As filed with the Securities and Exchange Commission
on September 19, 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
(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 174,333 $1.50 $261,499.50 $21.16
($.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 September 18,
2003.
EXPLANATORY NOTE
This Registration Statement on Form S-8 relates to the issuance of up
to 174,333 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-K/A for the year ended December 31, 2002, as filed with the
SEC on May 6, 2003, which is hereby incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form
10-QSB for the period ended March 31, 2003, as filed with the
Commission on May 20, 2003, which is hereby incorporated by
reference.
o Reference is made to the Registrant's quarterly report on Form
10-QSB for the period ended June 30, 2003, as filed with the
Commission on August 19, 2003, which is hereby incorporated by
reference.
o Reference is made to the Registrant's registration statement on
Form SB-2, as filed with the Commission on July 25, 2003, 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.
EXHIBIT
NUMBER EXHIBIT
4.1 Compensation Agreement with Yasunori Nakazaki dated September 9, 2003
4.2 Compensation Agreement with Richard Hausig dated August 26, 2003
4.3 Compensation Agreement with Sichenzia Ross Friedman Ference LLP dated
September 15, 2003
4.4 Compensation Agreement with Olivier Prache dated August 29, 2003
5.1 Opinion of Sichenzia Ross Friedman Ference LLP
23.1 Consent of Sichenzia Ross Friedman Ference LLP is contained in
Exhibit 5.1
23.2 Consent of Grant Thornton
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 September 19, 2003.
EMAGIN CORPORATION
By: /s/ Gary Jones
---------------
Gary Jones, President, Chief Executive Officer and Director
(Principal Executive Officer and Acting Principal
Accounting 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/Claude Charles Director September 19, 2003
--------------------------------------------
Claude Charles
/s/Jacob Goldman Director September 19, 2003
-----------------------------------------
Jacob Goldman
/s/Jack Rivkin Director September 19, 2003
-------------------------------------------
Jack Rivkin
/s/Paul Cronson Director September 19, 2003
------------------------------------------
Paul Cronson
/s/Dr. Jill Wittels Director September 19, 2003
------------------------------------------
Dr. Jill Wittels
/s/ Rear Admiral Thomas Paulsen, USN Director September 19, 2003
--------------------------------------
Rear Admiral Thomas Paulsen, USN (RET)
EXHIBIT
NUMBER EXHIBIT
4.1 Compensation Agreement with Yasunori Nakazaki dated September 9, 2003
4.2 Compensation Agreement with Richard Hausig dated August 26, 2003
4.3 Compensation Agreement with Sichenzia Ross Friedman Ference LLP dated
September 15, 2003
4.4 Compensation Agreement with Olivier Prache dated August 29, 2003
5.1 Opinion of Sichenzia Ross Friedman Ference LLP
23.1 Consent of Sichenzia Ross Friedman Ference LLP is contained in Exhibit
5.1.
23.2 Consent of Grant Thornton
24.1 Power of Attorney (included in the Signature Page).
Exhibit 4.1
COMPENSATION AGREEMENT
This Compensation Agreement is dated as of September 9, 2003 among eMagin
Corporation, a Delaware corporation (the "Company") and Yasunori Nakazaki
("Consultant").
WHEREAS, the Company has requested the consultant to provide the Company
with marketing support services in connection with their business, and the
Consultant has agreed to provide the Company with such services for a period
through December 31, 2003 and include all prior billed, but unpaid services; and
WHEREAS, the Company wishes to compensate the Consultants with shares of
its common stock for such services rendered;
NOW THEREFORE, in consideration of the mutual covenants hereinafter stated,
it is agreed as follows:
1. The Company will issue up to 30,000 shares of the Company's common
stock, $.001 par value per share, to such members or employees of the Consultant
as the Consultant shall designate.
The total number of shares to be issued will be $15,000 divided by the
closing price of the Company's stock on the day that this agreement is signed
(the "Effective Date"). In the event that the number of shares to be issued is a
fractional amount, the number of shares issued will be round up to the nearest
whole share. The shares shall be issued to the Consultant one (1) day after the
Effective Date. These shares shall represent payment for services provided by
the Consultant to the Company from October 1, 2003 through December 31, 2003.
2. The above compensation shall be registered using a Form S-8. The Company
shall file such Form S-8 with the Securities and Exchange Commission within 30
days of the execution of this agreement.
IN WITNESS WHEREOF, this Compensation Agreement has been executed by the
Parties as of the date first written above.
EMAGIN CORPORATION
/s/Gary Jones
-------------
Chairman
CONSULTANT
/s/Yasunori Nakazaki
--------------------
Exhibit 4.2
COMPENSATION AGREEMENT
This Compensation Agreement is dated as of August 26, 2003 among eMagin
Corporation, a Delaware corporation (the "Company") and Richard Hausig
("Consultant").
WHEREAS, the Consultant has provided and will provide EDGAR services
for the Company; and
WHEREAS, the Company wishes to compensate the Consultant with shares of
its common stock for such services to be rendered;
NOW THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. The Company will issue up to 13,333 shares of its common stock to cover up to
$10,000 worth of services, to such members or employees of the Consultant as the
Consultant shall designate.
2. The above compensation shall be registered using a Form S-8. The Company
shall file such Form S-8 with the Securities and Exchange Commission within 30
days of the execution of this agreement.
IN WITNESS WHEREOF, this Compensation Agreement has been executed by
the Parties as of the date first above written.
EMAGIN CORPORATION
/s/Gary Jones
-------------
Chairman
/s/Richard Hausig
Exhibit 4.3
COMPENSATION AGREEMENT
This Compensation Agreement is dated as of September 15, 2003 among
eMagin Corporation, a Delaware corporation (the "Company") and Sichenzia Ross
Friedman Ference LLP ("Consultants").
WHEREAS, the Company has requested the Consultants to provide the
Company with legal services in connection with their business, and the
Consultants have agreed to provide the Company with such legal services; and
WHEREAS, the Company wishes to compensate the Consultants with shares
of its common stock for such services rendered;
NOW THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. The Company will issue up to 200,000 shares of the
Company's common stock, $.001 par value per share, to such members or employees
of the Consultants as the Consultants shall designate. The shares to be issued
shall represent services provided by the Consultant in respect of the Company's
continuing reporting requirements, as well as for certain general corporate
matters for a period of twelve (12) months from the date of this agreement. The
shares shall be distributed on a monthly basis, based upon a monthly fee of
$8,400, with the exact number of shares per month being determined based upon
the prevailing bid on the last day of the immediately preceding month.
Additional shares may be issued on a monthly basis, based upon hourly fees, for
general corporate and litigation matters not covered by the monthly fee as well
as for new matters, with the exact number of such additional shares also being
determined based upon the prevailing bid on the last day of the immediately
preceding month
2. The above compensation shall be registered using a Form
S-8. The Company shall file such Form S-8 with the Securities and Exchange
Commission within 60 days of the execution of this agreement.
IN WITNESS WHEREOF, this Compensation Agreement has been executed by
the Parties as of the date first above written.
EMAGIN CORPORATION
/s/Gary Jones
-------------
Chairman
SICHENZIA ROSS FRIEDMAN FERENCE LLP
/s/Richard A. Friedman
Exhibit 4.4
SETTLEMENT/ RELEASE/CONSULTANT AGREEMENT
This Agreement (the "Agreement") is entered into this 29th day of August 2003,
by and between Olivier Prache and eMagin Corporation ("eMagin").
W I T N E S S T H:
WHEREAS, Olivier Prache is owed salary from eMagin for past employment;
WHEREAS, Olivier Prache wishes to settle and forgive the past salary owed and be
retained as a consultant for eMagin;
WHEREAS, the parties have concluded that it is in their mutual best interests to
settle this matter upon the terms and conditions set forth below; and
NOW, THEREFORE, in consideration of the covenants, payments, and agreements set
forth in the Agreement, Olivier Prache and eMagin intending to be legally bound
thereby, and hereby warranting that they each have the capacity and authority to
execute the Agreement, it is agreed by and among the undersigned parties, that
all obligations by eMagin against Olivier Prache arising from services rendered
are hereby settled and compromised on the following terms and conditions, to
wit:
1. Compromise. Upon Execution of this Agreement, Olivier
Prache agrees to waive all past and accrued salary owed by eMagin. Furthermore,
Olivier Prache agrees to be retained as a consultant on an independent
contractor basis for the term and compensation described in Section 2 below.
2. Consultant Services. Upon execution of this Agreement,
Olivier Prache agrees to act as a consultant, on an independent contractor
basis, to eMagin and provide consulting services regarding technology and
intellectual property issues at eMagin. The term of the consulting services and
compensation commences upon execution of this Agreement and terminates on
December 31, 2003. As compensation for consulting services, Olivier Prache will
receive $22,800 payable in shares of eMagin's common stock. The total number of
shares to be issued will be $22,800 divided by the average of the five (5) prior
days closing price of the Company's common stock on the day that the Form S-8,
under which these shares are being registered, goes effective with the
Securities and Exchange Commission (the "Effective Date"). In the event that the
number of shares to be issued is a fractional amount, the number of shares
issued will be rounded up to the nearest whole share. The shares shall be issued
to the Consultant three (3) days after the Effective Date.
3. Registration of Shares. The above compensation shall be
registered using a form S-8. The Company shall file such Form S-8 with the
Securities and Exchange Commission within 30 days of the execution of this
agreement.
4. General Release. Upon full compliance with the terms of
this Agreement, Olivier Prache hereby releases, acquits and forever discharges
eMagin, its present and former officers and directors, employees, affiliates,
representatives, agents, predecessors, successors, and assigns from all actions,
cause of action, suits, debts, dues, sums of money, accounts, reckonings, bonds,
bills, specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, and
demands whatsoever, in law, admiralty or equity, which Olivier Prache, or his,
representatives, agents, predecessors, successors, and assigns ever had, now
have or hereafter can, shall or may, have for, upon, or by reason of any matter,
cause or thing whatsoever from the beginning of the world to the day of the date
of this Agreement relating to past and accrued salary.
5. Independent Contractor. Olivier Prache shall perform
services hereunder as an independent contractor and not as an employee of the
Company or an affiliate thereof. The parties hereto expressly understand and
agree that Olivier Prache shall have no authority to act for, represent or bind
the Company or any affiliate thereof in any manner, except as may be agreed to
expressly by the Company in writing from time to time.
6. Binding Agreement. The terms of the Agreement are
binding upon and inure to the benefit of each of the parties hereto, their
respective successors, assigns, dependents, and all other related persons,
affiliates or associates. 7. Headings. The captions of the paragraphs and
sections of the Agreement are provided solely for convenience, and are not
intended to, and in fact, shall not affect the substance or meaning of the
Agreement. 8. Representation. Each of the parties hereto represents that each
has read and fully understands each of the provisions contained herein, that
each reviewed same with his attorney of choice, and that each represents and
acknowledges that each and every one of the provisions contained in the
Agreement is fair and not unconscionable to either party.
9. Severability. Should any provision of the Agreement be
declared or be determined by any court or tribunal to be illegal or invalid, the
validity of the remaining parts, terms or provisions shall not be affected
thereby and said illegal or invalid part, term or provision shall be severed and
deemed not to be part of the Agreement.
10. Counterparts. The Agreement may be executed in
facsimile counterparts, each of which, when all parties have executed at least
one such counterpart, shall be deemed an original, with the same force and
effect as if all signatures were appended to one instrument, but all of which
together shall constitute one and the same Agreement. 11. Choice of Laws. The
Agreement shall be governed by and construed in accordance with the substantive
law of the State of New York.
IN WITNESS WHEREOF, the parties have read and executed the Agreement as
of the date and year first above written.
By: Olivier Prache
------------------
Name: Olivier Prache
Title:
EMAGIN CORPORATION
By: Gary Jones
----------------
Name: Gary Jones
Title: Chairman
EXHIBIT 5.1
SICHENZIA ROSS FRIEDMAN FERENCE LLP
Attorneys At Law
1065 Avenue of the Americas
New York, New York 10018
---------------------
Telephone: (212) 930-9700
Facsimile: (212) 930-9725
E-Mail: srflaw@i-2000.com
September 19, 2003
VIA ELECTRONIC TRANSMISSION
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: eMagin Corporation
Form S-8 Registration Statement
Ladies and Gentlemen:
We refer to the above-captioned registration statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"), filed by eMagin Corporation, a Florida corporation (the "Company"), with
the Securities and Exchange.
We have examined the originals, photocopies, certified copies or other
evidence of such records of the Company, certificates of officers of the Company
and public officials, and other documents as we have deemed relevant and
necessary as a basis for the opinion hereinafter expressed. In such examination,
we ave assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as certified copies or photocopies and the
authenticity of the originals of such latter documents.
Based on our examination mentioned above, we are of the opinion that
the securities being registered to be sold pursuant to the Registration
Statement are duly authorized and will be, when sold in the manner described in
the Registration Statement, legally and validly issued, and fully paid and
non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to our firm under "Legal Matters" in
the related Prospectus. In giving the foregoing consent, we do not hereby admit
that we are in the category of persons whose consent is required under Section 7
of the Act, or the rules and regulations of the Securities and Exchange
Commission.
Very truly yours,
/s/ Sichenzia Ross Friedman Ference LLP
---------------------------------------
Sichenzia Ross Friedman Ference LLP
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated April 11, 2003 accompanying the consolidated
financial statements of eMagin Corporation and subsidiaries included in the
Annual Report on Form 10-K/A for the year ended December 31, 2002, which is
incorporated by reference in this Registration Statement. We consent to the
incorporation by reference in the Registration Statement of the aforementioned
report.
/S/ Grant Thorton
------------------
GRANT THORNTON LLP
New York, New York
September 16, 2003