As filed with the Securities and Exchange Commission on July 6, 2004
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)
2004 NON-EMPLOYEE COMPENSATION PLAN
(full time of plan)
Gary Jones, President
2070 Route 52
Hopewell Junction, New York 12533
(Name and address of agent for service)
(845) 838-7900
(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 1,000,000 $1.70 $1,700,000 $215.39
($.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 June 29, 2004.
EXPLANATORY NOTE
This registration statement on Form S-8 relates to the issuance of up to
1,000,000 shares of common stock under the Company's 2004 Non-Employee
Compensation Plan to consultants, professionals, and service providers who
provide services to the Company in connection with, among other things, the
Company's obligations as a publicly-held reporting company. Such plan was
approved by shareholders at the Company's Annual meeting of Shareholders held on
June 15, 2004.
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 for
the year ended December 31, 2003, as filed with the SEC on April 13,
2004, 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, 2004, as filed with the Commission on
May 14, 2004, which is hereby incorporated by reference.
o Reference is made to the Registrant's current report on Form 8-K, as
filed with the Commission on May 28, 2004, which is hereby
incorporated by reference.
o Reference is made to the Registrant's Definitive Proxy on Form 14A, as
filed with the SEC on May 24, 2004, which is hereby incorporated by
reference.
o Reference is made to the Registrant's registration statement on Form
S-3/A, as filed with the Commission on June 10, 2004, which is hereby
incorporated by reference.
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.
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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 may receive shares of common stock under the 2004 Non-Employee
Compensation Plan in connection with legal services.
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 2004 Non-Employee Compensation Plan
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 Eisner LLP
23.3 Consent of Grant Thornton LLP
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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.
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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 July 6, 2004.
EMAGIN CORPORATION
By:/s/ Gary Jones
--------------
Gary Jones
President and Chief Executive Office
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/ Gary Jones Director July 6, 2004
---------------
Gary Jones
/s/ Claude Charles Director July 6, 2004
------------------
Claude Charles
/s/ Paul Cronson Director July 6, 2004
----------------
Paul Cronson
/s/ Jack Rivkin Director July 6, 2004
---------------
Jack Rivkin
/s/ Jack Goldman Director July 6, 2004
----------------
Jack Goldman
/s/ Dr. Jill Wittels Director July 6, 2004
--------------------
Dr. Jill Wittels
/s/ Rear Admiral Thomas Paulsen, USN Director July 6, 2004
------------------------------------
Rear Admiral Thomas Paulsen, USN
/s/ John Atherly Chief Financial Officer July 6, 2004
----------------
John Atherly
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EXHIBIT
NUMBER EXHIBIT
4.1 2004 Non-Employee Compensation Plan
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 Eisner LLP
23.3 Consent of Grant Thornton LLP
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