As
filed with the Securities and Exchange Commission on September 26,
2007
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
IMAGENETIX,
INC.
(Exact
name of registrant as specified in its charter)
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Nevada
(State
or other jurisdiction of
incorporation
or organization)
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87-0463772
(IRS
Employer
Identification
Number)
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10845
Rancho Bernardo Road, Suite 105, San Diego, California
92127
(Address
of principal executive offices, including zip code)
2000
STOCK OPTION PLAN OF IMAGENETIX, INC.
(Full
title of the plan)
Lowell
Giffhorn, Chief Financial Officer
10845
Rancho Bernardo Road, Suite 105, San Diego, California 92127
(Name
and address of agent for service)
(858)
674-8455
(Telephone
number, including area code, of agent for service)
Copy
to:
Gary
A. Agron, Esq.
5445
DTC Parkway, Suite 520
Greenwood
Village, CO 80111
(303)
770-7254
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
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Amount of
registration fee
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Common
Stock, $0.001 par value
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1,479,000 shares
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(3)
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$
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1.04
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$
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1,538,160
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$
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47.22
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21,000 shares
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(4)
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$
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1.04
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$
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21,840
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$
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.67
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Total
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1,500,000 shares
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$
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1,560,000
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$
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47.89
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(1)
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In
accordance with Rule 416(c) of the Securities Act of 1933, there also
are being registered such indeterminate number of additional shares
of
Common Stock as may become issuable pursuant to anti-dilution provisions
of the 2000 Stock Option Plan (the “Plan”).
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(2)
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Since
the option exercise price of these shares is not known, the proposed
maximum offering price per share and maximum aggregate offering price
are
calculated in accordance with Rule 457(c) and Rule 457(h) under
the Securities Act of 1933 based upon a price of $1.04, which is
the
average of the high and low prices of the Common Stock reported on
the OTC
Bulletin Board on September 12, 2007.
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(3)
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Represents
the aggregate number of options to purchase the Registrant’s Common Stock
granted to certain employees, consultants and
directors.
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(4)
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Represents
the remaining number of shares of Common Stock of the Registrant
available
for issuance under the Plan.
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INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant
to the requirements of the Note to Part I of Form S-8 and Rule
428(b)(1)
of the Rules under the Securities Act of 1933, as amended, the information
required by Part I of Form S-8 is included in the resale prospectus which
follows. The resale prospectus together with the documents incorporated by
reference pursuant to Item 3 of Part II of this Registration Statement
constitute the Section 10(a) prospectus.
RESALE
PROSPECTUS
The
material which follows, up to but not including the page beginning Part II
of
this Registration Statement, constitutes a prospectus, prepared on Form S-3,
in
accordance with General Instruction C to Form S-8, to be used in connection
with
resales of securities acquired under the Registrant’s Stock Option Plan by
officers or directors of the Registrant, as defined in Rule 405 under the
Securities Act of 1933, as amended.
RESALE
PROSPECTUS
1,500,000
SHARES OF
COMMON
STOCK
Imagenetix,
Inc.
2000
STOCK
O
PTION
PLAN
You
should read this prospectus carefully before investing. We are offering on
behalf of certain of our employees, officers, directors and consultants up
to
1,500,000 shares of our $.001 par value common stock purchasable by such
employees, officers, directors and consultants pursuant to common stock options
granted under our 2000 Stock Option Plan. As of this date 1,479,000 options
issued under the Plan are outstanding.
This
prospectus will be used by our non-affiliates as well as persons who are
“affiliates” to resell the shares. We will not receive any part of the proceeds
of such sales although we will receive the exercise price for the stock options.
Please see “Selling Stockholders” for a list of our affiliates who may offer
their shares for sale. We refer to these individuals as “selling
stockholders.”
The
selling stockholders may offer their common stock through public or private
transactions, at prevailing market prices or at privately negotiated prices.
These future market prices are not currently known.
Our
common stock is traded on the over-the-counter Electronic Bulletin Board under
the symbol “IAGX.” On September 20, 2007, the last reported sale price for the
common stock on the Electronic Bulletin Board was $1.01 per share.
See
“Risk
Factors” beginning on page 6 to read about factors you should consider before
buying shares of our common stock.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION
HAS
APPROVED OR DISAPPROVED OF THE SECURITIES OR PASSED UPON THE ACCURACY OR
ADEQUACY OF THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
No
person
is authorized to give any information or to make any representation regarding
the securities we are offering and investors should not rely on any such
information. The information provided in the prospectus is as of this date
only.
The
date
of this prospectus is September 26, 2007.
AVAILABLE
INFORMATION
We
are
subject to the informational requirements of the Securities Exchange Act of
1934, as amended, including Sections 14(a) and 14(c) relating to proxy and
information statements, and in accordance therewith we file reports and other
information with the Securities and Exchange Commission. Reports and other
information which we file can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street N.W., Washington,
D.C. 20549. Copies of such material can be obtained from the Public Reference
Section of the Commission, 450 Fifth Street N.W., Washington, D.C. 20549 at
prescribed rates. Our Common Stock is traded on the over-the-counter Electronic
Bulletin Board under the symbol “IAGX.” Reports, proxy and information
statements may also be inspected at the Commission’s Web site at
www.sec.gov.
We
furnish annual reports to our shareholders which include audited financial
statements. We may furnish such other reports as may be authorized, from time
to
time, by our Board of Directors.
You
may
also want to refer to our Web site at imagenetix.net. Our Web site is not a
part
of this prospectus.
INCORPORATION
BY REFERENCE
Certain
documents have been incorporated by reference into this prospectus, either
in
whole or in part, including but no limited to an Annual Report on Form 10-KSB
for the year ended March 31, 2007, Quarterly Report on Form 10-QSB for the
quarter ended June 30, 2007 and any Current Reports on Form 8-K filed after
April 1, 2007. We will provide without charge (1) to each person to whom a
prospectus is delivered, upon written or oral request, a copy of any and all
of
the information that has been incorporated by reference (not including exhibits
to the information unless such exhibits are specifically incorporated by
reference into the information), and (2) documents and information required
to
be delivered to directors pursuant to Rule 428(b). Requests for any information
shall be addressed to us at 10845 Rancho Bernardo Road, Suite 105, San Diego,
CA
92127, telephone (858) 674-8455.
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INTRODUCTION
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6
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RISK
FACTORS
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6
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SELLING
STOCKHOLDERS
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10
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PLAN
OF DISTRIBUTION
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11
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SEC
POSITION REGARDING INDEMNIFICATION
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12
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DESCRIPTION
OF THE PLAN
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13
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APPLICABLE
SECURITIES LAW RESTRICTIONS
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14
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TAX
CONSEQUENCES
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14
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LEGAL
MATTERS
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14
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EXPERTS
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14
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INTRODUCTION
Since
1999, Imagenetix, Inc. has developed, formulated and marketed over-the-counter,
natural-based nutritional supplements and skin care products. Our products
are
proprietary, often supported by scientific studies which we request and are
offered through multiple channels of distribution, including direct marketing
companies, also known as network marketing or multi-level marketing companies,
and chain store retailers. Our primary product is Celadrin® a product
formulation which we sell to the mass market through retailers and on a private
label basis to wholesale customers.
A
key
part of our marketing strategy is to provide to our wholesale customers a
"turnkey" approach to the marketing and distribution of our products. This
turnkey approach provides these customers with all the services necessary to
market our products, including developing specific product formulations,
providing supporting scientific studies regarding the effectiveness of the
product and arranging for the manufacture and marketing of the product.
We
sell
directly to the mass markets through retailers InflameAway, our own Celadrin®
branded product. We also develop and sell products and formulations to
businesses and organizations that market these products through multiple
channels of distribution, including direct marketing companies, mass marketing
companies, medical, health and nutritional professionals, medical newsletters
and direct response radio and television. We also offer Celadrin® products
through wholesale customers that in turn offer their products containing
Celadrin® to mass market retailers.
Our
address is 10845 Rancho Bernardo Road, Suite 105, San Diego, CA and our
telephone number is (858) 674-8455.
RISK
FACTORS
The
shares of common stock offered by this prospectus involve a high degree of
risk
and represent a highly speculative investment. You should not purchase these
shares if you cannot afford the loss of your entire investment. In addition
to
the other information contained in this prospectus, you should carefully
consider the following risk factors in evaluating our company, our business
prospects and an investment in our shares of common stock.
Risks
Related To Our Business
There
Is Only One Supplier for Celadrin®. If We Are Unable to Purchase Celadrin® from
This Supplier, Our Business Would Be Harmed.
There
is
only one supplier for Celadrin®, which we use in approximately 69% of our
products and which represented approximately 75% of our sales for the year
ended
March 31, 2007. We will rely upon Celadrin® to expand our product lines and
revenue in the future. If our Celadrin® supplier goes out of business or elects
for any reason not to supply us with Celadrin®, we would have to find another
Celadrin® supplier or suffer a significant reduction in our
revenue.
We
Rely upon a Limited Number of Customers the Loss of Which Would Reduce Our
Revenue and Any Earnings.
Our
largest customers accounted for 23% and 15% of our net sales for the year ended
March 31, 2007 and 22%, 16%, 13% and 11% for the year ended March 31, 2006.
The
loss of any of these customers could significantly reduce our revenue and
adversely affect our cash flow and earnings, if any.
We
Rely upon Other Outside Suppliers to Produce Our Products Which Could Delay
Our
Product Deliveries.
All
of
our products are produced by outside manufacturers who process ingredients
provided to them by our suppliers and with whom we have contracts. Our profit
margins and our ability to deliver products on a timely basis are dependent
upon
these manufacturers and suppliers. Should any of these manufacturers or
suppliers fail to provide us with product, we would be required to obtain new
manufacturers and suppliers, which would be costly and time consuming and could
delay our product deliveries.
Product
Liability Claims Against Us Could Be Costly.
Some
of
our nutritional supplements contain newly-introduced ingredients or combinations
of ingredients, and we have little long-term health information about
individuals consuming those ingredients. If any of these products were thought
or proved to be harmful, we could be subject to litigation. Although we carry
product liability insurance in the face amount of $1,000,000 per occurrence
and
$2,000,000 in the aggregate and require our suppliers and manufacturers to
include us as insured parties on their product liability insurance policies,
our
coverage may not be adequate to protect us from potential product liability
claims and costs of defense.
Related
To Our Industry
We
Are Subject to Intense Competition from Other Nutritional Supplement Marketers
Which Could Reduce Our Revenue and Profit Margins.
Competition
in the nutritional supplement market is intense. We compete with numerous
companies that have longer operating histories, more products and greater name
recognition and financial resources than we do. In order to compete, we could
be
forced to lower our product prices, which would reduce our revenue and profit
margins.
We
Are Highly Regulated, Which Increases Our Costs of Doing Business.
We
are
subject to laws and regulations which cover:
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the
formulation, manufacturing, packaging, labeling, distribution,
importation, sale and storage of
our
products;
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the
health and safety of food and drugs;
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trade
practice and direct selling laws; and
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product
claims and advertising by us; or for which we may be held responsible.
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Compliance
with these laws and regulations is time consuming and expensive. Moreover,
new
regulations could be adopted that would severely restrict the products we sell
or our ability to continue our business. We are unable to predict the nature
of
any future laws, regulations, interpretations or applications, nor can we
predict what effect additional governmental regulations or administrative
orders, when and if promulgated, would have on our business in the future.
These
future changes could, however, require the reformulation or elimination of
certain products; imposition of additional record keeping and documentation
requirements; imposition of new federal reporting and application requirements;
modified methods of importing, manufacturing, storing or distributing certain
products; and expanded or different labeling and substantiation requirements
for
certain products and ingredients. Any or all of these requirements could harm
our business.
Related
To the Offering
There
Are Limitations on the Liability of Our Officers and Directors Which May
Restrict Our Stockholders from Bringing Claims.
Our
Bylaws substantially limit the liability of our officers and directors to us
and
our stockholders for negligence and breach of fiduciary or other duties to
us.
This limitation may prevent stockholders from bringing claims against our
officers and directors in the future.
Shares
of Our Common Stock Which Are Eligible for Sale by Our Stockholders May Decrease
the Price of Our Common Stock.
We
have
10,871,400 common shares outstanding, of which 10,721,400 are freely tradable
or
saleable under Rule 144. We also have outstanding common stock warrants and
stock options exercisable into up to 5,486,100 shares of common stock which
could become free trading if exercised. If our stockholders sell substantial
amounts of our common stock, the market price of our common stock could
decrease.
There
is a Limited but Potentially Volatile Trading Market in Our Common Stock, Which
May Adversely Affect Our Stock Price.
Our
common stock trades on the Electronic Bulletin Board. The Bulletin Board tends
to be highly illiquid, in part because there is no national quotation system
by
which potential investors can track the market price of shares except through
information received or generated by a limited number of broker-dealers that
make a market in particular stocks. There is a greater chance of market
volatility for securities that trade on the Bulletin Board as opposed to a
national exchange or quotation system. This volatility may be caused by a
variety of factors, including:
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The
lack of readily available price quotations;
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The
absence of consistent administrative supervision of "bid" and "ask"
quotations;
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Lower
trading volume; and
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There
could be wide fluctuations in the market price of our common stock. These
fluctuations may have an extremely negative effect on the market price of our
securities and may prevent you from obtaining a market price equal to your
purchase price when you attempt to sell our securities in the open market.
In
these situations, you may be required to either sell our securities at a market
price which is lower than your purchase price, or to hold our securities for
a
longer period of time than you planned.
Because
Our Common Stock May Be Classified as "Penny Stock," Trading in it Could Be
Limited, and Our Stock Price Could Decline.
In
the
future, our common stock may fall under the definition of "penny stock" if
our
net tangible assets decline below $2,500,000. In such event, trading in our
common stock would be limited because broker-dealers will be required to provide
their customers with disclosure documents prior to allowing them to participate
in transactions involving our common stock. These disclosure requirements are
burdensome to broker-dealers and may discourage them from allowing their
customers to participate in transactions involving our common stock.
"Penny
stocks" are equity securities with a market price below $5.00 per share, other
than a security that is registered on a national exchange or included for
quotation on the NASDAQ system, unless, as in our case, the issuer has net
tangible assets of more than $2,000,000 and has been in continuous operation
for
greater than three years. Issuers who have been in operation for less than
three
years must have net tangible assets of at least $5,000,000.
Rules
promulgated by the Securities and Exchange Commission under Section 15(g) of
the
Exchange Act require broker-dealers engaging in transactions in penny stocks,
to
first provide to their customers a series of disclosures and documents,
including:
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A
standardized risk disclosure document identifying the risks inherent
in
investment in penny
stocks;
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All
compensation received by the broker-dealer in connection with the
transaction;
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Current
quotation prices and other relevant market data; and
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Monthly
account statements reflecting the fair market value of the securities.
In
addition, these
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rules
require that a broker-dealer obtain financial and other information from a
customer, determine that transactions in penny stocks are suitable for such
customer and deliver a written statement to such customer setting forth the
basis for this determination.
In
addition, under the Exchange Act and its regulations, any person engaged in
a
distribution of shares of our common stock offered by this prospectus may not
simultaneously engage in market making activities with respect to the common
stock during the applicable “cooling off” periods prior to the commencement of
this distribution.
We
Do Not Anticipate Paying Dividends On Our Common Stock.
We
have
not paid any cash dividends on our common stock since our inception and we
do
not anticipate paying cash dividends in the foreseeable future. Any dividends
which we may pay in the future will be at the discretion of our Board of
Directors and will depend on our future earnings, any applicable regulatory
considerations, our financial requirements and other similarly unpredictable
factors. For the foreseeable future, we anticipate that we will retain any
earnings which we may generate from our operations to finance and develop our
growth.
SELLING
STOCKHOLDERS
The
following table shows, as of September 20, 2007:
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the
name of each selling stockholder;
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how
many shares the selling stockholder beneficially owns;
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how
many shares the selling stockholder can resell under this prospectus;
and
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assuming
a selling stockholder sells all shares listed next to his or her
name, how
many shares the selling stockholder will beneficially own after completion
of the offering.
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We
may
amend or supplement this prospectus form time to time in the future to update
or
change this list of selling stockholders and shares that may be resold.
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Selling
Stockholder
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Number of
Shares Owned (1)
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Number of Shares
Offered for Sale
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Number of Shares
Owned After the Offering
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Derek
Boosey
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175,000
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175,000
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0
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Robert
Burg
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70,000
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70,000
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0
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Lowell
Giffhorn
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40,000
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40,000
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0
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Barry
King
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34,000
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34,000
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0
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Jeffrey
McGonegal
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70,000
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70,000
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0
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Debra
Spencer
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68,000
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68,000
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0
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William
Spencer
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235,000
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235,000
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0
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PLAN
OF DISTRIBUTION
We
have
been advised by the selling stockholders that they intend to sell all or a
portion of the shares offered from time to time on the Electronic Bulletin
Board
and that sales will be made at prices prevailing on the Electronic Bulletin
Board at the times of sale. The selling stockholders may also make private
sales
directly or through brokers who may act as agents or principals. Further, the
selling stockholders may choose to dispose of their shares by gift to a third
party or as a donation to a charitable or other non-profit entity. In connection
with any sales, the selling stockholders and any participating brokers may
be
deemed to be underwriters within the meaning of the Securities Act of 1933.
Any
broker-dealer participating as agent for the selling stockholders or for the
purchasers may receive commissions. Broker-dealers may agree with the selling
stockholders to sell a specified number of shares at a stipulated price per
share, and, to the extent such a broker-dealer is unable to do so acting as
agent for the selling stockholders, to purchase as principal any unsold shares
at the price required to fulfill the broker-dealer commitment to the selling
stockholders. Broker-dealers who acquire shares as principal may thereafter
resell such shares from time to time in transactions (which may involve crosses
and block transactions and which may involve sales to and through other
broker-dealers, including transactions of the nature described above), in the
over-the-counter market, in negotiated transactions or otherwise at market
prices prevailing at the time of sale or at negotiated prices, and in connection
with these resales may pay to or receive commissions from the purchasers.
We
have
advised the selling stockholders that Regulation M promulgated under the
Securities Exchange Act of 1934 may apply to sales in the market and has
informed them of the possible need for delivery of copies of this prospectus.
The selling stockholders may indemnify any broker-dealer that participates
in
transactions involving the sale of the shares against certain liabilities,
including liabilities arising under the Securities Act of 1933. Any commissions
paid or any discounts or concessions allowed to any broker-dealers, and, if
any
broker-dealers purchase shares as principal, any profits received on the resale
of shares, may be deemed to be underwriting discounts and commissions under
the
Securities Act of 1933.
Upon
notification by a selling stockholder that any material arrangement has been
entered into with a broker-dealer for the sale of shares through a cross or
block trade, a supplemental prospectus will be filed under Rule 424(c) under
the
Securities Act of 1933, setting forth the name of the participating
broker-dealer(s), the number of shares involved, the price at which the shares
were sold by the selling stockholders, the commissions paid or discounts or
concessions allowed by the selling stockholders to such broker-dealer(s), and
where applicable, that the broker-dealer(s) did not conduct any investigation
to
verify the information set forth in this resale prospectus.
Any
securities covered by this prospectus which qualify for sale pursuant to Rule
144 and 701 under the Securities Act may be resold under Rule 144 rather than
pursuant to this prospectus. In general, under Rule 144 as currently in effect,
a person (or persons whose shares are aggregated), including any person who
may
be deemed to be our “affiliate,” is entitled to sell within any three month
period “restricted shares” beneficially owned by him or her in an amount that
does not exceed the greater of (i) 1% of the then outstanding shares of common
stock or (ii) the average weekly trading volume in shares of common stock during
the four calendar weeks preceding such sale, provided that at least one year
has
elapsed since such shares were acquired from us or our affiliate. Sales are
also
subject to certain requirements as to the manner of sale, notice and
availability of current public information regarding us. A person who has not
been our “affiliate” at any time within three months prior to the sale is
entitled to sell his or her shares without regard to the volume limitations
or
the other requirements of Rule 144, provided that at least one year has elapsed
since the shares were acquired from us or our affiliate. In general, under
Rule
701 as currently in effect, any employee, consultant or advisor of us who
purchases shares from us in connection with a compensatory stock or option
plan
or other written agreement related to compensation is eligible to resell these
shares in reliance on Rule 144, but without compliance with the certain
restrictions contained in Rule 144.
SEC
POSITION REGARDING INDEMNIFICATION
Our
Articles of Incorporation and Bylaws provide for indemnification of officers
and
directors, among other things, in instances in which they acted in good faith
and in a manner they reasonably believed to be in, or not opposed to, our best
interests and in which, with respect to criminal proceedings, they had no
reasonable cause to believe their conduct was unlawful.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933,
as
amended, may be permitted to our directors, officers or persons controlling
us
under the provisions described above, we have been informed that in the opinion
of the Securities and Exchange Commission, indemnification is against public
policy as expressed in that Act and is therefore unenforceable.
DESCRIPTION
OF THE PLAN
In
August
2000 our Board of Directors approved the Plan for the benefit of our employees,
officers, directors and consultants. We believe that the Plan provides an
incentive to individuals to act as employees, officers, directors and
consultants and to maintain a continued interest in our operations. All options
were issued under Section 422A of the Internal Revenue Code and are incentive
or
non-qualified stock options.
The
terms
of the Plan provide that we are authorized to grant options to purchase shares
of common stock to our employees, officers, directors and consultants upon
the
majority consent of our Board of Directors acting as a Compensation Committee.
Any employee, officer, director or consultant is eligible to receive options
under the Plan. The option price must not be less than 100% of fair market
value. Options must be exercised within 10 years following the date of grant
(or
sooner at the discretion of the Compensation Committee), and the optionee must
exercise options during service to us or within three months of termination
of
such service (12 months in the event of death on disability). The Compensation
Committee may extend the termination date of an option granted under the Plan.
A
total
of 1,500,000 shares of our authorized but unissued common stock have been
reserved for issuance pursuant to the Plan of which 1,479,000 options are
currently outstanding at exercise prices ranging from $0.86 to $2.00 per share.
In the event of a change in control of our company (as defined in the Plan),
all
outstanding options become immediately exercisable.
Options
under the Plan may not be transferred, except by will or by the laws of
intestate succession. The number of shares and price per share of the options
under the Plan will be proportionately adjusted to reflect forward and reverse
stock splits. The holder of an option under the Plan has none of the rights
of a
shareholder until shares are issued.
The
Plan
is administered by our Compensation Committee which has the power to interpret
the Plan, determine which persons are to be granted options and the amount
of
such options. The provisions of the Federal Employee Retirement Income Security
Act of 1974 do not apply to the Plan. Shares issuable upon exercise of options
will not be purchased in open market transactions but will be issued by us
from
authorized shares. Payment for shares must be made by optionees in cash from
their own funds. No payroll deductions or other installment plans have been
established. No reports will be made to optionees under the Plan except in
the
form of updated information for the prospectus. There are no assets administered
under the Plan, and, accordingly, no investment information is furnished
herewith.
Shares
issuable under the Plan may be sold in the open market, without restrictions,
as
free trading securities. No options may be assigned, transferred, hypothecated
or pledged by the option holder. No person may create a lien on any securities
under the Plan, except by operation of law. However, there are no restrictions
on the resale of the shares underlying the options.
The
Plan
will remain in effect until August 21, 2010 but may be terminated or extended
by
our Board of Directors. Additional information concerning the Plan and its
administrators may be obtained from us at the address and telephone number
indicated under “Incorporation by Reference” above.
APPLICABLE
SECURITIES LAW RESTRICTIONS
If
the
optionee is deemed to be an “affiliate” (as that term is defined under the
Securities Act of 1933, as amended), the resale of the shares purchased upon
exercise of options covered hereby will be subject to certain restrictions
and
requirements. Our legal counsel may be called upon to discuss these applicable
restrictions and requirements with any optionee who may be deemed to be an
affiliate, prior to exercising an option.
In
addition to the requirements imposed by the Securities Act of 1933, the
antifraud provisions of the Securities Exchange Act of 1934 and the rules
thereunder (including Rule 10b-5) are applicable to any sale of shares acquired
pursuant to options.
Up
to
1,500,000 shares may be issued under the Plan. Common shares outstanding and
those to be issued upon exercise of options are fully paid and nonassessable,
and each share of stock is entitled to one vote at all shareholders’ meetings.
All shares are equal to each other with respect to lien rights, liquidation
rights and dividend rights. There are no preemptive rights to purchase
additional shares by virtue of the fact that a person is a shareholder of the
Company. Shareholders do not have the right to cumulate their votes for the
election of directors.
Our
directors must comply with certain reporting requirements and resale
restrictions pursuant to Sections 16(a) and 16(b) of the Securities Exchange
Act
of 1934 and the rules thereunder upon the receipt or disposition of any options.
TAX
CONSEQUENCES
Upon
exercise of the option, the optionee will be taxed, as ordinary income, on
the
difference between the exercise price of the option and the fair market value
of
the underlying shares on the date of exercise. The fair market value then
becomes the optionee’s basis in the underlying shares.
LEGAL
MATTERS
The
validity of the shares of common stock offered hereby will be passed on for
us
by Gary A. Agron, 5445 DTC Parkway, Suite 520, Greenwood Village, Colorado
80111. Mr. Agron owns 50,000 Class C warrants.
EXPERTS
Our
financial statements incorporated by reference to our Annual Report on Form
10-KSB covering the years ended March 31, 2007 and 2006, were audited by HJ
Associates & Consultants, LLP, Independent Registered Public Accounting
Firm, as indicated in their report with respect thereto, and are incorporated
herein by reference.
PART
I
The
documents containing the information specified in Item 1 will be sent or given
to participants in the Registrant’s 2000 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) or additional information about the 2000 Stock Option
Plan are available without charge by contacting:
Debra
Spencer, Secretary
10845
Rancho Bernardo Road, Suite 105
San
Diego, CA 92127
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
following documents previously filed with the SEC. 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:
|
|
(a)
|
The
Registrant’s Annual Report on Form 10-KSB for the fiscal year ended
March 31, 2007 filed pursuant to Section 13(a) or 15(d) of the
Exchange Act;
|
|
|
(b)
|
The
Registrant’s Quarterly Reports on Form 10-QSB for the quarter ended
June 30, 2007 filed pursuant to Section 13(a) or 15(d) of the
Exchange Act;
|
|
|
(c)
|
All
other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since March 31, 2007;
and
|
|
|
(d)
|
The
description of the Registrant’s common stock that is contained in the
Registrant’s Registration Statement on Form SB-2, dated March 3,
2005, including any amendments or reports filed for the purpose of
updating such description.
|
|
Item
4.
|
Description
of Securities
|
Not
applicable.
|
Item
5.
|
Interests
of Named Experts and
Counsel
|
Not
applicable.
|
Item
6.
|
Indemnification
of Directors and Officers
|
Our
Articles of Incorporation provide that no officer or director shall be
personally liable to this corporation or our stockholders for monetary damages
for breach of fiduciary duty as a director or officer of this corporation,
but
the Articles do not eliminate or limit the liability of a director or officer
for (i) acts or omissions which involve intentional misconduct, fraud or a
knowing violation of the law or (ii) the unlawful payment of
dividends.
Our
bylaws and Articles of Incorporation also provide that we shall, to the maximum
extent and in the manner permitted by the Nevada Revised Statutes, indemnify
each person who serves at any time as a director, officer, employee or agent
of
Imagenetix, Inc. from and against any and all expenses, judgments, fines,
settlements and other amounts actually and reasonable incurred in connection
with any proceeding arising by reason of the fact that he is or was a director,
officer, employee or agent of Imagenetix, Inc. We also have the power to defend
such person from all suits or claims in accord with the Nevada Revised Statutes.
The rights accruing to any person under our bylaws and Articles of Incorporation
do not exclude any other right to which any such person may lawfully be
entitled, and we may indemnify or reimburse such person in any proper case,
even
though not specifically provided for by the bylaws and Articles of
Incorporation.
Insofar
as indemnification for liabilities for damages arising under the Securities
Act
of 1933, (the “Act”) may be permitted to our directors, officers, and
controlling persons pursuant to the foregoing provision, 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 Act and is,
therefore, unenforceable.
|
Item
7.
|
Exemption
from Registration Claimed
|
None.
See
the
attached Exhibit Index that follows the signature pages, which is incorporated
by reference.
|
|
(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) (§ 230.424(b) of this chapter) if, in the aggregate, the
changes in volume and price represent no more than 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 the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii)
do
not apply 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 (15 U.S.C. 78m
or
78o(d)) 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.
|
|
|
(b)
|
The
Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d)
of
the Securities Exchange Act of 1934 (and, where applicable, each
filing of
an employee benefit plan's annual report pursuant to section 15(d)
of the
Securities Exchange Act of 1934) that is incorporated by reference
in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
|
|
|
(c)
|
Insofar
as indemnification for liabilities arising under the Securities Act
of
1933 may be permitted to directors, officers and controlling persons
of
the Registrant pursuant to the foregoing provisions, or otherwise,
the
Registrant has been advised that in the opinion of the Securities
and
Exchange Commission such indemnification is against public policy
as
expressed in the Act and is, therefore, unenforceable. In the event
that a
claim for indemnification against such liabilities (other than the
payment
by the registrant of expenses incurred or paid by a director, officer
or
controlling person of the registrant in the successful defense of
any
action, suit or proceeding) is asserted by such director, officer
or
controlling person in connection with the securities being registered,
the
Registrant will, unless in the opinion of its counsel the matter
has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the
final
adjudication of such issue.
|
SIGNATURES
In
accordance with the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements of filing on Form S-8 and authorized this registration statement
to
be signed on its behalf by the undersigned, in San Diego, California, on
September 26, 2007.
|
|
IMAGENETIX,
INC.
|
|
|
|
|
|
|
By:
|
/s/ WILLIAM
SPENCER
|
|
|
Title:
Chief Executive Officer
|
The
officers and directors of Imagenetix, Inc., whose signatures appear below,
hereby constitute and appoint William Spencer and Lowell W. Giffhorn and each
of
them, their true and lawful attorneys and agents, each with power to act alone,
to sign, execute and cause to be filed on behalf of the undersigned any
amendment or amendments, including post-effective amendments, to this
registration statement of Imagenetix, Inc. on Form S-8. Each of the undersigned
does hereby ratify and confirm all that said attorneys and agents shall do
or
cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/
William Spencer
|
|
Chief
Executive Officer and Director
|
|
September
26, 2007
|
|
William
Spencer
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
|
|
/s/
Debra Spencer
|
|
Secretary
and Director
|
|
September
26, 2007
|
|
Debra
Spencer
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Jeffrey McGonegal
|
|
Director
|
|
September
26, 2007
|
|
Jeffrey
McGonegal
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Barry King
|
|
Director
|
|
September
26, 2007
|
|
Barry
King
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Robert Burg
|
|
Director
|
|
September
26, 2007
|
|
Robert
Burg
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Lowell Giffhorn
|
|
Chief
Financial Officer
|
|
September
26, 2007
|
|
Lowell
Giffhorn
|
|
(Principal
Financial Officer)
|
|
|
EXHIBIT
INDEX
|
Exhibit No.
|
|
Exhibit
Description
|
|
|
|
|
|
4.1
|
|
2000
Stock Option Plan.
|
|
|
|
|
|
5.1
|
|
Opinion
of Gary A. Agron with respect to the securities being
registered.
|
|
|
|
|
|
23.1
|
|
Consent
of HJ Associates & Consultants, LLP, independent registered public
accounting firm.
|
|
|
|
|
|
23.2
|
|
Consent
of Gary A. Agron (contained in Exhibit 5.1).
|
|
|
|
|
|
24.1
|
|
Power
of attorney (contained on the signature page
hereto).
|
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