UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington
, D.C.
20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FOCUS
ENHANCEMENTS,
INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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04-3144936
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(State
or Other Jurisdiction of Incorporation or Organization)
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(IRS
Employer Identification No.)
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FOCUS
ENHANCEMENTS, INC.
AMENDED
2004 STOCK INCENTIVE PLAN
(Full
title of the plan)
1370 Dell
Avenue
Campbell,
California 95008
(408)
866-8300
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Brett A.
Moyer
President
and Chief Executive Officer
FOCUS
ENHANCEMENTS, INC.
1370 Dell
Avenue
Campbell,
California 95008
(408)
866-8300
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copy
to:
Jerrold
F. Petruzzelli, Esq.
Manatt
Phelps & Phillips, LLP
1001 Page
Mill Road, Bldg. 2
Palo
Alto, CA 94304
(650)
812-1300
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting
company. See the definitions of “accelerated filer and large
accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act. Large accelerated filer:
¨
Accelerated
filer:
¨
Non-accelerated
filer:
¨
smaller
reporting company:
x
CALCULATION
OF REGISTRATION FEE
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Title
of Securities to
Be
Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering
Price Per
Share(2)
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Proposed
Maximum
Aggregate
Offering
Price(2)
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Amount
of
Registration
Fee
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Common
Stock
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1,000,000
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$
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0.38
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$
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380,000.00
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$
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14.93
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(1)
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These shares are reserved for
issuance pursuant to Focus Enhancements, Inc.’s Amended 2004 Stock
Incentive Plan (the “Plan”). Pursuant to Rule 416, also being registered
are additional shares of common stock as may become issuable under the
Plan through the operation of anti-dilution
provisions.
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(2)
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Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(h) and based upon the average of the bid and asked prices of the
common stock of Focus Enhancements, Inc. in the consolidated reporting
system of the NASDAQ Capital Market on May 19, 2008 of
$0.38.
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PART
II.
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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Item
3.
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INCORPORATION
OF DOCUMENTS BY REFERENCE
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Pursuant
to General Instruction E of Form S-8, this Registration Statement covers
additional securities registered for issuance under the Focus Enhancements, Inc.
Amended 2004 Stock Incentive Plan. The contents of prior Registration
Statement on Form S-8 of Focus Enhancements, Inc. relating to such plan,
(333-123593) is incorporated herein by reference.
The
following documents filed by Focus Enhancements, Inc. (the “Registrant”) with
the Securities and Exchange Commission (the “Commission”) are incorporated in
this Registration Statement by reference (File No. 001-11860):
(a)
The
Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31,
2007, including all material incorporated by reference therein, filed on March
28, 2008 and the Amendment No. 1 to the Registrant’s Annual Report on Form
10-K/A filed on April 29, 2008, pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(b)
All other
reports filed by the Registrant pursuant to Section 13(a) or 14(d) of the
Exchange Act since the end of the fiscal year covered by the document referred
to in (a) above.
(c)
The
description of the class of securities offered hereby which is contained in a
Registration Statement on Form 8-A dated April 5, 1993 setting forth a
description of the Registrant’s common stock filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
descriptions.
All other
documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of this Registration Statement and
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 in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Any
statement made 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 is also incorporated or 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.
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Item
4.
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DESCRIPTION
OF SECURITIES
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Not Applicable.
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Item
5.
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INTERESTS
OF NAMED EXPERTS AND COUNSEL
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Not Applicable.
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Item
6.
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INDEMNIFICATION
OF DIRECTORS AND OFFICERS
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The
following summary is qualified in its entirety by reference to the Delaware
General Corporation Law as well as the organizational documents of the
Registrant and the Registrant’s indemnification agreements.
Section
145 of the Delaware General Corporation Law authorizes a court to award, or
permits a Delaware corporation to grant, indemnity to present or former
directors and officers, as well as certain other persons serving at the request
of the corporation in related capacities. This permitted indemnity is
sufficiently broad to permit indemnification for liabilities arising under the
Securities Act of 1933, as amended (the “Securities Act”), including
reimbursement for expenses incurred.
The
indemnification authorized under Delaware law is not exclusive and is in
addition to any other rights granted to officers and directors under the Second
Restated Certificate of Incorporation, as amended, or Restated Bylaws of the
corporation or any agreement between officers and directors and the corporation.
The Registrant’s Second Restated Certificate of Incorporation provides for the
indemnification of directors, former directors and officers to the maximum
extent permitted by Delaware law. The Registrant’s Second Restated
Certificate of Incorporation also provides that it may purchase and maintain
insurance on behalf of a director or officer against liability asserted against
the director or officer in such capacity.
The
Registrant has also entered into indemnification agreements with each of its
directors and with certain officers (each director and officer, an “indemnitee”)
to provide indemnification for each indemnitee to the fullest extent now or
hereafter permitted by Delaware law unless such indemnification is not permitted
under applicable law.
Insofar
as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable.
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Item
7.
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EXEMPTION
FROM REGISTRATION CLAIMED
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Not Applicable.
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Exhibit No.
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Exhibit
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5.1
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Opinion
of Manatt, Phelps & Phillips, LLP.
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10.1
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Focus
Enhancements, Inc. Amended 2004 Stock Incentive Plan (
Filed as an exhibit to Company’s
Form 8-K filed with the Commission on December 28, 2007, and incorporated
herein by reference.)
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23.1
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Consent
of Burr, Pilger & Mayer LLP.
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23.2
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Consent
of Manatt, Phelps & Phillips (included in Exhibit
5.1).
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24.1
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A
power of attorney is set forth on the signature page of the Registration
Statement.
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(a) The
Registrant hereby undertakes:
(1) To
file, during any period in which offers 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;
(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 greater than a 20%
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
(a)(1)(i) and (a)(1)(ii) herein do 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 undersigned registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement;
(2) That,
for the purposes of determining any liability under the Securities 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
Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Registrant’s annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to Section 15(d) of
the Exchange Act) 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 may be
permitted to the 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 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 Securities Act and will be governed by final
adjudication of such issue.
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 of filing of 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 Campbell, State of California on May 22,
2008.
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FOCUS
ENHANCEMENTS, INC.
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/s/ Brett A.
Moyer
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Brett A.
Moyer
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President
and Chief Executive Officer
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POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Brett Moyer and Gary L. Williams, and each of them, his
or her true and lawful attorneys-in-fact and agents, each acting alone, with
full powers of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any or all amendments
to this Registration Statement (including any post-effective amendments
thereto), and to file the same with all exhibits thereto, and all other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents 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 he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
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/s/ Brett A. Moyer
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President
and Chief Executive Officer
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May
22, 2008
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Brett A.
Moyer
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(Principal
Executive Officer)
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/s/ Gary L. Williams
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Executive
Vice President of Finance and
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May
22, 2008
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Gary
L. Williams
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Chief
Financial Officer (Principal Financial and Accounting
Officer)
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/s/ N. William Jasper, Jr.
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Chairman
of the Board
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May
22, 2008
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N.
William Jasper, Jr.
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Director
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Carl
E. Berg
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/s/ William B. Coldrick
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Director
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May
22, 2008
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William
B. Coldrick
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Director
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Michael
D’Addio
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/s/ Tommy Eng
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Director
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May
22, 2008
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Tommy
Eng
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Director
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Sam
Runco
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EXHIBIT
INDEX
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Exhibit No.
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Exhibit
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Opinion
of Manatt, Phelps & Phillips, LLP
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10.1
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Focus
Enhancements, Inc. Amended 2004 Stock Incentive Plan. (
Filed as an exhibit to Focus’
Form 8-K filed with the Commission on December 28, 2007, and incorporated
herein by reference
)
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Consent
of Burr, Pilger & Mayer LLP.
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23.2
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Consent
of Manatt, Phelps & Phillips (included in Exhibit
5.1).
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24.1
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A
power of attorney is set forth on the signature page of the Registration
Statement.
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