversion of the convertible debentures and exercise of
outstanding warrants may cause immediate and substantial dilution to our
existing stockholders.
The
issuance of shares upon conversion of our convertible debentures and exercise of
warrants may result in substantial dilution to the interests of other
stockholders since the selling stockholder may ultimately convert and sell the
full amount issuable on conversion. Although Golden State Investors may not
convert its convertible debentures and/or exercise their warrants if such
conversion or exercise would cause it to own more than 9.9% of our outstanding
common stock, this restriction does not prevent the selling stockholder from
converting and selling some of their holdings and then converting the rest of
their holdings. In this way, assuming the market price remains at a level
acceptable to the selling stockholder, the selling stockholder could continue on
a “conversion-sell-conversion” trend while never holding more than 9.99% of our
common stock. Further, under the convertible debentures there is theoretically
no upper limit on the number of shares that may be issued, which will have the
effect of further diluting the proportionate equity interest and voting power of
holders of our common stock.
If
we are unable to issue shares of common stock upon conversion of the convertible
debenture as a result of our inability to increase our authorized shares of
common stock or as a result of any other reason, we are required to pay
penalties to Golden State, redeem the convertible debenture at 130% and/or
compensate Golden State for any buy-in that it is required to
make.
If we are
unable to issue shares of common stock upon conversion of the convertible
debenture as a result of our inability to increase our authorized shares of
common stock or as a result of any other reason, we are required
to:
|
·
|
pay
late payments to Golden State for late issuance of common stock upon
conversion of the convertible debenture, in the amount of $100 per
business day after the delivery date for each $10,000 of convertible
debenture principal amount being converted or
redeemed;
|
|
·
|
in
the event we are prohibited from issuing common stock, or fail to timely
deliver common stock on a delivery date, or upon the occurrence of an
event of default, then at the election of Golden State, we must pay to
Golden State a sum of money determined by multiplying up to the
outstanding principal amount of the convertible debenture designated by
Golden State by 130%, together with accrued but unpaid interest thereon;
and
|
|
·
|
if
ten days after the date we are required to deliver common stock to Golden
State pursuant to a conversion, Golden State purchases (in an open market
transaction or otherwise) shares of common stock to deliver in
satisfaction of a sale by Golden State of the common stock which it
anticipated receiving upon such conversion (a "Buy-In"), then we are
required to pay in cash to Golden State the amount by which its total
purchase price (including brokerage commissions, if any) for the shares of
common stock so purchased exceeds the aggregate principal and/or interest
amount of the convertible debenture for which such conversion was not
timely honored, together with interest thereon at a rate of 15% per annum,
accruing until such amount and any accrued interest thereon is paid in
full.
|
In the
event that we are required to pay penalties to Golden State or redeem the
convertible debentures held by Golden State, we may be required to curtail or
cease our operations.
Risks
Relating to Our Common Stock
Fluctuations
in our operating results and announcements and developments concerning our
business affect our stock price.
Our
quarterly operating results, the number of stockholders desiring to sell their
shares, changes in general economic conditions and the financial markets, the
execution of new contracts and the completion of existing agreements and other
developments affecting us, could cause the market price of our common stock to
fluctuate substantially.
Our
Common Stock is Subject to the "Penny Stock" Rules of the SEC and the Trading
Market in Our Securities is Limited, Which Makes Transactions in Our Stock
Cumbersome and May Reduce the Value of an Investment in Our Stock.
Our
common stock is quoted on the OTC Bulletin Board under the symbol "TDCP".
To date there is a limited trading market in our common stock on the OTC
Bulletin Board. Failure to develop or maintain an active trading market could
negatively affect the value of our shares and make it difficult for our
shareholders to sell their shares or recover any part of their investment in us.
The market price of our common stock may be highly volatile. In addition to the
uncertainties relating to our future operating performance and the profitability
of our operations, factors such as variations in our interim financial results,
or various, as yet unpredictable factors, many of which are beyond our control,
may have a negative effect on the market price of our common stock.
The
Securities and Exchange Commission has adopted Rule 15g-9 which establishes the
definition of a "penny stock," for the purposes relevant to us, as any equity
security that has a market price of less than $5.00 per share or with an
exercise price of less than $5.00 per share, subject to certain exceptions. For
any transaction involving a penny stock, unless exempt, the rules
require:
|
·
|
that a broker or dealer approve a
person's account for transactions in penny stocks;
and
|
|
|
the broker or dealer receive from
the investor a written agreement to the transaction, setting forth the
identity and quantity of the penny stock to be
purchased.
|
In order
to approve a person's account for transactions in penny stocks, the broker or
dealer must:
|
·
|
obtain financial information and
investment experience objectives of the person;
and
|
|
·
|
make a reasonable determination
that the transactions in penny stocks are suitable for that person and the
person has sufficient knowledge and experience in financial matters to be
capable of evaluating the risks of transactions in penny
stocks.
|
The
broker or dealer must also deliver, prior to any transaction in a penny stock, a
disclosure schedule prescribed by the Commission relating to the penny stock
market, which, in highlight form:
|
·
|
sets forth the basis on which the
broker or dealer made the suitability determination;
and
|
|
·
|
that the broker or dealer
received a signed, written agreement from the investor prior to the
transaction.
|
Generally,
brokers may be less willing to execute transactions in securities subject to the
"penny stock" rules. This may make it more difficult for investors to dispose of
our common stock and cause a decline in the market value of our
stock.
Disclosure
also has to be made about the risks of investing in penny stocks in both public
offerings and in secondary trading and about the commissions payable to both the
broker-dealer and the registered representative, current quotations for the
securities and the rights and remedies available to an investor in cases of
fraud in penny stock transactions. Finally, monthly statements have to be sent
disclosing recent price information for the penny stock held in the account and
information on the limited market in penny stocks.
We and
our representatives may from time to time make written or oral statements that
are "forward-looking," including statements contained in this prospectus and
other filings with the Securities and Exchange Commission, reports to our
stockholders and news releases. All statements that express expectations,
estimates, forecasts or projections are forward-looking statements. In addition,
other written or oral statements which constitute forward-looking statements may
be made by us or on our behalf. Words such as "expects," "anticipates,"
"intends," "plans," "believes," "seeks," "estimates," "projects," "forecasts,"
"may," "should," variations of such words and similar expressions are intended
to identify forward-looking statements. These statements are not guarantees of
future performance and involve risks, uncertainties, and assumptions which are
difficult to predict. Therefore, actual outcomes and results may differ
materially from what is expressed or forecasted in or suggested by such
forward-looking statements. Among the important factors on which such statements
are based are assumptions concerning our ability to obtain additional funding,
our ability to compete against our competitors, our ability to integrate our
acquisitions and our ability to attract and retain key employees.
DETERMINATION
OF OFFERING PRICE
The
selling stockholder may sell the common shares issued to them from time-to-time
at prices and at terms then prevailing or at prices related to the then current
market price, or in negotiated transactions.
We will
not receive any proceeds from the sale of common shares by the selling
shareholders pursuant to this prospectus. The selling shareholders will receive
all proceeds from the sales of these common shares, and they will pay any and
all expenses incurred by them for brokerage, accounting or tax services (or any
other expenses incurred by them in disposing of their common
shares).
The
shares of common stock offered hereby are being registered for the account of
the selling stockholder named in this prospectus. As a result, all proceeds from
the sales of the common stock will go to the selling stockholder and we will not
receive any proceeds from the resale of the common stock by the selling
stockholder. We will incur all costs associated with this registration statement
and prospectus, which are currently estimated to be approximately
$5,000.
SELLING
STOCKHOLDERS
The
following table provides, as of February 23, 2010, information regarding the
beneficial ownership of our common shares held by each of the selling
stockholder.
Information
with respect to beneficial ownership is based upon information obtained from the
selling stockholder. Information with respect to "Number of Shares Beneficially
Owned Prior to the Offering" includes the shares issuable upon exercise of the
stock options held by the selling stockholder to the extent these options are
exercisable within 60 days of February 23, 2010. The "Number of Shares That May
be Offered Pursuant to this Prospectus" includes the common shares that may be
acquired by the selling stockholder pursuant to the exercise of stock options
granted to the selling stockholder pursuant to grants by the unanimous
written consent of our Board of Directors and the employment agreement of
certain officers. Information with respect to "Percentage of Shares Beneficially
Owned After the Offering" assumes the sale of all of the common shares offered
by this prospectus and no other purchases or sales of our common shares by the
selling stockholder. Except as described below and to our knowledge, the named
selling stockholder beneficially owns and has sole voting and investment power
over all common shares or rights to these common shares.
Because
the selling stockholder may offer all or part of the common shares currently
owned or the common shares received upon exercise of the options, which they own
pursuant to the offering contemplated by this reoffer prospectus, and because
its offering is not being underwritten on a firm commitment basis, no estimate
can be given as to the amount of options that will be held upon termination of
this offering. The common shares currently owned and the common shares received
upon exercise of the options offered by this reoffer prospectus may be offered
from time to time by the selling stockholder named below.
Name
|
|
Number of
Shares
Beneficially
Owned Prior to
the Offering(1)
|
|
Percentage
of Shares
Beneficially Owned
Prior to the
Offering(2)
|
|
Number of
Shares That
May be
Reoffered
Pursuant to this
Prospectus(3)
|
|
Percentage
of Shares
Beneficially Owned
After the
Offering(4)
|
|
James
N. Welsh (5)
|
|
|
0
|
|
|
*
|
|
10,250,895
|
|
|
*
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
* Less
than 1%
(1) Under
Rule 13d-3, a beneficial owner of a security includes any person who, directly
or indirectly, through any contract, arrangement, understanding, relationship,
or otherwise has or shares: (i) voting power, which includes the power to vote,
or to direct the voting of shares; and (ii) investment power, which includes the
power to dispose or direct the disposition of shares. Certain shares may be
deemed to be beneficially owned by more than one person (if, for example,
persons share the power to vote or the power to dispose of the shares). In
addition, shares are deemed to be beneficially owned by a person if the person
has the right to acquire the shares (for example, upon exercise of an option)
within 60 days of the date as of which the information is provided. In computing
the percentage ownership of any person, the amount of shares outstanding is
deemed to include the amount of shares beneficially owned by such person (and
only such person) by reason of these acquisition rights. As a result, the
percentage of outstanding shares of any person as shown in this table does not
necessarily reflect the person's actual ownership or voting power with respect
to the number of common shares actually outstanding on February 23,
2010.
(2)
Applicable percentage of ownership is based on 373,387,244 shares of common
stock outstanding as of February 23, 2010
(3)
Consists of shares of common stock issued under the 3DIcon Corporation 2010
Incentive Stock Plan.
(4)
Assumes the sale of all shares.
(5) Mr.
Welsh was appointed as the Company’s Interim Chief Operating Officer and Interim
Treasurer on February 9, 2009. His appointment was effective as of
March 1, 2009.
PLAN
OF DISTRIBUTION
TIMING
OF SALES
Under our
2010 Incentive Stock Plan, we have reserved for issuance an aggregate of
75,000,000 shares of our common stock.
The
selling stockholder may offer and sell the shares covered by this prospectus at
various times. The selling stockholder will act independently of our company in
making decisions with respect to the timing, manner and size of each
sale.
NO
KNOWN AGREEMENTS TO RESELL THE SHARES
To our
knowledge, no selling stockholder has any agreement or understanding, directly
or indirectly, with any person to resell the common shares covered by this
prospectus.
OFFERING
PRICE
The sales
price offered by the selling stockholder to the public may be:
1. the
market price prevailing at the time of sale;
2. a
price related to such prevailing market price; or
3. such
other price as the selling shareholders determine from time to
time.
MANNER
OF SALE
The
common shares may be sold by means of one or more of the following
methods:
1. a
block trade in which the broker-dealer so engaged will attempt to sell the
common shares as agent, but may position and resell a portion of the block as
principal to facilitate the transaction;
2.
purchases by a broker-dealer as principal and resale by that broker-dealer for
its account pursuant to this prospectus;
3.
ordinary brokerage transactions in which the broker solicits
purchasers;
4.
through options, swaps or derivatives;
5. in
transactions to cover short sales;
6.
privately negotiated transactions; or
7. in a
combination of any of the above methods.
The
selling shareholders may sell their common shares directly to purchasers or may
use brokers, dealers, underwriters or agents to sell their common shares.
Brokers or dealers engaged by the selling shareholders may arrange for other
brokers or dealers to participate. Brokers or dealers may receive commissions,
discounts or concessions from the selling shareholders, or, if any such
broker-dealer acts as agent for the purchaser of common shares, from the
purchaser in amounts to be negotiated immediately prior to the sale. The
compensation received by brokers or dealers may, but is not expected to, exceed
that which is customary for the types of transactions involved.
Broker-dealers
may agree with a selling shareholder to sell a specified number of common shares
at a stipulated price per common share, and, to the extent the broker-dealer is
unable to do so acting as agent for a selling shareholder, to purchase as
principal any unsold common shares at the price required to fulfill the
broker-dealer commitment to the selling shareholder.
Broker-dealers
who acquire common shares as principal may thereafter resell the common shares
from time to time in transactions, which may involve block transactions and
sales to and through other broker-dealers, including transactions of the nature
described above, in the over-the-counter market or otherwise at prices and on
terms then prevailing at the time of sale, at prices then related to the
then-current market price or in negotiated transactions. In connection with
resales of the common shares, broker-dealers may pay to or receive from the
purchasers of shares commissions as described above.
If our
selling shareholders enter into arrangements with brokers or dealers, as
described above, we are obligated to file a post-effective amendment to this
registration statement disclosing such arrangements, including the names of any
broker-dealers acting as underwriters.
The
selling shareholders and any broker-dealers or agents that participate with the
selling shareholders in the sale of the common shares may be deemed to be
"underwriters" within the meaning of the Securities Act. In that event, any
commissions received by broker-dealers or agents and any profit on the resale of
the common shares purchased by them may be deemed to be underwriting commissions
or discounts under the Securities Act.
SALES
PURSUANT TO RULE 144
Any
common shares covered by this prospectus which qualify for sale pursuant to Rule
144 under the Securities Act may be sold under Rule 144 rather than pursuant to
this prospectus.
REGULATION
M
The
selling shareholders must comply with the requirements of the Securities Act and
the Exchange Act in the offer and sale of the common stock. In particular we
will advise the selling shareholders that the anti-manipulation rules of
Regulation M under the Exchange Act may apply to sales of common shares in the
market and to the activities of the selling shareholders and their affiliates.
Regulation M under the Exchange Act prohibits, with certain exceptions,
participants in a distribution from bidding for, or purchasing for an account in
which the participant has a beneficial interest, any of the securities that are
the subject of the distribution.
Accordingly,
during such times as a selling shareholder may be deemed to be engaged in a
distribution of the common stock, and therefore be considered to be an
underwriter, the selling shareholder must comply with applicable law and, among
other things:
1. may
not engage in any stabilization activities in connection with our common
stock;
2. may
not cover short sales by purchasing shares while the distribution is taking
place; and
3. may
not bid for or purchase any of our securities or attempt to induce any person to
purchase any of our securities other than as permitted under the Exchange
Act.
In
addition, we will make copies of this prospectus available to the selling
shareholders for the purpose of satisfying the prospectus delivery requirements
of the Securities Act.
STATE
SECURITIES LAWS
Under the
securities laws of some states, the common shares may be sold in such states
only through registered or licensed brokers or dealers. In addition, in some
states the common shares may not be sold unless the shares have been registered
or qualified for sale in the state or an exemption from registration or
qualification is available and is complied with.
EXPENSES
OF REGISTRATION
We are
bearing all costs relating to the registration of the common stock. These
expenses are estimated to be $5,000, including, but not limited to, legal,
accounting, printing and mailing fees. The selling shareholders, however, will
pay any commissions or other fees payable to brokers or dealers in connection
with any sale of the common stock.
The
validity of the common stock has been passed upon by Sichenzia Ross Friedman
Ference LLP, New York, New York.
EXPERTS
The
consolidated financial statements of 3DIcon Corporation as of December 31, 2008
and 2007, and for each of the years in the two-year period ended December 31,
2008, have been incorporated by reference herein and in the registration
statement in reliance upon the report of HoganTaylor LLP, an independent
registered public accounting firm, upon the authority of said firm as experts in
accounting and auditing.
INTERESTS
OF NAMED EXPERTS AND COUNSEL
No expert
or counsel named in this prospectus as having prepared or certified any part of
this prospectus or having given an opinion upon the validity of the securities
being registered or upon other legal matters in connection with the registration
or offering of the common stock was employed on a contingency basis or had, or
is to receive, in connection with the offering, a substantial interest, directly
or indirectly, in the registrant or any of its parents or
subsidiaries.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The
Securities and Exchange Commission allows us to incorporate by reference certain
of our publicly-filed documents into this prospectus, which means that such
information is considered part of this prospectus. Information that we file with
the SEC subsequent to the date of this prospectus will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under all documents subsequently
filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until the selling stockholders have sold all of the shares
offered hereby or such shares have been deregistered.
The
following documents filed with the SEC are incorporated herein by
reference:
·
|
Reference is made to our annual
report on Form 10-K for the year ended December 31, 2008, as filed with
the SEC on April 15, 2009
|
·
|
Reference
is made to our current report on Form 8-K, as filed with the SEC on May
18, 2009
|
·
|
Reference
is made to our quarterly report on Form 10-Q for the period ended March
31, 2009, as filed with the SEC on May 20,
2009
|
·
|
Reference
is made to our quarterly report on Form 10-Q for the period ended June 30,
2009, as filed with the SEC on August 14,
2009
|
·
|
Reference
is made to our current report on Form 8-K, as filed with the SEC on August
28, 2009
|
·
|
Reference
is made to our quarterly report on Form 10-Q for the period ended
September 30, 2009, as filed with the SEC on November 16,
2009
|
·
|
The
description of our common stock is incorporated by reference to our
prospectus filed pursuant to Rule 424(b)(3) with the SEC on July 10,
2007
|
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
Our
bylaws provide that 3DIcon 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.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 (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 us of
expenses incurred or paid by our directors, officers or controlling persons in
the successful defense of any action, suit or proceedings, is asserted by such
director, officer, or controlling person in connection with any securities being
registered, we will, unless in the opinion of our counsel the matter has been
settled by controlling precedent, submit to court of appropriate jurisdiction
the question whether such indemnification by us is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issues.
ADDITIONAL
INFORMATION AVAILABLE TO YOU
This
prospectus is part of a Registration Statement on Form S-8 that we filed with
the SEC. Certain information in the Registration Statement has been omitted from
this prospectus in accordance with the rules of the SEC. We file annual,
quarterly and special reports, proxy statements and other information with the
SEC. You can inspect and copy the Registration Statement as well as reports,
proxy statements and other information we have filed with the SEC at the public
reference room maintained by the SEC at 100 F Street N.E. Washington, D.C.
20549, You can obtain copies from the public reference room of the SEC at 100 F
Street N.E. Washington, D.C. 20549, upon payment of certain fees. You can call
the SEC at 1-800-732-0330 for further information about the public reference
room. We are also required to file electronic versions of these documents with
the SEC, which may be accessed through the SEC's World Wide Web site at
http://www.sec.gov. No dealer, salesperson or other person is authorized to give
any information or to make any representations other than those contained in
this prospectus, and, if given or made, such information or representations must
not be relied upon as having been authorized by us. This prospectus does not
constitute an offer to buy any security other than the securities offered by
this prospectus, or an offer to sell or a solicitation of an offer to buy any
securities by any person in any jurisdiction where such offer or solicitation is
not authorized or is unlawful. Neither delivery of this prospectus nor any sale
hereunder shall, under any circumstances, create any implication that there has
been no change in the affairs of our company since the date hereof.
ITEM
3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The
Registrant hereby incorporates by reference into this Registration Statement the
documents listed below. In addition, all documents subsequently filed pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such documents:
The
following documents filed with the SEC are incorporated herein by
reference:
·
|
Reference is made to our annual
report on Form 10-K for the year ended December 31, 2008, as filed with
the SEC on April 15, 2009
|
·
|
Reference
is made to our current report on Form 8-K, as filed with the SEC on May
18, 2009
|
·
|
Reference
is made to our quarterly report on Form 10-Q for the period ended March
31, 2009, as filed with the SEC on May 20,
2009
|
·
|
Reference
is made to our quarterly report on Form 10-Q for the period ended June 30,
2009, as filed with the SEC on August 14,
2009
|
·
|
Reference
is made to our current report on Form 8-K, as filed with the SEC on August
28, 2009
|
·
|
Reference
is made to our quarterly report on Form 10-Q for the period ended
September 30, 2009, as filed with the SEC on November 16,
2009
|
·
|
The
description of our common stock is incorporated by reference to our
prospectus filed pursuant to Rule 424(b)(3) with the SEC on July 10,
2007
|
Not
applicable.
ITEM
5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
No expert
or counsel named in this prospectus as having prepared or certified any part of
this prospectus or having given an opinion upon the validity of the securities
being registered or upon other legal matters in connection with the registration
or offering of the common stock was employed on a contingency basis or had, or
is to receive, in connection with the offering, a substantial interest, directly
or indirectly, in the registrant or any of its parents or
subsidiaries.
ITEM
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our
bylaws provide that 3DIcon 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.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 (the
"Act") may be permitted to directors, officers and controlling persons of the
Registrant 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 us of
expenses incurred or paid by our directors, officers or controlling persons in
the successful defense of any action, suit or proceedings, is asserted by such
director, officer, or controlling person in connection with any securities being
registered, we will, unless in the opinion of our counsel the matter has been
settled by controlling precedent, submit to court of appropriate jurisdiction
the question whether such indemnification by us is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issues.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
EXHIBIT
|
|
|
NUMBER
|
|
EXHIBIT
|
|
|
|
4.7
|
|
2010
3DIcon Corporation Incentive Stock Plan
|
|
|
|
5.1
|
|
Opinion
of Sichenzia Ross Friedman Ference LLP
|
|
|
|
23.1
|
|
Consent
of HoganTaylor LLP
|
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:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) 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;
PROVIDED,
HOWEVER, that paragraphs (1)(i), and (1)(ii) do not apply if the Registration
Statement is on Form S-8 and if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the Registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered 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.
(4) That,
for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering
thereof.
(5) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(A) Each
prospectus filed by a Registrant pursuant to Rule 424(b)(3)shall be deemed to be
part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which the prospectus
relates, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof. PROVIDED, HOWEVER, that no statement
made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective
date.
(6) That,
for the purpose of determining liability of a Registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, each
undersigned Registrant undertakes that in a primary offering of securities of an
undersigned Registrant pursuant to this registration statement, regardless of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of an undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of an
undersigned Registrant or used or referred to by an undersigned
Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about an undersigned Registrant or its securities provided
by or on behalf of an undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by an undersigned
Registrant to the purchaser.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
SIGNATURES
In
accordance with 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 Form S-8 to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Tulsa, State of Oklahoma, on February 26, 2010.
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3DIcon
Corporation |
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By:
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/s/
Martin Keating
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Martin
Keating
CHIEF
EXECUTIVE OFFICER
(PRINCIPAL
EXECUTIVE AND FINANCIAL
OFFICER)
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POWER OF
ATTORNEY
Each
person whose signature appears below hereby constitutes and appoints Martin
Keating, his or her 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) and additions 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, and hereby grants to
such attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or his substitute or
substitutes 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 below by the following persons in the capacities and
on the dates indicated.
Date:
February 26, 2010
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/s/
Martin Keating
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Martin
Keating
Chairman,
Chief Executive Officer
and
Director
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Date:
February 26, 2010
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/s/
John O’Connor
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John
O’Connor
Director
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Date:
February 26, 2010
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/s/
Victor F. Keen
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Victor
F. Keen
Director
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Date:
February 26, 2010
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/s/
Lawrence Field
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Lawrence
Field
Director
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