As
filed with the Securities and Exchange Commission on January 26, 2011
Registration
No. 333-168857
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No. 6 to
Form
S-1
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
Freeze
Tag, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
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3944
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20-4532392
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(State
or other jurisdiction of
incorporation
or organization
|
(Primary
Standard Industrial
Classification
Code Number)
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(I.R.S.
Employer
Identification
No.)
|
228
W. Main Street, 2nd Floor
Tustin,
California 92780
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(714)
210-3850
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(Address,
including zip code, of registrant’s
principal
executive offices)
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(Telephone
number, including area code)
|
Craig
Holland, President
Freeze
Tag, Inc.
228 W.
Main Street, 2nd Floor
Tustin,
CA 92780
(714)
210-3850
(Name,
address, including zip code, and telephone
number,
including area code, of agent for service)
COPIES
TO:
Brian A.
Lebrecht, Esq.
The
Lebrecht Group, APLC
9900
Research Drive
Irvine,
CA 92618
(949)
635-1240
Approximate
date of commencement of proposed sale to the public:
From time
to time after this registration statement becomes effective.
If any of the securities being
registered on this Form are to be offered on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933, check the following
box. x
If this Form is filed to register
additional securities for an offering pursuant to Rule 462(b) under the
Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. ¨
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. ¨
If this Form is a post-effective
amendment filed pursuant to Rule 462(d) under the Securities Act, check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. ¨
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 definitions of “large
accelerated filer,” “accelerated filer” and “smaller reporting company” in
Rule 12b-2 of the Exchange Act. (Check one):
Large
accelerated filer ¨
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Accelerated
filer
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¨
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|||
Non-accelerated
filer ¨
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Smaller
reporting company
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þ
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|||
(Do not check if a smaller reporting company) |
CALCULATION
OF REGISTRATION FEE
Title of each
class of
securities to be
registered
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Amount
to be
registered
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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 (3)
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||||||||||||
Common
Stock of certain
selling
shareholders
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13,338,320 | (1) | $ | 0.10 | $ | 1,333,832 | $ | 95.11 | ||||||||
Total
Registration Fee
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$ | 95.11 |
(1)
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Pursuant
to Rule 416 of the Securities Act, this registration statement shall be
deemed to cover additional securities (i) to be offered or issued in
connection with any provision of any securities purported to be registered
hereby to be offered pursuant to terms that provide for a change in the
amount of securities being offered or issued to prevent dilution resulting
from stock splits, stock dividends, or similar transactions and (ii) of
the same class as the securities covered by this registration statement
issued or issuable prior to completion of the distribution of the
securities covered by this registration statement as a result of a split
of, or a stock dividend paid with respect to, the registered
securities.
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(2)
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There
is currently no market for our common stock. The offering price
per share for the selling security holders was estimated solely for the
purpose of calculating the registration fee pursuant to Rule 457(a) and
(o) under the Securities Act of 1933, as amended. For purposes
of this calculation we used the last sale price at which the Company sold
shares, which was in a private
placement.
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(3)
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Previously
paid by registrant.
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The registrant hereby amends this
registration statement on such date or dates as may be necessary to delay its
effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until
the registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may
determine.
PART
II – INFORMATION NOT REQUIRED IN PROSPECTUS
OTHER
EXPENSES OF ISSUANCE AND DISTRIBUTION
We will pay all expenses in connection
with the registration and sale of the common stock by the selling stockholder,
who may be deemed to be an underwriter in connection with their offering of
shares. The estimated expenses of issuance and distribution are set forth
below:
Registration
Fees
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Approximately
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$ | 96 | |||
Transfer
Agent Fees
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Approximately
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500 | ||||
Costs
of Printing and Engraving
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Approximately
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500 | ||||
Legal
Fees
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Approximately
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30,000 | ||||
Accounting
and Audit Fees
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Approximately
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28,000 | ||||
Total
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$ | 59,096 |
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
Article VIII of our Articles of
Incorporation provides that, to the fullest extent permitted by law, no director
or officer shall be personally liable to the Corporation or its shareholders for
damages for breach of any duty owed to the Corporation or its shareholders. In
addition, the Corporation shall have the power, in its Bylaws or in any
resolution of its stockholders or directors, to indemnify the officers and
directors of this Corporation against any liability as may be determined to be
in the best interests of this Corporation, and in conjunction therewith, to buy,
at this Corporation’s expense, policies of insurance.
Article 7 of our bylaws further
addresses indemnification in the same manner as our Articles of Incorporation.
There are no resolutions of our shareholders or directors which address
indemnification.
Insofar as indemnification for
liabilities arising under the Securities Act of 1933 (the “Act”) may be
permitted to directors, officers and controlling persons of the small business
issuer pursuant to the foregoing provisions, or otherwise, the small business
issuer 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.
RECENT
SALES OF UNREGISTERED SECURITIES
On
August 2, 2010, we granted Craig Holland, our President, Chief Executive
Officer, and a Director, options to purchase up to 115,000 shares of our common
stock at an exercise price of $0.11 per share. The options were
granted under the Freeze Tag, Inc. 2006 Stock Plan. The issuance of
these options was exempt from registration pursuant to Section 4(2) of the
Securities Act, and the holder was sophisticated and familiar with our
operations.
On July
1, 2010, we issued one (1) 10% convertible promissory note in the principal
amount of $100,000 to the Holland Family Trust. Under the terms of the note,
interest payments are to begin on August 1, 2010, the note matures on July 1,
2011, the note is convertible into our common stock at a conversion price of
$0.10 per share, and $75,000 of the purchase price has been paid with the other
$25,000 due in the future. The issuance of this note was exempt from
registration pursuant to Section 4(2) of the Securities Act, and the holder was
sophisticated and familiar with our operations.
Effective
January 31, 2010, we issued an aggregate of 3,454,000 shares of our common
stock, restricted in accordance with Rule 144 promulgated under the Securities
Act of 1933, to 120 non-affiliate investors in exchange for
$345,400. These shares were sold for a price of $0.10 per
share. The total offering was for $1,250,000, was limited to
accredited investors only, and did not utilize any general solicitation or
advertising. All offerees invested pursuant to the terms of Private
Placement Memorandum dated November 2, 2009, as amended. As such, the
stock issuances were exempt from registration pursuant to Rule 506 under
Regulation D promulgated under the Securities Act of 1933, as
amended.
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Effective
on October 15, 2009, we issued an aggregate of 1,123,065 shares of our common
stock, restricted in accordance with Rule 144 promulgated under the Securities
Act of 1933, to seven current and former employees and/or consultants, including
Mick Donahoo, one of our officers and directors, upon the conversion of their
outstanding option agreements. The issuances were exempt from registration
pursuant to Section 4(2) of the Securities Act, and each of the shareholders was
sophisticated and familiar with our operations.
Effective on October 15, 2009, we
issued an aggregate of 4,595,534 shares of our common stock, restricted in
accordance with Rule 144 promulgated under the Securities Act of 1933, to five
of our creditors upon the conversion of their outstanding notes and warrants.
The issuances were exempt from registration pursuant to Section 4(2) of the
Securities Act, and each of the shareholders was sophisticated and familiar with
our operations.
On
October 12, 2009, we issued 2,198,593 shares of our common stock, restricted in
accordance with Rule 144 promulgated under the Securities Act of 1933, to each
of The Lebrecht Group, APLC, Rising Market Group, LLC, and Cardiff Partners,
LLC, as consideration under a consulting or services agreement with each. The
issuances were exempt from registration pursuant to Section 4(2) of the
Securities Act, and each of the consultants was an accredited
investor.
On March
30, 2006, pursuant to the terms of the merger of Freeze Tag, LLC with and into
Freeze Tag, Inc., Craig Holland and Mick Donahoo, each one of our officers and
directors, was issued 13,872,375 and 11,350,125 shares, respectively, of our
common stock, restricted in accordance with Rule 144 promulgated under the
Securities Act of 1933. In connection with the same transaction, a third member
of Freeze Tag, LLC was issued 1,327,500 shares of our restricted common stock.
The issuances were exempt from registration pursuant to Section 4(2) of the
Securities Act, and the shareholders were accredited.
All share numbers above have been
adjusted to reflect our 5.31-to-1 forward stock split effective October 20,
2009.
EXHIBITS
3.1
(1)
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Articles
of Incorporation of Freeze Tag, Inc.
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3.2
(1)
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Articles
of Amendment to Articles of Incorporation
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3.3
(1)
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Bylaws
of Freeze Tag, Inc.
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4.1
(1)
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Freeze
Tag, Inc. 2006 Stock Plan
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5.1
(3)
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Legal
Opinion of The Lebrecht Group, APLC
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10.1
(1)
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10%
Convertible Promissory Note dated July 1, 2010 with The Holland Family
Trust
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10.2
(1)
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Support
Services Agreement with Cardiff Partners, LLC dated October 12,
2009
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II-2
10.3
(1)
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Amendment
No. 1 to Support Services Agreement with Cardiff Partners, LLC dated March
2, 2010
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10.4
(1)
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Amendment
No. 2 to Support Services Agreement with Cardiff Partners, LLC dated March
3, 2010
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10.5
(1)
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Form
of Conversion Agreement for October 2009 Conversions
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10.6
(1)
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Form
of Option Conversion Agreement for October 2009
Conversions
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10.7
(1)
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Placement
Agent and Advisory Services Agreement with Monarch Bay Associates, LLC
dated October 12, 2009
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10.8
(1)
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Corporate
Communications Consulting Agreement Michael Southworth dated September 25,
2009
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10.9
(1)
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Lock-Up
Agreement dated November 10, 2009
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10.10
(2)
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Loan
Agreement with Sunwest Bank dated October 20, 2006, as
amended
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23.1
(3)
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Consent
of M&K CPAS, PLLC
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23.2
(3)
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Consent
of The Lebrecht Group, APLC (included in Exhibit
5.1)
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*Filed
herewith
(1) Incorporated
by reference from our Registration Statement on Form S-1, filed with the
Commission on August 16, 2010.
(2) Incorporated
by reference from Amendment No. 2 to our Registration Statement on Form S-1/A2,
filed with the Commission on October 25, 2010.
(3) Incorporated
by reference from Amendment No. 5 to our Registration Statement on Form S-1/A5,
filed with the Commission on January 12, 2011.
Undertakings
A. Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to our directors, officers and controlling persons 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. In the event that a claim for indemnification against such
liabilities (other than the payment by us of expenses incurred or paid by our
director, officer or controlling person 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, we will, unless in the
opinion of our 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 of 1933 and will be governed by the final adjudication of such
issue.
B. The
undersigned registrant hereby undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
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(a)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
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II-3
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(b)
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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) (Section 230.424(b) of Regulation S-K) if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration
statement; and
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(c)
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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.
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(2)
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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 the securities at that time shall be deemed to be the initial
bona fide offering thereof.
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(3)
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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.
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(4)
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That,
for the purpose of determining liability under the Securities Act of 1933
to any purchaser:
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(i) If
the registrant is relying on Rule 430B (§230.430B of this chapter):
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) (§230.424(b)(3) of
this chapter) 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)
(§230.424(b)(2), (b)(5), or (b)(7) of this chapter) 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) (§230.415(a)(1)(i), (vii), or (x) of this chapter)
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 that 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;
or
(ii) If
the registrant is subject to Rule 430C (§230.430C of this chapter), each
prospectus filed pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying on Rule 430B
or other than prospectuses filed in reliance on Rule 430A (§230.430A of this
chapter), shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. 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 first use, 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 date of first
use.
II-4
SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, in the City of Tustin,
State of California.
Freeze
Tag, Inc.
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Dated: January
26, 2011
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/s/ Craig Holland
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By: Craig
Holland
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Its: President
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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 stated.
Dated: January
26, 2011
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/s/ Mick Donahoo
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By: Mick
Donahoo, Director and Chief
Financial
Officer, Chief
Accounting Officer, Chief Operating Officer
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Dated: January
26, 2011
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/s/ Craig Holland
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By: Craig
Holland, Director and
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President, Chief Executive Officer
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II-5