eMagin Corp. Form S-8
As
filed
with the Securities and Exchange Commission on May 26, 2006
Registration
No. 333-___________
UNITED
STATES
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
incorporation or organization)
|
(IRS
Employer Identification
No.)
|
| |
|
10500
N.E. 8th
Street,
Suite 1400
Bellevue,
WA 98004
(Address
of principal executive offices) (Zip Code)
2005
EMPLOYEE STOCK PURCHASE PLAN
2004
NON-EMPLOYEE STOCK COMPENSATION PLAN
AMENDED
AND RESTATED 2003 Stock Option Plan
AND
NON-PLAN OPTIONS
(Full
title of Plan)
Gary
W.
Jones
Chief
Executive Officer
eMagin
Corporation
10500
N.E. 8th
Street,
Suite 1400
Bellevue,
WA 98004
(Name
and
address of agent for service)
(425)
749-3600
(Telephone
number, including area code, of agent for service)
Richard
A. Friedman, Esq.
Eric
A.
Pinero, Esq.
Sichenzia
Ross Friedman Ference LLP
1065
Avenue of Americas
New
York,
NY 10018
Phone
(212) 930-9700
Fax
(212)
930-9725
CALCULATION
OF REGISTRATION FEE
| Title
of |
|
Amount
|
|
Offering
|
|
Proposed
Maximum
|
|
Proposed
Maximum
|
|
| Securities
to be |
|
to
be
|
|
Price
|
|
Aggregate
|
|
Amount
of
|
|
| Registered |
|
Registered
(1)
|
|
Per
Share
(6)
|
|
Offering
Price
|
|
Registration
Fee
|
|
| |
|
|
|
|
|
|
|
|
|
| Common
Stock |
|
|
1,500,000
|
(2) |
|
$0.28
|
|
|
$420,000 |
|
|
$44.94 |
|
| $.001
par value |
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
| Common
Stock |
|
|
1,000,000
|
(3) |
|
$0.28
|
|
|
$280,000 |
|
|
$29.96 |
|
| $.001
par value |
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
| Common
Stock |
|
|
5,388,339
|
(4) |
|
$0.28
|
|
|
$1,508,734.92 |
|
|
$161.44 |
|
| $.001
par value |
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
| Common
Stock |
|
|
6,112,000
|
(5) |
|
$0.28
|
|
|
$1,711,360 |
|
|
$183.12 |
|
| $.001
par value |
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total: |
|
|
14,000,339
|
|
|
|
|
|
$3,920,094.92 |
|
|
$419.46 |
|
(1)
Pursuant to Rule 416 promulgated under the Securities Act of 1933, as amended,
this registration statement covers such indeterminate additional shares of
common stock to be offered or issued to prevent dilution as a result of future
stock splits, stock dividends or other similar transactions.
(2)
Consists of shares of common stock pursuant to our 2005 Employee Stock Purchase
Plan.
(3)
Consists of shares of common stock pursuant to our 2004 Non-Employee Stock
Compensation Plan.
(4)
Consists of shares of common stock issuable upon exercise of options pursuant
to
our Amended and Restated 2003 Stock Option Plan.
(5)
Consists of shares of common stock issuable under exercise of options granted
outside of our Option Plans through 2005.
(6)
Estimated solely for purposes of calculating the registration fee in accordance
with Rule 457(c) under the Securities Act of 1933, using the average of the
high
and low price as reported on the American Stock Exchange on May 25, 2006 of
$0.28 per share.
EXPLANATORY
NOTE
This
Registration Statement is being filed in accordance with the requirements of
Form S-8 in order to register shares issuable under the 2004 and 2005 Employee
Stock Purchase Plans, the Amended and Restated 2003 Employee Stock Purchase
Plan
and the 2004 Non-Employee Stock Compensation Plan that were approved by
shareholders at the Company's Annual Meetings of Shareholders held on July
2,
2003 and September 30, 2005.
An
aggregate of 14,000,339 shares of our common stock, par value $0.001 per share,
consisting of (i) 1,500,000 shares of common stock issuable pursuant to our
2005
Employee Stock Purchase Plan, (ii) 1,000,000 shares of common stock issuable
pursuant to our 2004 Non-Employee Stock Compensation Plan, (iii) 5,388,339
shares of common stock issuable upon exercise of options pursuant to our Amended
and Restated 2003 Stock Option Plan, and (iv) 6,112,000 shares of our common
stock issuable upon exercise of options issued outside of the Company’s Option
Plans through March 31, 2006.
In
addition, the Prospectus filed as part of this Registration Statement has been
prepared in accordance with the requirements of Form S-3 and may be used for
reofferings and resales of up to an aggregate of 2,897,500 shares of our common
stock, consisting of (i) 1,947,500 shares issuable upon exercise of options
under our 2003 Employee Stock Option Plan, (ii) 200,000 shares issuable under
our 2003 Employee Stock Option Plan, and (iii) 750,000 issuable outside any
Plan.
PART
I
Item
1. Plan Information.
The
documents containing the information specified in Item 1 will be sent or given
to participants in the 2005 Employee Stock Purchase Plan, the 2004 Non-Employee
Stock Compensation Plan and the Amended and Restated 2003 Stock Option Plan
as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). Such documents are not required to be and are not filed
with
the Securities and Exchange Commission (the "SEC") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant
to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
Upon
written or oral request, any of the documents incorporated by reference in
Item
3 of Part II of this Registration Statement (which documents are incorporated
by
reference in this Section 10(a) Prospectus), other documents required to be
delivered to eligible employees, non-employee directors and consultants,
pursuant to Rule 428(b) are available without charge by contacting:
Gary
W.
Jones, Chief Executive Officer
eMagin
Corporation
10500
N.E. 8th
Street,
Suite 1400
Bellevue,
WA 98004
(425)
749-3600
Prospectus
eMagin
Corporation
2,897,500
SHARES OF COMMON STOCK
This
prospectus relates to the sale of up to 2,897,500 shares of common stock of
eMagin Corporation offered by certain holders of our securities, including
up to
(i) 1,947,500 shares issuable upon exercise of options under our 2003 Employee
Stock Option Plan, (ii) 200,000 shares issuable under our 2003 Employee Stock
Option Plan and (iii) 750,000 issuable outside any Plan. The shares may be
offered by the selling stockholders from time to time in regular brokerage
transactions, in transactions directly with market makers or in certain
privately negotiated transactions. For additional information on the methods
of
sale, you should refer to the section entitled "Plan of Distribution." We will
not receive any of the proceeds from the sale of the shares by the selling
stockholders.
Our
common stock trades on the American Stock Exchange under the symbol
"EMA." On
May
25, 2006, the closing sale price of the common stock was $0.28 per share.
The
securities offered hereby are speculative and involve a high degree of risk
and
substantial dilution. Only investors who can bear the risk of loss of their
entire investment should invest. See "Risk Factors" beginning on page
7.
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities or determined if this prospectus
is
truthful or complete. Any representation to the contrary is a criminal
offense.
The
date
of this prospectus is May 26,
2006
TABLE
OF CONTENTS
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Page
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6
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7
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13
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14
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15
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15
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15
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15
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16
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17
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NO
PERSON
HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS,
OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, IN CONNECTION WITH THE OFFERING
MADE HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST
NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY OTHER PERSON.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER
ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES
OFFERED HEREBY BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION
IS
NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION.
Overview
We
design
and manufacture miniature displays, which we refer to as
OLED-on-silicon-microdisplays, and microdisplay modules for virtual imaging,
primarily for incorporation into the products of other manufacturers.
Microdisplays are typically smaller than many postage stamps, but when viewed
through a magnifier they can contain all of the information appearing on a
high-resolution personal computer screen. Our microdisplays use organic light
emitting diodes, or OLEDs, which emit light themselves when a current is passed
through the device. Our technology permits OLEDs to be coated onto silicon
chips
to produce high resolution OLED-on-silicon microdisplays.
We
believe that our OLED-on-silicon microdisplays offer a number of advantages
in
near to the eye applications over other current microdisplay technologies,
including lower power requirements, less weight, fast video speed without
flicker, and wider viewing angles. In addition, many computer and video
electronic system functions can be built directly into the OLED-on-silicon
microdisplay, resulting in compact systems with lower expected overall system
costs relative to alternate microdisplay technologies.
We
license our core OLED technology from Eastman Kodak and we have developed our
own technology to create high performance OLED-on-silicon microdisplays and
related optical systems. We believe our technology licensing agreement with
Eastman Kodak, coupled with our own intellectual property portfolio, gives
us a
leadership position in OLED and OLED-on-silicon microdisplay technology. We
believe that we are the only company to demonstrate publicly and market
full-color small molecule OLED-on-silicon microdisplays.
History
Historically,
we have been a developmental stage company. As of January 1, 2003, we were
no
longer classified as a development stage company. We have transitioned to
manufacturing our product and intend to significantly increase our marketing,
sales, and research and development efforts, and expand our operating
infrastructure. Currently, most of our operating expenses are fixed. If we
are
unable to generate significant revenues, our net losses in any given period
could be greater than expected.
Our
principal executive office is located at 10500
N.E. 8th
Street,
Suite 1400, Bellevue, Washington 98004.
This
Offering
| Shares of common stock outstanding prior
to
this
offering........................................................... |
100,104,944 (1) |
| |
|
|
Shares
of common stock issuable upon
exercise
of outstanding options which
may
be offered
pursuant to this
prospectus.....................................................................................
|
2,897,500
|
| |
|
|
Use of
proceeds....................................................................................................................................
|
We will not receive any proceeds from
the
sale of the shares of common stock offered in |
|
|
this
prospectus. We will receive proceeds to
the extent that currently outstanding options are exercised for cash.
We
will use the exercise proceeds, if any, for working capital and general
corporate purposes.
|
| |
|
|
Risk
Factors...........................................................................................................................................
|
The
purchase
of
our
common stock involves a high degree of
risk.
You should carefully
|
| |
review and consider "Risk Factors" beginning
on page
7. |
| |
|
| American Stock Exchange
Symbol..................................................................................................... |
EMA |
(1)
As of
May 12, 2006. Does not include shares of common stock issuable upon exercise
of
outstanding options or warrants.
Investment
in our common stock involves a high degree of risk. You should consider the
following discussion of risks as well as other information in this prospectus.
The risks and uncertainties described below are not the only ones. If any of
the
following risks actually occur, our business could be harmed. In such case,
the
trading price of our common stock could decline.
RISKS
RELATED TO OUR FINANCIAL RESULTS
WE
HAVE A HISTORY OF LOSSES SINCE OUR INCEPTION AND MAY INCUR LOSSES FOR THE
FORESEEABLE FUTURE.
Accumulated
losses excluding non-cash transactions as of March 31, 2006 were $69 million
and
acquisition related non-cash transactions were $102 million, which resulted
in
an accumulated net loss of $171 million. We have not yet achieved
profitability and we can give no assurances that we will achieve profitability
within the foreseeable future as we fund operating and capital expenditures
in
areas such as establishment and expansion of markets, sales and marketing,
operating equipment and research and development. We cannot assure investors
that we will ever achieve or sustain profitability or that our operating losses
will not increase in the future.
WE
MAY NOT BE ABLE TO EXECUTE OUR BUSINESS PLAN AND MAY NOT GENERATE CASH FROM
OPERATIONS
In
the
event that cash flow from operations is less than anticipated and we are unable
to secure additional funding to cover our expenses, in order to preserve cash,
we would be required to reduce expenditures and effect reductions in our
corporate infrastructure, either of which could have a material adverse effect
on our ability to continue our current level of operations. To the extent that
operating expenses increase or we need additional funds to make acquisitions,
develop new technologies or acquire strategic assets, the need for additional
funding may be accelerated and there can be no assurances that any such
additional funding can be obtained on terms acceptable to us, if at all. If
we
were not able to generate sufficient capital, either from operations or through
additional debt or equity financing, to fund our current operations, we would
be
forced to significantly reduce or delay our plans for continued research and
development and expansion. This could significantly reduce the value of our
securities.
OUR
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM HAS EXPRESSED DOUBT ABOUT OUR
ABILITY TO CONTINUE AS A GOING CONCERN, WHICH MAY HINDER OUR ABILITY TO OBTAIN
FUTURE FINANCING
Our
condensed consolidated financial statements as of March 31, 2006 have been
prepared under the assumption that we will continue as a going concern for
the
year ending December 31, 2006. Our independent registered public accounting
firm
have issued a report dated March 15, 2006 that included an explanatory
paragraph expressing substantial doubt in our ability to continue as a
going concern without additional capital becoming available. Our ability to
continue as a going concern ultimately is dependent on our ability to generate
a
profit which is likely dependant upon our ability to obtain additional
equity or debt financing, attain further operating efficiencies and, ultimately,
to achieve profitable operations. The financial statements do not include any
adjustments that might result from the outcome of this
uncertainty.
RISKS
RELATED TO MANUFACTURING
THE
MANUFACTURE OF OLED-ON-SILICON IS NEW AND OLED MICRODISPLAYS HAVE NOT BEEN
PRODUCED IN SIGNIFICANT QUANTITIES.
If
we are
unable to produce our products in sufficient quantity, we will be unable to
maintain and attract new customers. In addition, we cannot assure you that
once
we commence volume production we will attain yields at high throughput that
will
result in profitable gross margins or that we will not experience manufacturing
problems which could result in delays in delivery of orders or product
introductions.
WE
ARE DEPENDENT ON A SINGLE MANUFACTURING LINE.
We
currently manufacture our products on a single manufacturing line. If we
experience any significant disruption in the operation of our manufacturing
facility or a serious failure of a critical piece of equipment, we may be unable
to supply microdisplays to our customers. For this reason, some OEMs may also
be
reluctant to commit a broad line of products to our microdisplays without a
second production facility in place. However, we try to maintain product
inventory to fill the requirements under such circumstances. Interruptions
in
our manufacturing could be caused by manufacturing equipment problems, the
introduction of new equipment into the manufacturing process or delays in the
delivery of new manufacturing equipment. Lead-time for delivery of manufacturing
equipment can be extensive. No assurance can be given that we will not lose
potential sales or be unable to meet production orders due to production
interruptions in our manufacturing line. In order to meet the requirements
of
certain OEMs for multiple manufacturing sites, we will have to expend capital
to
secure additional sites and may not be able to manage multiple sites
successfully.
WE
COULD EXPERIENCE MANUFACTURING INTERRUPTIONS, DELAYS, OR INEFFICIENCIES IF
WE
ARE UNABLE TO TIMELY AND RELIABLY PROCURE COMPONENTS FROM SINGLE-SOURCED
SUPPLIERS.
We
maintain several single-source supplier relationships, either because
alternative sources are not available or the relationship is advantageous due
to
performance, quality, support, delivery, capacity, or price considerations.
If
the supply of a critical single-source material or component is delayed or
curtailed, we may not be able to ship the related product in desired quantities
and in a timely manner. Even where alternative sources of supply are available,
qualification of the alternative suppliers and establishment of reliable
supplies could result in delays and a possible loss of sales, which could harm
operating results.
WE
EXPECT TO DEPEND ON SEMICONDUCTOR CONTRACT MANUFACTURERS TO SUPPLY OUR SILICON
INTEGRATED CIRCUITS AND OTHER SUPPLIERS OF KEY COMPONENTS, MATERIALS AND
SERVICES.
We
do not
manufacture the silicon integrated circuits on which we incorporate our OLED
technology. Instead, we expect to provide the design layouts to semiconductor
contract manufacturers who will manufacture the integrated circuits on silicon
wafers. We also expect to depend on suppliers of a variety of other components
and services, including circuit boards, graphic integrated circuits, passive
components, materials and chemicals, and equipment support. Our inability to
obtain sufficient quantities of high quality silicon integrated circuits or
other necessary components, materials or services on a timely basis could result
in manufacturing delays, increased costs and ultimately in reduced or delayed
sales or lost orders which could materially and adversely affect our operating
results.
RISKS
RELATED TO OUR INTELLECTUAL PROPERTY
WE
RELY ON OUR LICENSE AGREEMENT WITH EASTMAN KODAK FOR THE DEVELOPMENT OF OUR
PRODUCTS.
We
rely
on our license agreement with Eastman Kodak for the development of our products,
and the termination of this license, Eastman Kodak's licensing of its OLED
technology to others for microdisplay applications, or the sublicensing by
Eastman Kodak of our OLED technology to third parties, could have a material
adverse impact on our business.
Our
principal products under development utilize OLED technology that we license
from Eastman Kodak. We rely upon Eastman Kodak to protect and enforce key
patents held by Eastman Kodak, relating to OLED display technology. Eastman
Kodak's patents expire at various times in the future. Our license with Eastman
Kodak could terminate if we fail to perform any material term or covenant under
the license agreement. Since our license from Eastman Kodak is non-exclusive,
Eastman Kodak could also elect to become a competitor itself or to license
OLED
technology for microdisplay applications to others who have the potential to
compete with us. The occurrence of any of these events could have a material
adverse impact on our business.
WE
MAY NOT BE SUCCESSFUL IN PROTECTING OUR INTELLECTUAL PROPERTY AND PROPRIETARY
RIGHTS.
We
rely
on a combination of patents, trade secret protection, licensing agreements
and
other arrangements to establish and protect our proprietary technologies. If
we
fail to successfully enforce our intellectual property rights, our competitive
position could suffer, which could harm our operating results. Patents may
not
be issued for our current patent applications, third parties may challenge,
invalidate or circumvent any patent issued to us, unauthorized parties could
obtain and use information that we regard as proprietary despite our efforts
to
protect our proprietary rights, rights granted under patents issued to us may
not afford us any competitive advantage, others may independently develop
similar technology or design around our patents, our technology may be available
to licensees of Eastman Kodak, and protection of our intellectual property
rights may be limited in certain foreign countries. We may be required to expend
significant resources to monitor and police our intellectual property rights.
Any future infringement or other claims or prosecutions related to our
intellectual property could have a material adverse effect on our business.
Any
such claims, with or without merit, could be time consuming to defend, result
in
costly litigation, divert management's attention and resources, or require
us to
enter into royalty or licensing agreements. Such royalty or licensing
agreements, if required, may not be available on terms acceptable to us, if
at
all. Protection of intellectual property has historically been a large yearly
expense for eMagin. We have not been in a financial position to properly protect
all of our intellectual property, and may not be in a position to properly
protect our position or stay ahead of competition in new research and the
protecting of the resulting intellectual property.
RISKS
RELATED TO THE MICRODISPLAY INDUSTRY
THE
COMMERCIAL SUCCESS OF THE MICRODISPLAY INDUSTRY DEPENDS ON THE WIDESPREAD MARKET
ACCEPTANCE OF MICRODISPLAY SYSTEMS PRODUCTS.
The
market for microdisplays is emerging. Our success will depend on consumer
acceptance of microdisplays as well as the success of the commercialization
of
the microdisplay market. As an OEM supplier, our customer's products must also
be well accepted. At present, it is difficult to assess or predict with any
assurance the potential size, timing and viability of market opportunities
for
our technology in this market. The viewfinder microdisplay market sector is
well
established with entrenched competitors with whom we must compete.
THE
MICRODISPLAY SYSTEMS BUSINESS IS INTENSELY COMPETITIVE.
We
do
business in intensely competitive markets that are characterized by rapid
technological change, changes in market requirements and competition from both
other suppliers and our potential OEM customers. Such markets are typically
characterized by price erosion. This intense competition could result in pricing
pressures, lower sales, reduced margins, and lower market share. Our ability
to
compete successfully will depend on a number of factors, both within and outside
our control. We expect these factors to include the following:
| · |
our
success in designing, manufacturing and delivering expected new products,
including those implementing new technologies on a timely basis;
|
| · |
our
ability to address the needs of our customers and the quality of
our
customer services;
|
| · |
the
quality, performance, reliability, features, ease of use and pricing
of
our products;
|
successful
expansion of our manufacturing capabilities;
| · |
our
efficiency of production, and ability to manufacture and ship products
on
time;
|
| · |
the
rate at which original equipment manufacturing customers incorporate
our
product solutions into their own products;
|
| · |
the
market acceptance of our customers’ products; and
|
| · |
product
or technology introductions by our
competitors.
|
Our
competitive position could be damaged if one or more potential OEM customers
decide to manufacture their own microdisplays, using OLED or alternate
technologies. In addition, our customers may be reluctant to rely on a
relatively small company such as eMagin for a critical component. We cannot
assure you that we will be able to compete successfully against current and
future competition, and the failure to do so would have a materially adverse
effect upon our business, operating results and financial condition.
THE
DISPLAY INDUSTRY IS CYCLICAL.
The
display industry is characterized by
fabrication facilities that
require large capital expenditures and long lead times
for supplies and the subsequent processing time, leading to
frequent mismatches between supply and demand. The OLED microdisplay sector
may experience overcapacity if and when all of the facilities
presently in the planning stage come on line leading to a difficult
market in which to sell our products.
COMPETING
PRODUCTS MAY GET TO MARKET SOONER THAN OURS.
Our competitors are
investing substantial resources in the development and
manufacture of microdisplay systems using alternative
technologies such as reflective liquid crystal displays
(LCDs), LCD-on-Silicon ("LCOS") microdisplays, active matrix
electroluminescence and scanning image systems, and transmissive active matrix
LCDs. Our competitive position could be damaged if one or more of our
competitors’ products get to the market sooner than our products. We cannot
assure you that our product will get to market ahead of our competitors or
that
we will be able to compete successfully against current and future competition.
The failure to do so would have a materially adverse effect upon our business,
operating results and financial condition.
OUR
COMPETITORS HAVE MANY ADVANTAGES OVER US.
As
the microdisplay market develops, we expect to experience
intense competition from numerous domestic and foreign
companies including well-established corporations possessing worldwide
manufacturing and production facilities, greater name recognition,
larger retail bases and significantly greater
financial, technical, and marketing resources than us, as well as from
emerging companies attempting to obtain a share of the various markets in
which our microdisplay products have the potential to compete. We cannot assure
you that we will be able to compete successfully against current and future
competition, and the failure to do so would have a materially adverse effect
upon our business, operating results and financial condition.
OUR
PRODUCTS ARE SUBJECT TO LENGTHY OEM DEVELOPMENT PERIODS.
We
plan
to sell most of our microdisplays and related products to OEMs who will
incorporate them into or with products they sell. OEMs determine during their
product development phase whether they will incorporate our products. The time
elapsed between initial sampling of our products by OEMs, the custom design
of
our products to meet specific OEM product requirements, and the ultimate
incorporation of our products into OEM consumer products is significant. If
our
products fail to meet our OEM customers' cost, performance or technical
requirements or if unexpected technical challenges arise in the integration
of
our products into OEM consumer products, our operating results could be
significantly and adversely affected. Long delays in achieving customer
qualification and incorporation of our products could adversely affect our
business.
OUR
PRODUCTS WILL LIKELY EXPERIENCE RAPIDLY DECLINING UNIT PRICES.
In
the
markets in which we expect to compete, prices of established products tend
to
decline significantly over time. In order to maintain our profit margins over
the long term, we believe that we will need to continuously develop product
enhancements and new technologies that will either slow price declines of our
products or reduce the cost of producing and delivering our products. While
we
anticipate many opportunities to reduce production costs over time, there can
be
no assurance that these cost reduction plans will be successful nor is there
any
assurance that our costs can be reduced as quickly as any reduction in unit
prices. We may also attempt to offset the anticipated decrease in our average
selling price by introducing new products, increasing our sales volumes or
adjusting our product mix. If we fail to do so, our results of operations would
be materially and adversely affected.
RISKS
RELATED TO OUR BUSINESS
OUR
SUCCESS DEPENDS ON ATTRACTING AND RETAINING HIGHLY SKILLED AND QUALIFIED
TECHNICAL AND CONSULTING PERSONNEL.
We
must
hire highly skilled technical personnel as employees and as independent
contractors in order to develop our products. The competition for skilled
technical employees is intense and we may not be able to retain or recruit
such
personnel. We must compete with companies that possess greater financial and
other resources than we do, and that may be more attractive to potential
employees and contractors. To be competitive, we may have to increase the
compensation, bonuses, stock options and other fringe benefits offered to
employees in order to attract and retain such personnel. The costs of retaining
or attracting new personnel may have a materially adverse affect on our business
and our operating results. In addition, difficulties in hiring and retaining
technical personnel could delay the implementation of our business plan.
OUR
SUCCESS DEPENDS IN A LARGE PART ON THE CONTINUING SERVICE OF KEY PERSONNEL.
Changes
in management could have an adverse effect on our business. We are dependent
upon the active participation of several key management personnel, including
Gary W. Jones, our chief executive officer. We will also need to recruit
additional management in order to expand according to our business plan. The
failure to attract and retain additional management or personnel could have
a
material adverse effect on our operating results and financial performance.
OUR
BUSINESS DEPENDS ON NEW PRODUCTS AND TECHNOLOGIES.
The
market for our products is characterized by rapid changes in product, design
and
manufacturing process technologies. Our success depends to a large extent on
our
ability to develop and manufacture new products and technologies to match the
varying requirements of different customers in order to establish a competitive
position and become profitable. Furthermore, we must adopt our products and
processes to technological changes and emerging industry standards and practices
on a cost-effective and timely basis. Our failure to accomplish any of the
above
could harm our business and operating results.
WE
GENERALLY DO NOT HAVE LONG-TERM CONTRACTS WITH OUR CUSTOMERS.
Our
business has primarily operated on the basis of short-term purchase orders.
We
are now receiving longer term purchase agreements, such as those which comprise
our $28 million backlog, and procurement contracts, but we cannot guarantee
that
we will continue to do so. Our current purchase agreements can be cancelled
or
revised without penalty, depending on the circumstances. We plan production
on
the basis of internally generated forecasts of demand, which makes it difficult
to accurately forecast revenues. If we fail to accurately forecast operating
results, our business may suffer and the value of your investment in the Company
may decline.
OUR
BUSINESS STRATEGY MAY FAIL IF WE CANNOT CONTINUE TO FORM STRATEGIC RELATIONSHIPS
WITH COMPANIES THAT MANUFACTURE AND USE PRODUCTS THAT COULD INCORPORATE OUR
OLED-ON-SILICON TECHNOLOGY.
Our
prospects will be significantly affected by our ability to develop strategic
alliances with OEMs for incorporation of our OLED-on-silicon technology into
their products. While we intend to continue to establish strategic relationships
with manufacturers of electronic consumer products, personal computers,
chipmakers, lens makers, equipment makers, material suppliers and/or systems
assemblers, there is no assurance that we will be able to continue to establish
and maintain strategic relationships on commercially acceptable terms, or that
the alliances we do enter in to will realize their objectives. Failure to do
so
would have a material adverse effect on our business.
OUR
BUSINESS DEPENDS TO SOME EXTENT ON INTERNATIONAL TRANSACTIONS.
We
purchase needed materials from companies located abroad and may be adversely
affected by political and currency risk, as well as the additional costs of
doing business with a foreign entity. Some customers in other countries have
longer receivable periods or warranty periods. In addition, many of the OEMs
that are the most likely long-term purchasers of our microdisplays are located
abroad exposing us to additional political and currency risk. We may find it
necessary to locate manufacturing facilities abroad to be closer to our
customers which could expose us to various risks, including management of a
multi-national organization, the complexities of complying with foreign laws
and
customs, political instability and the complexities of taxation in multiple
jurisdictions.
OUR
BUSINESS MAY EXPOSE US TO PRODUCT LIABILITY CLAIMS.
Our
business may expose us to potential product liability claims. Although no such
claims have been brought against us to date, and to our knowledge no such claim
is threatened or likely, we may face liability to product users for damages
resulting from the faulty design or manufacture of our products. While we plan
to maintain product liability insurance coverage, there can be no assurance
that
product liability claims will not exceed coverage limits, fall outside the
scope
of such coverage, or that such insurance will continue to be available at
commercially reasonable rates, if at all.
OUR
BUSINESS IS SUBJECT TO ENVIRONMENTAL REGULATIONS AND POSSIBLE LIABILITY ARISING
FROM POTENTIAL EMPLOYEE CLAIMS OF EXPOSURE TO HARMFUL SUBSTANCES USED IN THE
DEVELOPMENT AND MANUFACTURE OF OUR PRODUCTS.
We
are
subject to various governmental regulations related to toxic, volatile,
experimental and other hazardous chemicals used in our design and manufacturing
process. Our failure to comply with these regulations could result in the
imposition of fines or in the suspension or cessation of our operations.
Compliance with these regulations could require us to acquire costly equipment
or to incur other significant expenses. We develop, evaluate and utilize new
chemical compounds in the manufacture of our products. While we attempt to
ensure that our employees are protected from exposure to hazardous materials,
we
cannot assure you that potentially harmful exposure will not occur or that
we
will not be liable to employees as a result.
RISKS
RELATED TO OUR STOCK
THE
SUBSTANTIAL NUMBER OF SHARES THAT ARE OR WILL BE ELIGIBLE FOR SALE COULD CAUSE
OUR COMMON STOCK PRICE TO DECLINE EVEN IF THE COMPANY IS SUCCESSFUL.
Sales
of
significant amounts of common stock in the public market, or the perception
that
such sales may occur, could materially affect the market price of our common
stock. These sales might also make it more difficult for us to sell equity
or
equity-related securities in the future at a time and price that we deem
appropriate. As of May 12, 2006, we have outstanding (i) options to purchase
18,474,036 shares; and (ii) warrants to purchase 19,354,471 shares of common
stock.
WE
HAVE A STAGGERED BOARD OF DIRECTORS AND OTHER ANTI-TAKEOVER PROVISIONS, WHICH
COULD INHIBIT POTENTIAL INVESTORS OR DELAY OR PREVENT A CHANGE OF CONTROL THAT
MAY FAVOR YOU.
Our
Board
of Directors is divided into three classes and our Board members are elected
for
terms that are staggered. This could discourage the efforts by others to obtain
control of the company. Some of the provisions of our certificate of
incorporation, our bylaws and Delaware law could, together or separately,
discourage potential acquisition proposals or delay or prevent a change in
control. In particular, our board of directors is authorized to issue up to
10,000,000 shares of preferred stock (less any outstanding shares of preferred
stock) with rights and privileges that might be senior to our common stock,
without the consent of the holders of the common stock.
FORWARD-LOOKING
STATEMENTS
The
Private Securities Litigation Reform Act of 1995 (the "Act") provides a safe
harbor for forward-looking statements made by us or on our behalf. We and our
representatives may from time to time make written or oral statements that
are
"forward-looking," including statements contained in this prospectus and other
filings with the Securities and Exchange Commission, reports to our stockholders
and news releases. All statements that express expectations, estimates,
forecasts or projections are forward-looking statements within the meaning
of
the Act. In addition, other written or oral statements which constitute
forward-looking statements may be made by us or on our behalf. Words such as
"expects," "anticipates," "intends," "plans," "believes," "seeks," "estimates,"
"projects," "forecasts," "may," "should," variations of such words and similar
expressions are intended to identify such forward-looking statements. These
statements are not guarantees of future performance and involve risks,
uncertainties and assumptions which are difficult to predict. Therefore, actual
outcomes and results may differ materially from what is expressed or forecasted
in or suggested by such forward-looking statements. We undertake no obligation
to update publicly any forward-looking statements, whether as a result of new
information, future events or otherwise.
This
Registration Statement is being filed in accordance with the requirements
of
Form S-8 in order to register shares issuable under various plans that were
approved by shareholders at the Company's Annual Meetings of
Shareholders.
The
table
below sets forth information concerning the resale of the shares of common
stock
by the selling stockholders. We will not receive any proceeds from the resale
of
the common stock by the selling stockholders. We will receive proceeds from
the
exercise of the options.
The
following table also sets forth the name of each person who is offering the
resale of shares of common stock by this prospectus, the number of shares of
common stock beneficially owned by each person, the number of shares of common
stock that may be sold in this offering and the number of shares of common
stock
each person will own after the offering, assuming they sell all of the shares
offered which they beneficially own as of the date hereof.
| |
|
Shares
Beneficially Owned
Prior
to the Offering (1)
|
|
|
|
Shares
Beneficially Owned
After
the Offering (1)
|
|
|
Name
|
|
Number
|
|
Percent
(2)
|
|
Total
Shares
Offered
|
|
Number
|
|
Percent
(2)
|
|
|
Gary
W Jones
|
|
|
9,451,956
|
|
|
9.4%
|
|
|
530,000
(3
|
)
|
|
8,921,956
|
|
|
8.9%
|
|
|
Susan
Jones
|
|
|
9,451,956
|
|
|
9.4%
|
|
|
630,000
(3
|
)
|
|
8,821,956
|
|
|
8.9%
|
|
|
Paul
Cronson
|
|
|
507,657
|
|
|
*
|
|
|
60,000
(3
|
)
|
|
447,657
|
|
|
*
|
|
|
Claude
Charles
|
|
|
315,000
|
|
|
*
|
|
|
75,000
(3
|
)
|
|
240,000
|
|
|
*
|
|
|
John
Atherly
|
|
|
229,160
|
|
|
*
|
|
|
1,180,000
(4
|
)
|
|
229,160
|
|
|
*
|
|
|
Jack
Goldman
|
|
|
107,500
|
|
|
*
|
|
|
77,500
(3
|
)
|
|
107,500
|
|
|
*
|
|
|
Adm
Thomas Paulsen
|
|
|
85,000
|
|
|
*
|
|
|
87,500
(3
|
)
|
|
85,000
|
|
|
*
|
|
|
Dr
Jill Wittels
|
|
|
85,000
|
|
|
*
|
|
|
70,000
(3
|
)
|
|
15,000
|
|
|
*
|
|
|
Irwin
Engleman
|
|
|
-
|
|
|
*
|
|
|
127,500
(3
|
)
|
|
-
|
|
|
*
|
|
|
Brig.
Gen. Stephen Seay
|
|
|
-
|
|
|
*
|
|
|
60,000
(3
|
)
|
|
-
|
|
|
*
|
|
*
Less
than one percent.
| (1) |
The
number and percentage of shares beneficially owned is determined
in
accordance with Rule 13d-3 of the Securities Exchange Act of 1934,
and the information is not necessarily indicative of beneficial ownership
for any other purpose. Under such rule, beneficial ownership includes
any
shares as to which the selling stockholder has sole or shared voting
power
or investment power and also any shares, which the selling stockholder
has
the right to acquire within 60 days.
|
| (2) |
Based
upon 100,104,944shares of common stock issued and outstanding as
of May
12, 2006.
|
| (3) |
Includes
shares of our common stock to be issued under our 2003 Employee Stock
Option Plan.
|
| (4) |
Includes
(i) 430,000 shares of our common stock to be issued under our 2003
Employee Stock Option Plan, and (ii) 750,000 shares of our common
stock
underlying options issued outside of any
plan.
|
Sales
of
the shares may be effected by or for the account of the selling stockholders
from time to time in transactions (which may include block transactions) on
the
American Stock Exchange, in negotiated transactions, through a combination
of
such methods of sale, or otherwise, at fixed prices that may be changed, at
market prices prevailing at the time of sale or at negotiated prices. The
selling stockholders may effect such transactions by selling the shares directly
to purchasers, through broker-dealers acting as agents of the selling
stockholders, or to broker-dealers acting as agents for the selling
stockholders, or to broker-dealers who may purchase shares as principals and
thereafter sell the shares from time to time in transactions (which may include
block transactions) on the American Stock Exchange, in negotiated transactions,
through a combination of such methods of sale, or otherwise. In effecting sales,
broker-dealers engaged by a selling stockholder may arrange for other
broker-dealers to participate. Such broker-dealers, if any, may receive
compensation in the form of discounts, concessions or commissions from the
selling stockholders and/or the purchasers of the shares for whom such
broker-dealers may act as agents or to whom they may sell as principals, or
both
(which compensation as to a particular broker-dealer might be in excess of
customary commissions).
The
selling stockholders and any broker-dealers or agents that participate with
the
selling stockholders in the distribution of the shares may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933. Any commissions
paid or any discounts or concessions allowed to any such persons, and any
profits received on the resale of the shares purchased by them may be deemed
to
be underwriting commissions or discounts under the Securities Act of
1933.
We
have
agreed to bear all expenses of registration of the shares other than legal
fees
and expenses, if any, of counsel or other advisors of the selling stockholders.
The selling stockholders will bear any commissions, discounts, concessions
or
other fees, if any, payable to broker-dealers in connection with any sale of
their shares.
We
have
agreed to indemnify the selling stockholders, or their transferees or assignees,
against certain liabilities, including liabilities under the Securities Act
of
1933 or to contribute to payments the selling stockholders or their respective
pledgees, donees, transferees or other successors in interest, may be required
to make in respect thereof.
The
validity of the shares of common stock offered hereby will be passed upon for
us
by Sichenzia Ross Friedman Ference LLP, 1065 Avenue of the Americas,
21st
Floor,
New York, NY 10018. Certain members or partners of Sichenzia Ross Friedman
Ference LLP will receive shares of common stock under our 2004 Non-Employee
Stock Compensation Plan.
Eisner
LLP, Independent Registered Public Accountants, have audited, as set forth
in
their report thereon incorporated by reference herein, our financial
statements as of December 31, 2005 and for the years ended December 31,
2005 and 2004. The financial statements referred to above are incorporated
by
reference in this prospectus with reliance upon the auditors' opinion based
on
their expertise in accounting and auditing.
INFORMATION
INCORPORATED BY REFERENCE
The
Securities and Exchange Commission allows us to incorporate by reference certain
of our publicly-filed documents into this prospectus, which means that such
information is considered part of this prospectus. Information that we file
with
the SEC subsequent to the date of this prospectus will automatically update
and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under all documents subsequently
filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until the selling stockholders have sold all of the shares
offered hereby or such shares have been deregistered.
The
following documents filed with the SEC are incorporated herein by reference:
| · |
Reference
is made to the Registrant’s annual report on Form 10-K for the period
ending December 31, 2005, as filed with the SEC on April 17, 2006,
which
is hereby incorporated by
reference.
|
| · |
Reference
is made to the Registrant’s quarterly report on Form 10-Q for the period
ending March 31, 2006, as filed with the SEC on May 15, 2006, which
is
hereby incorporated by reference.
|
| · |
Reference
is made to the Registrant’s quarterly report on Form 10-Q for the period
ending September 30, 2005, as filed with the SEC on November 14,
2005,
which is hereby incorporated by
reference.
|
| · |
Reference
is made to the Registrant’s quarterly report on Form 10-Q/A for the period
ending June 30, 2005, as filed with the SEC on November 3, 2005,
which is
hereby incorporated by reference.
|
| · |
Reference
is made to Registrant's 8-Ks filed with the SEC on May 9, 2005, August
2,
2005, October 21, 2005, October 28, 2005, November 14, 2005, January
27,
2006, February 1, 2006, March 28, 2006 and May 15, 2006, each of
which are
hereby incorporated by reference.
|
| · |
Reference
is made to the description of the Registrant's common stock as contained
in Item 1 of its Registration Statement on Form 8-A, filed with the
Commission on March 16, 2000, including all amendments and reports
filed
with the Commission for the purpose of updating such description,
which is
hereby incorporated by reference.
|
We
will
provide without charge to each person to whom a copy of this prospectus has
been
delivered, on written or oral request a copy of any or all of the documents
incorporated by reference in this prospectus, other than exhibits to such
documents. Written or oral requests for such copies should be directed to Gary
W. Jones.
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION FOR
SECURITIES ACT LIABILITIES
Our
Articles of Incorporation, as amended and restated, provide to the fullest
extent permitted by Section 145 of the General Corporation Law of the State
of
Delaware, that our directors or officers shall not be personally liable to
us or
our shareholders for damages for breach of such director's or officer's
fiduciary duty. The effect of this provision of our Articles of Incorporation,
as amended and restated, is to eliminate our rights and our shareholders
(through shareholders' derivative suits on behalf of our company) to recover
damages against a director or officer for breach of the fiduciary duty of care
as a director or officer (including breaches resulting from negligent or grossly
negligent behavior), except under certain situations defined by statute. We
believe that the indemnification provisions in our Articles of Incorporation,
as
amended, are necessary to attract and retain qualified persons as directors
and
officers.
Our
By
Laws also provide that the Board of Directors may also authorize us to indemnify
our employees or agents, and to advance the reasonable expenses of such persons,
to the same extent, following the same determinations and upon the same
conditions as are required for the indemnification of and advancement of
expenses to our directors and officers. As of the date of this Registration
Statement, the Board of Directors has not extended indemnification rights to
persons other than directors and officers.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers or persons controlling us pursuant to the
foregoing provisions, or otherwise, we have been advised that in the opinion
of
the Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable.
This
prospectus is part of a Registration Statement on Form S-8 that we filed with
the SEC. Certain information in the Registration Statement has been omitted
from
this prospectus in accordance with the rules of the SEC. We file annual,
quarterly and special reports, proxy statements and other information with
the
SEC. You can inspect and copy the Registration Statement as well as reports,
proxy statements and other information we have filed with the SEC at the public
reference room maintained by the SEC at 100 F Street N.E. Washington, D.C.
20549, You can obtain copies from the public reference room of the SEC at 100
F
Street N.E. Washington, D.C. 20549, upon payment of certain fees. You can call
the SEC at 1-800-732-0330 for further information about the public reference
room. We are also required to file electronic versions of these documents with
the SEC, which may be accessed through the SEC's World Wide Web site at
http://www.sec.gov. No dealer, salesperson or other person is authorized to
give
any information or to make any representations other than those contained in
this prospectus, and, if given or made, such information or representations
must
not be relied upon as having been authorized by us. This prospectus does not
constitute an offer to buy any security other than the securities offered by
this prospectus, or an offer to sell or a solicitation of an offer to buy any
securities by any person in any jurisdiction where such offer or solicitation
is
not authorized or is unlawful. Neither delivery of this prospectus nor any
sale
hereunder shall, under any circumstances, create any implication that there
has
been no change in the affairs of our company since the date
hereof.
EMAGIN
CORPORATION
2,897,500
SHARES OF COMMON STOCK
PROSPECTUS
May
26,
2006
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:
| · |
Reference
is made to the Registrant’s annual report on Form 10-K for the period
ending December 31, 2005, as filed with the SEC on April 17, 2006,
which
is hereby incorporated by
reference.
|
| ·
|
Reference
is made to the Registrant’s quarterly report on Form 10-Q for the period
ending March 31, 2006, as filed with the SEC on May 15, 2006, which
is
hereby incorporated by reference.
|
| ·
|
Reference
is made to the Registrant’s quarterly report on Form 10-Q for the period
ending September 30, 2005, as filed with the SEC on November 14,
2005,
which is hereby incorporated by
reference.
|
| ·
|
Reference
is made to the Registrant’s quarterly report on Form 10-Q/A for the period
ending June 30, 2005, as filed with the SEC on November 3, 2005,
which is
hereby incorporated by reference.
|
| · |
Reference
is made to Registrant's 8-Ks filed with the SEC on May 9, 2005, August
2,
2005, October 21, 2005, October 28, 2005, November 14, 2005, January
27,
2006, February 1, 2006, March 28, 2006 and May 15, 2006, each of
which are
hereby incorporated by reference.
|
| · |
Reference
is made to the description of the Registrant's common stock as contained
in Item 1 of its Registration Statement on Form 8-A, filed with the
Commission on March 16, 2000, including all amendments and reports
filed
with the Commission for the purpose of updating such description,
which is
hereby incorporated by reference.
|
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. Certain members or partners of Sichenzia Ross Friedman
Ference LLP will receive shares of common stock under our 2004 Non-Employee
Stock Compensation Plan.
Item
6. Indemnification of Directors and Officers.
Our
Articles of Incorporation, as amended and restated, provide to the fullest
extent permitted by Section 145 of the General Corporation Law of the State
of
Delaware, that our directors or officers shall not be personally liable to
us or
our shareholders for damages for breach of such director's or officer's
fiduciary duty. The effect of this provision of our Articles of Incorporation,
as amended and restated, is to eliminate our rights and our shareholders
(through shareholders' derivative suits on behalf of our company) to recover
damages against a director or officer for breach of the fiduciary duty of care
as a director or officer (including breaches resulting from negligent or grossly
negligent behavior), except under certain situations defined by statute. We
believe that the indemnification provisions in our Articles of Incorporation,
as
amended, are necessary to attract and retain qualified persons as directors
and
officers.
Our
By
Laws also provide that the Board of Directors may also authorize us to indemnify
our employees or agents, and to advance the reasonable expenses of such persons,
to the same extent, following the same determinations and upon the same
conditions as are required for the indemnification of and advancement of
expenses to our directors and officers. As of the date of this Registration
Statement, the Board of Directors has not extended indemnification rights to
persons other than directors and officers.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers or persons controlling us pursuant to the
foregoing provisions, or otherwise, we have been advised that in the opinion
of
the Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
| 4.1
|
2005
Employee Stock Purchase Plan (1)
|
| 4.2 |
2004
Non-Employee Stock Compensation Plan
(1)
|
| 4.3 |
Amended
and Restated 2003 Stock Option Plan (1)
|
| 23.1 |
Consent of Sichenzia Ross Friedman Ference LLP
is
contained in Exhibit 5.1. |
______________________________________________________________________________________________________________________________
(1)
Incorporated by reference to the Registrant’s Definitive Proxy Statement on
Schedule 14A filed with the Securities and Exchange Commission on September
1, 2005.
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. 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;
(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;
Provided,
however,
that
paragraphs (1)(i), and (1)(ii) do not apply if
the
Registration Statement is on Form S-8 and if
the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission
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 from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) 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 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.
(5) That,
for the purpose of determining liability under the Securities Act of 1933 to
any
purchaser:
(A) Each
prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be deemed
to be part of the registration statement as of the date the filed prospectus
was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required by Section 10(a)
of the Securities Act of 1933 shall be deemed to be part of and included in
the
registration statement as of the earlier of the date such form of prospectus
is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration
statement to which the prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering
thereof. Provided,
however,
that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of
the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made
in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(6)
That,
for the purpose of determining liability of a Registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities,
each
undersigned Registrant undertakes that in a primary offering of securities
of an
undersigned Registrant pursuant to this registration statement, regardless
of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of an undersigned Registrant relating
to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of
an
undersigned Registrant or used or referred to by an undersigned Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about an undersigned Registrant or its securities provided
by or on behalf of an undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by an undersigned
Registrant to the purchaser.
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 Securities 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
In
accordance with 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 Form
S-8 to be signed on its behalf by the undersigned, thereunto duly authorized,
in
the City
of
Bellevue, State of Washington,
on May
26, 2006.
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EMAGIN
CORPORATION
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| |
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By:
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/s/
Gary W. Jones
Gary
W. Jones,
Chief
Executive Officer, President (Principal Executive
Officer)
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By:
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/s/
John Atherly
John
Atherly,
Chief
Financial Officer (Principal Financial and Accounting
Officer)
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In
accordance with the requirements of the Securities Act of 1933, as amended,
this
Form S-8 has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
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Signature
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Title
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|
Date
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/s/
Gary W. Jones
Gary
W. Jones
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Chief
Executive Officer, President and Chairman (Principal Executive Officer)
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May
26, 2006
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/s/
John Atherly
John
Atherly
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Chief
Financial Officer
(Principal
Financial and Accounting Officer)
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May
26, 2006
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/s/
Claude Charles
Claude
Charles
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Director
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May
26, 2006
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/s/
Jacob E. Goldman
Dr.
Jacob E. Goldman
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Director
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May
26, 2006
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/s/
Paul Cronson
Paul
Cronson
|
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Director
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May
26, 2006
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/s/
Jill Wittels
Dr.
Jill Wittels
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Director
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May
26, 2006
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/s/
Thomas Paulsen
Rear
Adm. Thomas Paulsen
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Director
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May
26, 2006
|
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/s/
Stephen Seay
Brig.
Gen. (ret) Stephen Seay
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Director
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May
26, 2006
|
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/s/
Irwin Engelman
Irwin Engelman
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Director
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May
26, 2006
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| 4.1
|
2005
Employee Stock Purchase Plan (1)
|
| 4.2 |
2004
Non-Employee Stock Compensation Plan
(1)
|
| 4.3 |
Amended
and Restated 2003 Stock Option Plan (1)
|
| 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. |
______________________________________________________________________________________________________________________________
(1)
Incorporated by reference to the Registrant’s Definitive Proxy Statement on
Schedule 14A filed with the Securities and Exchange Commission on September
1,
2005.