As filed with the Securities and Exchange Commission on March 3, 2003
Reg. No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EMagin Corporation
(Exact name of registrant as specified in its charter)
Delaware 56-1764501
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
2070 Route 52, Hopewell Junction, New York 12533
(Address of principal executive offices) (Zip Code)
COMPENSATION AGREEMENTS AND 2000 STOCK OPTION PLAN
(full time of plan)
Gary Jones, President
2070 Route 52
Hopewell Junction, New York 12533
(Name and address of agent for service)
(845) 892-1900
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Amount to be offering price Aggregate offering Amount of
Title of securities Registered per share* Price Registration fee
to be registered
----------------------- --------------------- -------------------- --------------------- --------------------
Common Stock 2,665,000 $0.75 $1,998,750 $183.89
($.001 par value)
----------------------- --------------------- -------------------- --------------------- --------------------
* Computed pursuant to Rule 457(c) of the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee and not as a
representation as to any actual proposed price. The offering price per share,
maximum aggregate offering price and registration fee is based upon the average
of the high and the low price on the American Stock Exchange on February 26,
2003.
EXPLANATORY NOTE
Pursuant to General Instruction E of Form S-8, this Registration Statement
is being filed in order to register 2,000,000 additional shares of common stock,
$0.001 par value per share, of eMagin Corporation, with respect to a currently
effective Registration Statement on Form S-8 relating to its 2000 Stock Option
Plan. The contents of the Registration Statement on Form S-8 as filed on March
14, 2000, Registration No. 333-32474 are incorporated by reference into this
Registration Statement.
In addition, this Registration Statement on Form S-8 relates to the
issuance of up to 6650,000 shares of common stock to various consultants.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I of Form S-8 to be contained in a prospectus
meeting the requirements of Section 10(a) of the Securities Act of 1933, as
amended (the "Securities Act"), is not required to be filed with the Securities
and Exchange Commission and is omitted from this registration statement in
accordance with the explanatory note to Part I of Form S-8 and Rule 428 of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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:
o Reference is made to the Registrant's annual report on Form 10-KSB/A,
as amended, for the year ended December 31, 2001, as filed with the
Commission on April 30, 2002, which is hereby incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form
10-QSB/A, as amended, for the period ended March 31, 2002, as filed with
the Commission on June 18, 2002, which is hereby incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form
10-QSB/A, as amended, for the period ended June 30, 2003, as filed with the
Commission on November 21, 2002, which is hereby incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form
10-QSB/A, as amended, for the period ended September 30, 2002, as filed
with the Commission on February 7, 2002, which is hereby incorporated by
reference.
o Reference is made to the Registrant's current reports on Form 8-K
filed with the Commission under file number 001-15751 for the fiscal year
2002 to date.
o The description of the Registrant's common stock is incorporated by
reference to the Registrant's Registration Statement on Form 10-SB, as
filed with the Commission under file number 000-24757 on January 23, 1996.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of common stock offered hereby will be passed
upon for the Registrant by Sichenzia Ross Friedman Ference LLP, 1065 Avenue of
Americas, 21st flr., New York, NY 10018. A member of Sichenzia Ross Friedman
Ference LLP will receive up to 100,000 shares of common stock in connection with
legal services. Such shares are being registered in this Registration Statement.
Item 6. Indemnification of Directors and Officers.
The Registrant's Certificate of Incorporation limits, to the maximum extent
permitted by Delaware law, the personal liability of directors for monetary
damages for breach of their fiduciary duties as a director. The Registrant's
Bylaws provided that the Registrant shall indemnify its officers and directors
and may indemnify its employees and other agents to the fullest extent permitted
by Delaware law.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify a director, officer, employee or agent made a party to
an action by reason of that fact that he or she was a director, officer employee
or agent of the corporation or was serving at the request of the corporation
against expenses actually and reasonably incurred by him or her in connection
with such action if he or she acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
corporation and with respect to any criminal action, had no reasonable cause to
believe his or her conduct was unlawful.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Registrant
pursuant to the foregoing provisions, 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.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
NOTICE REGARDING ARTHUR ANDERSEN LLP
In September 2002, the Registrant announced that it had appointed Grant
Thornton as its independent auditor for fiscal year 2002, replacing Arthur
Andersen LLP ("Andersen").
Section 11(a) of the Securities Act of 1933, as amended (the "Securities
Act"), provides that if any part of a registration statement at the time it
becomes effective contains an untrue statement of a material fact or an omission
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, any person acquiring a security pursuant to
the registration statement (unless it is proved that at the time of the
acquisition the person knew of the untruth or omission) may sue, among others,
every accountant who has consented to be named as having prepared or certified
any part of the registration statement or as having prepared or certified any
report or valuation which is used in connection with the registration statement
with respect to the statement in the registration statement, report or valuation
which purports to have been prepared or certified by the accountant.
Prior to the date of this registration statement, the Arthur Andersen
partners who reviewed Registrant's most recent audited financial statements, as
of December 31, 2001 and 2000 resigned from Andersen. As a result, after
reasonable efforts, we have been unable to obtain Andersen's written consent to
the incorporation by reference into this registration statement of its audit
reports with respect to Registrant's financial statements.
Under these circumstances, Rule 437(a) under the Securities Act permits the
filing of this registration statement without including herein a written consent
from Andersen. Accordingly, Andersen will not be liable under Section 11(a) of
the Securities Act because it has not consented to being named as an expert in
the registration statement.
EXHIBIT
NUMBER EXHIBIT
4.1 2000 Stock Option Plan (Incorporated by Reference to the Registrant's Form S-8 filed with the
SEC on March 14, 2000)
4.2 Compensation Agreement with Yasunori Nakazaki dated February 20, 2003
4.3 Compensation Agreement with Noelle Tutunjian dated February 20, 2003
4.4 Compensation Agreement with Sichenzia Ross Friedman Ference LLP dated February 20, 2003
4.5 Compensation Agreement with Redson Building Partnership dated February 24, 2003
4.6 Compensation Agreement with Bazerman & Drangel P.C. dated February 26, 2003
4.7 Compensation Agreement with Patricia Lynn dated February 26, 2003
4.8 Compensation Agreement with Wayde Waters dated February 26, 2003
4.9 Compensation Agreement with Madeline Bryant dated February 26, 2003
4.10 Consulting Agreement with Mark Benedict
5.1 Opinion of Sichenzia Ross Friedman Ference LLP
23.1 Consent of Sichenzia Ross Friedman Ference LLP is contained in Exhibit 5.1
24.1 Power of Attorney (included in the Signature Page)
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 change to such information 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.
(b) The undersigned registrant hereby undertakes 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 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 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 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Hopewell Junction, State of New York on March 3, 2003.
EMAGIN CORPORATION
By: /s/ Gary Jones
Gary Jones, President,
Chief Executive Officer
and Director
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ Edward V. Flynn Chief Financial Officer, Treasurer March 3, 2003
Edward Flynn (Principal Financial Accounting Officer)
/s/ Claude Charles Director March 3, 2003
Claude Charles
/s/ Ajmal Khan Director March 3, 2003
Ajmal Khan
/s/ Jack Rivkin Director March 3, 2003
Jack Rivkin
/s/ Jack Goldman Director March 3, 2003
Jack Goldman
EXHIBIT
NUMBER EXHIBIT
4.1 2000 Stock Option Plan (Incorporated by Reference to the Registrant's Form S-8 filed with the
SEC on March 14, 2000)
4.2 Compensation Agreement with Yasunori Nakazaki dated February 20, 2003
4.3 Compensation Agreement with Noelle Tutunjian dated February 20, 2003
4.4 Compensation Agreement with Sichenzia Ross Friedman Ference LLP dated February 20, 2003
4.5 Compensation Agreement with Redson Building Partnership dated February 24, 2003
4.6 Compensation Agreement with Bazerman & Drangel P.C. dated February 26, 2003
4.7 Compensation Agreement with Patricia Lynn dated February 26, 2003
4.8 Compensation Agreement with Wayde Waters dated February 26, 2003
4.9 Compensation Agreement with Madeline Bryant dated February 26, 2003
4.10 Compensation Agreement with Mark Benedict
5.1 Opinion of Sichenzia Ross Friedman Ference LLP
23.1 Consent of Sichenzia Ross Friedman Ference LLP is contained in Exhibit 5.1
24.1 Power of Attorney (included in the Signature Page)