-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RuAizYqUYhk8XWG8XMzh8eiw2oJTpUbfaNw8ac6OGD3OyuYpyDW2lWtSsqKe2Zho z4y4kpfSZSRCa/49SFO2uw== 0000891554-98-000193.txt : 19980225 0000891554-98-000193.hdr.sgml : 19980225 ACCESSION NUMBER: 0000891554-98-000193 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980224 EFFECTIVENESS DATE: 19980224 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: IMSCO INC /MA/ CENTRAL INDEX KEY: 0000924396 STANDARD INDUSTRIAL CLASSIFICATION: MEDICINAL CHEMICALS & BOTANICAL PRODUCTS [2833] IRS NUMBER: 043021770 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-46823 FILM NUMBER: 98548400 BUSINESS ADDRESS: STREET 1: 40 BAYFIELD DR CITY: NORTH ANDOVER STATE: MA ZIP: 01845 BUSINESS PHONE: 5086892080 MAIL ADDRESS: STREET 1: 40 BAYFIELD DR CITY: NORTH ANDOVER STATE: MA ZIP: 01845 S-8 1 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on February 24, 1998 Registration No. 333-_____ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------- IMSCO TECHNOLOGIES, INC. (Exact name of registrant as specified in its charter) Delaware 04-3021770 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 40 Bayfield Drive North Andover, MA 01845 (978) 689-2080 (Address of Principal Executive Offices) 1996 Employee Incentive Stock Option Program of IMSCO Technologies, Inc. (Full title of the plans) ALEXANDER T. HOFFMANN Chief Executive Officer IMSCO TECHNOLOGIES, INC. 40 Bayfield Drive North Andover, MA 01845 (Name and address of agent for service) (978) 689-2080 (Telephone number, including area code, of agent for service) ---------------- Copies to: David E. Fleming, Esq. Epstein Becker & Green, P.C. 250 Park Avenue New York, New York 10177 (212) 351-4500 CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------- Title of Each Class of Amount to be Proposed Maximum Offering Proposed Maximum Amount of Securities to be Registered (2) Price Per Share (2) Aggregate Offering Price Registration Fee Registered ---------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share 1,500,000 shares (1) $1.625 $2,437,500 $719.06 - ----------------------------------------------------------------------------------------------------------------------- Total 1,500,000 shares $1.625 $2,437,500 $719.06 -----------------------------------------------------------------------------------------------------------------------
(1) Consists of 1,500,000 shares of Common Stock of the Registrant which are issuable upon exercise of options or grant of shares which will be granted under the 1996 Employee Incentive Stock Option Program of IMSCO Technologies, Inc. (The "Plan"). No shares or options have granted under the Plan as of the date hereof. This Registration Statement also covers an indeterminate number of shares of Common Stock which may be issuable by reason of stock splits, stock dividends or similar transactions. (2) Calculated pursuant to Rule 457(h)(1) under the Securities Act and based upon the current market price for shares of Common Stock and original option exercise prices for shares of Common Stock. PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS Note: The documents containing the information specified in Part I of Form S-8 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act"). The Company will maintain a file of such documents in accordance with the provisions of Rule 428. Such documents need not be filed with the Securities and Exchange Commission (the "Commission") either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in the Registration Statement pursuant to Item 3 of Part II of this Form S-8,taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. See Rule 428(a)(1) under the Securities Act. This Registration Statement on Form S-8 of IMSCO Technologies, Inc., a Delaware corporation (the "Registrant"), covers 1,500,000 shares of the Registrant's Common Stock, par value $.01 per share ("Common Stock"), reserved for issuance under the following employee benefit plan of the Registrant: 1996 Employee Incentive Stock Option Program of IMSCO Technologies, Inc. (the "Plan"). No shares of Common Stock or options exercisable into shares of Common Stock have been issued under the Plan. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by the Registrant with the Commission are incorporated herein by reference: (a) The Registrant's Annual Report on Form 10-KSB for the year ended December 31, 1996, as amended. (b) All other reports and forms filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities and Exchange Act of 1934, as amended (the"Exchange Act"), prior to the date hereof; and (c) The description of the Registrant's Common Stock contained in the Registrant's Proxy Statement on Form 14 , dated July 9, 1996, including any amendments thereto or reports filed for the purpose of updating such description. In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities registered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. A member of special counsel to the Registrant, Epstein Becker & Green, P.C., David E. Fleming, Esq., owns 65,000 shares of Common Stock of the Registrant. Item 6. Indemnification of Directors and Officers. The Registrant's Certificate of Incorporation eliminates, to the fullest extent permitted by the Law of the State of Delaware, personal liability of directors to the Registrant and its stockholders for monetary damages for breach of fiduciary duty as directors. Section 145(a) of the Delaware General Corporation Law ("DGCL") provides in relevant part that "a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful." With respect to derivative actions, Section 145(b) of the DGCL provides in relevant part that "[a] corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor... [by reason of his service in one of the capacities specified in the preceding sentence] against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement or such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper". Article NINTH of the Company's Certificate of Incorporation, provides: "To the full extent permitted by the Delaware General Corporation Law or any other applicable law currently or hereafter in effect, no Director of the Company will be personally liable to the Company or its stockholders for or with respect to any acts or omissions in the performance of his or her duties as a Director of the Company. Any repeal or modification of this Article Ninth will not adversely affect any right or protection of a Director of the Company existing prior to such repeal or modification." Item 7. Exemption from Registration Claimed. Not Applicable. Item 8. Exhibits. 3.1 Certificate of Incorporation of IMSCO Technologies, Inc. (previously filed on July 17, 1996 as Exhibit 3.1 in the Company's Report on Form 8-K, File No. 000-24520). 3.2 By-Laws of IMSCO Technologies, Inc. (previously filed on July 17, 1996 as Exhibit 3.2 to the Company's Report on Form 8-K, File No. 000-24520). 4.1 1996 Employee Incentive Stock Option Program of IMSCO Technologies, Inc. (previously filed on May 26, 1996 as Exhibit 4.1 to the Company's Proxy Statement on Form 14A, File No. 000-24520). 5.1 * Opinion of Epstein Becker & Green, P.C. as to the legality of the securities being offered. 23.1 *Consent of Gordon Harrington & Osborne, P.C., with respect to financial statements of the Registrant. 23.2 *Consent of Epstein Becker & Green, P.C. (included in Exhibit 5.1). 24 *Powers of Attorney (included on p. II-4 of this Registration Statement). - ---------- * Filed herewith. Item 9. Undertakings. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material changes to such information in the Registration Statement; (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions of Item 6 of this Registration Statement, or otherwise, the Registrant has been advised that, in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in New York, New York. on the 24th day of February, 1998. IMSCO TECHNOLOGIES, INC. By: /s/ Alexander T. Hoffmann -------------------------------------- Alexander T. Hoffmann Chairman and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitute and appoints Alexander T. Hoffmann, his true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) of and supplements to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, to all intents and purposes and as fully as they might or could do in person, hereby ratifying and confirming all that such attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated on the 24th day of February, 1998. Signature Capacity --------- -------- /s/ Alexander T. Hoffmann Chairman of the Board, Director - ------------------------------- and Chief Executive Officer Alexander T. Hoffmann (Principal and Executive Officer) /s/ Scott Singer Assistant Secretary and Principal - ------------------------------- Financial and Accounting Officer Scott Singer, CPA /s/ Gary Graham Director - ------------------------------- Gary Graham /s/ Frank Lubrano Director - ------------------------------- Frank Lubrano II-4 EXHIBIT INDEX Exhibit No. Description Page - ------- ----------- ---- 3.1 Certificate of Incorporation of IMSCO Technologies, Inc. (previously filed on July 17, 1996 as Exhibit 3.1 in the Company's Report on Form 8-K, File No. 000-24520). 3.2 By-Laws of IMSCO Technologies, Inc. (previously filed on July 17, 1996 as Exhibit 3.2 to the Company's Report on Form 8-K, File No. 000-24520). 4.1 1996 Employee Incentive Stock Option Program of IMSCO Technologies, Inc. (previously filed on May 26, 1996 as Exhibit 4.1 to the Company's Preliminary Proxy Statement on Form 14A, File No. 000-24520). 5.1 * Opinion of Epstein Becker & Green, P.C. as to the legality of the securities being offered. 23.1 * Consent of Gordon Harrington & Osborne, P.C., with respect to financial statements of the Registrant. 23.2 * Consent of Epstein Becker & Green, P.C. (included in Exhibit 5.1). 24 * Powers of Attorney (included on p. II-4 of this Registration Statement). - ---------- * Filed herewith. EX-5.1 2 OPINION OF EPSTEIN BECKER & GREEN, P.C. February 24, 1998 IMSCO Technologies, Inc. 40 Bayfield Drive North Andover, MA 01845 Re: IMSCO Technologies, Inc. Registration Statement on Form S-8 Gentlemen: We have acted as counsel to you (the "Corporation") in connection with the preparation and filing of the above-captioned Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, relating to the proposed issuance of up to 1,500,000 shares (the "Original Shares") of the Corporation's Common Stock, par value $.001 per share (the "Common Stock"), which may be issued pursuant to the 1996 Employee Incentive Stock Option Plan of the Corporation (the "Plan") and such additional shares (the "Additional Shares") as may be issued pursuant to the antidilution provisions of the Plan. You have represented, and we have expressly relied thereon, that no Common Stock or options to purchase Common Stock have been issued under the Plan. The Original Shares and the Additional Shares are hereinafter referred to together as the "Shares". This opinion letter is Exhibit 5.1 to the Registration Statement. We have examined copies of the Certificate of Incorporation and the Bylaws of the Corporation, as amended to date, the Registration Statement (including the exhibits thereto), the Plan, the minutes of various meetings of the Board of Directors of the Corporation, and the originals, copies or certified copies of all such records of the Corporation, and all such agreements, certificates of public officials, certificates of officers and representatives of the Corporation, or others, and such other documents, papers, statutes and authorities as we have deemed necessary to form the basis of the opinion hereinafter expressed. In such examination, we have assumed the genuineness of signatures and the conformity to original documents of the documents supplied to us as copies. As to various questions of fact material to such opinion, we have relied upon statements and certificates of officers of the Corporation and others. Attorneys involved in the preparation of this opinion are admitted to practice law in the State of New York and we do not purport to be experts on, or express any opinion herein concerning, any law other than the laws of the State of New York, the federal laws of the United States of America and the General Corporation Law of the State of Delaware. Based upon and subject to the foregoing, we are of the opinion that all of the Shares have been duly authorized and, when issued under the circumstances contemplated in the Registration Statement and the Plan, will be validly issued, fully paid and nonassessable. We hereby consent to your filing a copy of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not admit hereby that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, EPSTEIN BECKER & GREEN, P.C. EX-23.1 3 CONSENT OF GORDON HARRINGTON & OSBORNE, P.C. The Stockholders IMSCO Technologies, Inc.: We consent to the use of our report incorporated herein by reference in the registration statement. GORDON HARRINGTON & OSBORNE, P.C. North Andover, Massachusetts February 24, 1998 -----END PRIVACY-ENHANCED MESSAGE-----