As filed with the Securities and Exchange Commission on June 2, 2003
Registration No. 333-88538
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
IMAGISTICS INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
DELAWARE 06-1611068
(State or other juris- (I.R.S. Employer
diction of incorporation Identification
or organization) Number)
100 OAKVIEW DRIVE
TRUMBULL, CONNECTICUT 06611
(203) 365-7000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
IMAGISTICS INTERNATIONAL INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
MARK S. FLYNN, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
IMAGISTICS INTERNATIONAL INC.
100 OAKVIEW DRIVE
TRUMBULL, CONNECTICUT 06611
(203) 365-7000
(Name, address and telephone number, including area code, of agent for service)
Copies of all communications, including all communications sent to the agent
for service, should be sent to:
MICHAEL GRUNDEI, ESQ.
WIGGIN & DANA LLP
400 ATLANTIC STREET
STAMFORD, CONNECTICUT 06901
(203) 363-7600
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EXPLANATORY NOTE
This Post Effective Amendment is being filed to reflect the amendment
of certain terms of the Registrant's Employee Stock Purchase Plan.
PART I
ITEM 1. PLAN INFORMATION
Not required to be filed with this registration statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed with this registration statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Imagistics International Inc. (the "Registrant"
or the "Company") pursuant to the Securities Exchange Act of 1934, as amended
(the "1934 Act") (File No. 1-16449), are incorporated by reference herein:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 2002.
(b) The Company's Quarterly Report on Form 10-Q for the three-month
period ended March 31, 2003.
(c) The Company's Proxy Statement filed on April 14, 2003.
(d) The Company's Current Reports on Form 8-K filed on May 8, 2003 and
May 21, 2003.
(e) The description of the Company's Common Stock and the Rights
contained in the Company's Registration Statement on Form 10 dated November 14,
2001 (the "Form 10").
In addition to the foregoing, all documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior
to the filing of a post-effective amendment indicating that all of the
securities offered hereunder have been sold or deregistering all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents. Any statement contained in a document incorporated by reference in
this Registration Statement 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 subsequently filed document that is also 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.
The Registrant will provide, without charge to each person, including
any beneficial owner, to whom this document is delivered, upon written or oral
request of such person, a copy of any or all of the documents incorporated
herein by reference (other than exhibits, unless such exhibits specifically are
incorporated by reference into such documents or this document). Requests for
such documents should be submitted in writing, addressed to the office of the
Corporate Secretary, Imagistics International Inc., 100 Oakview Drive, Trumbull,
Connecticut 06611.
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ITEM 4. DESCRIPTION OF SECURITIES
Not applicable, see Item 3(e) above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
(the "Delaware Law") empowers a Delaware corporation to indemnify any persons
who are, or are threatened to be made, parties to any pending or completed legal
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by
reason of the fact that such person was an officer or director of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer or
director acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his conduct was illegal. A Delaware
corporation may indemnify officers and directors against expenses (including
attorney's fees) in connection with the defense or settlement of an action by or
in the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer is
successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him against the expenses which such an
officer or director actually and reasonably incurred.
In accordance with the Delaware Law, the Registrant's Certificate of
Incorporation contains a provision to limit the personal liability of the
Registrant's directors for violations of their fiduciary duty. This provision
eliminates each director's liability to the Registrant or its stockholders for
monetary damages except (i) for any breach of the director's duty of loyalty to
the Registrant or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware Law providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions, or
(iv) for any transaction from which a director derived an improper personal
benefit. The effect of this provision is to eliminate the personal liability of
directors for monetary damages for actions involving a breach of their fiduciary
duty of care, including any such actions involving gross negligence. In
addition, the holders of Common Stock are deemed to have consented to certain
provisions of the Certificate of Incorporation under which certain allocations
of corporate opportunities are not deemed to breach a director's fiduciary duty
of loyalty.
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The Registrant's Certificate of Incorporation provides for
indemnification of the Registrant's officers and directors to the full extent
permitted by applicable law.
In addition, the Registrant will maintain directors' and officers'
liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibit
No. Description
--- -----------
4.1 Amended and Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to the Registrant's Form 10-K for the year
ended December 31, 2001) *
4.2 Amended and Restated By-laws (incorporated by reference to Exhibit 3.2
to the Company's Form 10) *
4.3 Rights Agreement (incorporated by reference to Exhibit 10.18 to the
Company's Form 10-K for the year ended December 31, 2001) *
4.4 Imagistics International Inc. Employee Stock Purchase Plan +
4.5 First Amendment to the Imagistics International Inc. Employee Stock
Purchase Plan
4.6 First Amendment Agreement to Rights Agreement between the Registrant
and its rights agent (incorporated by reference to Exhibit 10.30 to
the Registrant's Form 10-Q for the quarter ended June 30, 2002) *
4.7 Certificate of Designation of Series A Junior Participating
Preferred Stock (incorporated by reference to Exhibit 3.3 to the
Registrant's Form 10-Q for the quarter ended June 30, 2002) *
5.1 Opinion of Wiggin & Dana LLP +
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Wiggin & Dana LLP (filed as part of Exhibit 5) +
24.1 Powers of Attorney +
--------------------
* Incorporated herein by reference.
+ Previously filed.
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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:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the "1933 Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this registration statement. Notwithstanding the foregoing any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement; provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the registration statement is on Form
S-3, Form S-8 or Form F-3, and the information required to be included
in a post effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that
are incorporated by reference into this registration statement;
(2) That for the purpose of determining any liability under the
1933 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; and
(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 1933 Act, each filing of the Registrant's
Annual Report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and
where applicable, each filing of the Plan's annual report pursuant to Section
15(d) of the 1934 Act) that is incorporated by reference in the
II-5
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 1933 Act
may be permitted to directors, officers or controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the 1933 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 1933 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, as
amended, 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 Trumbull, State of Connecticut, on this 2nd day
of June, 2003.
IMAGISTICS INTERNATIONAL INC.
By: /s/ Mark S. Flynn
------------------------------------------
Mark S. Flynn
Vice President, General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Marc C. Breslawsky* Chairman, June 2, 2003
------------------------------------ Chief Executive Officer and
Marc C. Breslawsky Director (principal executive
officer)
/s/ Joseph D. Skrzypczak* Chief Financial Officer June 2, 2003
------------------------------------ (principal financial officer)
Joseph D. Skrzypczak
/s/ Timothy E. Coyne* Controller June 2, 2003
------------------------------------ (principal accounting officer)
Timothy E. Coyne
/s/ Thelma R. Albright* Director June 2, 2003
------------------------------------
Thelma R. Albright
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/s/ T. Kevin Dunnigan* Director June 2, 2003
------------------------------------
T. Kevin Dunnigan
/s/ Ira D. Hall* Director June 2, 2003
------------------------------------
Ira D. Hall
/s/ Craig R. Smith* Director June 2, 2003
------------------------------------
Craig R. Smith
/s/ James A. Thomas* Director June 2, 2003
------------------------------------
James A. Thomas
/s/ Mark S. Flynn
----------------------------------------------
* By Mark S. Flynn
Attorney-in-fact
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INDEX TO EXHIBITS
Exhibit
No. Description
--- -----------
4.1 Amended and Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to the Registrant's Form 10-K for the year
ended December 31, 2001) *
4.2 Amended and Restated By-laws (incorporated by reference to Exhibit 3.2
to the Company's Form 10) *
4.3 Rights Agreement (incorporated by reference to Exhibit 10.18 to the
Company's Form 10-K for the year ended December 31, 2001) *
4.4 Imagistics International Inc. Employee Stock Purchase Plan +
4.5 First Amendment to the Imagistics International Inc. Employee Stock
Purchase Plan
4.6 First Amendment Agreement to Rights Agreement between the Registrant
and its rights agent (incorporated by reference to Exhibit 10.30 to
the Registrant's Form 10-Q for the quarter ended June 30, 2002) *
4.7 Certificate of Designation of Series A Junior Participating
Preferred Stock (incorporated by reference to Exhibit 3.3 to the
Registrant's Form 10-Q for the quarter ended June 30, 2002) *
5.1 Opinion of Wiggin & Dana LLP +
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Wiggin & Dana LLP (filed as part of Exhibit 5) +
24.1 Powers of Attorney +
--------------------
* Incorporated herein by reference.
+ Previously filed.
EXHIBIT 4.5
FIRST AMENDMENT
TO THE
IMAGISTICS INTERNATIONAL INC. EMPLOYEE STOCK PURCHASE PLAN
1. The third paragraph of Section 4 of the Plan is hereby amended in its
entirety to read as follows:
"Compensation" shall mean a Participant's base salary earnings
for the Offering Period determined, on or after July 1, 2003, as of the
September 30th prior to the Plan Year in which such Offering Period
falls, provided, however, that if a Participant was not employed by the
Company as of such September 30th, Compensation shall be determined as
of the commencement of the Offering Period. With respect to
Participants paid partially or entirely on commission, "Compensation"
shall mean such Participant's Average Benefit Base Rate of compensation
for the Offering Period. With respect to Offering Periods commencing on
and after July 1, 2003 for commissioned salespersons with twelve (12)
or more months of service with the Company determined as of September
30th prior to the Plan Year in which such Offering Period falls,
"Average Benefit Base Rate" shall equal an amount, determined by taking
such individual's annualized average of base salary plus commissions
computed as of September 30th prior to the Plan Year in which such
Offering Period falls, using data from the prior 12-month period ending
on such September 30th. With respect to Offering Periods commencing on
and after July 1, 2003 for commissioned salespersons with fewer than
twelve (12) months of service (such service being determined as
previously stated), "Average Benefit Base Rate" shall consist only of
base salary as of September 30th prior to the Plan Year in which the
Offering Period falls. In the event that Average Benefit Base Rate
cannot be determined as of such September 30th because the commissioned
salesperson was not then employed by the Company, Average Benefit Base
Rate shall be base salary determined as of the commencement of the
Offering Period. In all cases, Compensation and ABBR shall be
determined excluding renewal commissions, bonuses, overtime, merit
increases and any extra compensation, but shall not be reduced by
pre-tax deductions made to the Imagistics International Inc. 401(k)
Plan, medical and dental plan, or health care and dependent care
flexible spending accounts. With respect to Offering Periods ending
before July 1, 2003, "Average Benefit Base Rate" shall equal an amount
determined, by taking the prior year's year regular earnings from
January 1 through August 31 of such year, plus commissions for the same
period, divided by 8 and multiplied by the number of months in the
Offering Period.
2. The last sentence of Section 14 of the Plan is hereby amended,
effective as of March 1, 2003, to read as follows:
The Committee may also amend or alter the Plan from time to time in a
manner not inconsistent with the Board's power to amend, suspend, or
discontinue the Plan
including, without limitation by changing the definition of
Compensation and Average Benefit Base Rate from which Payroll
Deductions may be made.
IMAGISTICS INTERNATIONAL INC.
By Mark S. Flynn
--------------------------------------
Its Vice President, General Counsel
and Secretary
EXHIBIT 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated February 4, 2003, except
for Note 16, as to which the date is March 5, 2003, relating to the consolidated
financial statements of Imagistics International Inc., which appears in
Imagistics International Inc.'s Annual Report on Form 10-K for the year ended
December 31, 2002. We also consent to the incorporation by reference of our
report dated February 4, 2003, except for Note 16, as to which the date is March
5, 2003, relating to the financial statement schedule, which appears in such
Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Stamford, Connecticut
May 30, 2003