As filed with the Securities and Exchange Commission on December 23, 2003
Registration No. 333-_________________
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
COLOR IMAGING, INC.
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(Exact name of registrant as specified in its charter)
Delaware 13-3453420
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4350 Peachtree Industrial Blvd., Suite 100, Norcross, GA 30071
(Address of Principal Executive Offices) (Zip Code)
COLOR IMAGING, INC. 2003 STOCK INCENTIVE PLAN
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(Full title of the plan)
Morris E. Van Asperen, CFO
4350 Peachtree Industrial Blvd.,
Suite 100
Norcross, GA 30071
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(Name and address of agent for service)
(770) 840-1090
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(Telephone number, including area code, of agent for service)
Copy to:
Robert F. Dow, Esq.
Arnall Golden Gregory LLP
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3450
(404) 873-8706
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum Amount of
Title of securities Amount to be maximum offering Aggregate registration
to be registered(1) Registered price per share(2) offering price fee(2)
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Common Stock $0.01 par value 530,000 Shares $0.70 $371,000 $30
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Common Stock $0.01 par value 970,000 Shares $2.08 $2,017,600 $164
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Total 1,500,000 Shares $194
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(1) This Registration Statement also covers such indeterminable number of
additional shares as may become issuable to prevent dilution in the event
of stock splits, stock dividends or similar transactions pursuant to the
terms of the Color Imaging, Inc., 2003 Stock Incentive Plan (the "Plan").
(2) Calculated pursuant to Rules 457(c) and 457(h), (i) based on the weighted
average exercise price of $2.08 as to 970,000 options issued and (ii) based
upon the average of the high and low prices reported for the Common Stock
on December 22, 2003 as quoted on the NASDAQ OTC Bulletin Board, for the
530,000 shares subject to options issuable but not yet granted under the
Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in the Registration
Statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended December
31, 2002.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2003.
(c) The Registrant's Current Reports on Form 8-K filed on January 24, March
7, April 12, and April 22, 2003.
(d) The description of the Registrant's Common Stock, as such description
is set forth in the Registrant's final prospectus filed on January 24, 2003
pursuant to Section 424(b) of the Securities Act of 1933 (File No. 333-76090),
including any amendment or report filed for the purpose of updating such
description.
(e) All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment to this registration statement which
indicates that all of the shares of Common Stock offered have been sold or which
deregisters all of such shares then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents. Any statement contained 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 such 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a
corporation generally to indemnify any person ("indemnitee") who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or in the right of
the corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation, in a similar position with another corporation or
entity, 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 such person acted in good faith and in a
manner such person 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 such person's conduct was
unlawful. With respect to actions or suits by or in the right of the
corporation, however, an indemnitee who acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation is generally limited to attorneys' fees and other expenses, and no
indemnification shall be made if such person is adjudged liable to the
corporation unless and only to the extent that a court of competent jurisdiction
determines that indemnification is appropriate. Section 145 further provides
that any indemnification shall be made by the corporation only as authorized in
each specific case upon a determination by the (i) stockholders, (ii) board of
directors by a majority vote of directors who were not parties to such action,
suit or proceeding or (iii) independent counsel, that indemnification of the
indemnitee is proper because such has met the applicable standard of conduct.
Section 145 provides that indemnification under its provisions is not exclusive
of other rights of indemnification to which a person may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or otherwise.
2
Our Certificate of Incorporation provides that we will indemnify, to the
fullest extent permitted by law, any person or such person's heirs, executors
and administrators 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, by reason of the fact that such
person is or was a director, officer, employee or agent of our company, or is or
was serving at the our request as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
domestic or foreign, against expenses, attorneys' fees, court costs, judgments,
fines, amounts paid in settlement and other losses actually and reasonably
incurred by such person in connection with such action, suit or proceeding.
The Certificate of Incorporation also provides that none of our directors
will be personally liable to us or our stockholders for monetary damages for any
breach of fiduciary duty by such a director as a director other than for: (i)
any breach of the director's duty of loyalty to us or our stockholders, (ii)
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) liability under Section 174 of the General
Corporation Law of Delaware, or (iv) any transaction from which such director
derived an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Exhibit
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3.1 Certificate of Incorporation, incorporated by reference to
Exhibit 3.1 to the Registration statement on Form SB-2 filed
July 15, 2002
3.2 Bylaws, incorporated by reference to the Registrant's Form
10-QSB for the quarter ended March 31, 2002
5* Opinion of Arnall Golden Gregory LLP regarding legality
23.1* Consent of Arnall Golden Gregory LLP (included as part of
Exhibit 5 hereto)
23.2* Consent of Lazar Levine & Felix LLP
24.1* Power of Attorney (included as part of the signature page
hereto)
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* 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:
(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;
(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;
3
Provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) shall
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed 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 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 (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.
(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 provisions described in Item 6 above, 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
proceedings) 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.
4
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 the City of Atlanta, State of Georgia on December 23, 2003.
COLOR IMAGING, INC.
By: /s/ Jui-Kung Wang
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Jui-Kung Wang, Chief Executive Officer
POWER OF ATTORNEY
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 dates indicated. Each person whose signature appears below
hereby constitutes and appoints Sueling Wang, Ph.D. and Morris E. Van Asperen,
or either of them, as such person's true and lawful attorney-in-fact and agent
with full power of substitution for such person and in such person's name, place
and stead, in any and all capacities, to sign and to file with the Securities
and Exchange Commission, any and all amendments and post-effective amendments to
this Registration Statement, with exhibits thereto and other documents in
connection therewith, granting unto said 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, as fully to all intents and
purposes as such person might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or any substitute therefor,
may lawfully do or cause to be done by virtue thereof.
SIGNATURE TITLE DATE
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/s/ Jui-Kung Wang Chief Executive Officer (Principal December 23, 2003
------------------------------------ Executive Officer) Chairman of the
Jui-Kung Wang Board and Director
/s/ Sueling Wang, Ph.D. President, Vice-Chairman of the Board December 23, 2003
------------------------------------ and Director
Sueling Wang, Ph.D.
/s/ Morris E. Van Asperen Executive Vice President, Chief December 23, 2003
------------------------------------ Financial Officer (Principal
Morris E. Van Asperen Financial and Accounting Officer),
Secretary and Director
/s/ Yi-Jen Wang Assistant Vice President and Director December 23, 2003
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Yi-Jen Wang
/s/ Jui-Chi Wang Director December 23, 2003
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Jui-Chi Wang
/s/ Jui-Hung Wang Director December 23, 2003
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Jui-Hung Wang
/s/ Richard S. Eiswirth Director December 23, 2003
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Richard S. Eiswirth
5
EXHIBIT INDEX
Exhibit No. Exhibit
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3.1 Certificate of Incorporation, incorporated by reference to
Exhibit 3.1 to the Registration statement on Form SB-2 filed
July 15, 2002
3.2 Bylaws, incorporated by reference to the Registrant's Form
10-QSB for the quarter ended March 31, 2002
5* Opinion of Arnall Golden Gregory LLP regarding legality
23.1* Consent of Arnall Golden Gregory LLP (included as part of
Exhibit 5 hereto)
23.2* Consent of Lazar Levine & Felix LLP
24.1* Power of Attorney (included as part of the signature page
hereto)
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* Filed herewith.
1686589