As filed with the Securities and Exchange Commission on April 8, 2011

Registration Statement No. 333-171163

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Amendment No. 4

to

Form S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

T3 MOTION, INC.

(Name of Registrant in Its Charter)

 

T3 Motion, Inc.

2990 Airway Avenue, Building A

Costa Mesa, CA 92626

(714) 619-3600

(Address and telephone number of principal executive offices and principal place of business)

Ki Nam,

Chief Executive Officer

T3 Motion, Inc.

2990 Airway Avenue, Building A

Costa Mesa, CA 92626

(714) 619-3600

(Name, address and telephone number of Agent for Service)

 

Copy to:

 

 

Approximate date of commencement of proposed sale to the public:  As soon as practical after the effective date of this Registration Statement.

 

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.  þ

 

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.  o

 

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.  o

 

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.  o

 

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 “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

 

CALCULATION OF REGISTRATION FEE

 

 

 

 

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 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to Section 8(a), may determine.

 

 

PART II

 

Item 13.  Other Expenses of Issuance and Distribution.

 

Set forth below is an itemized statement of all expenses, all of which we will pay, in connection with the registration of the common stock offered hereby. All amounts are estimates except the SEC, NYSE Amex and FINRA fees.

 

 

 

Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to officers, directors and other corporate agents in terms sufficiently broad to permit such indemnification under certain circumstances and subject to certain limitations.

 

The registrant’s article of incorporation includes a provision that eliminates the personal liability of its directors for monetary damages for breach of their fiduciary duty as directors.

 

In addition, the registrant’s bylaws provide for the indemnification of officers, directors and third parties acting on our behalf, to the fullest extent permitted by Delaware General Corporation Law, if our board of directors authorizes the proceeding for which such person is seeking indemnification (other than proceedings that are brought to enforce the indemnification provisions pursuant to the bylaws). The registrant maintains director and officer liability insurance.

 

These indemnification provisions may be sufficiently broad to permit indemnification of the registrant’s executive officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act of 1933.

 

 

All common share and per common share information assumes a one-for-10 revenue stock split of our common stock. In December 2007, we completed an offering of our common stock to Immersive Media Corp. We issued 185,185 shares of our common stock for cash at $16.20 per share for an aggregate price of $3,000,000. We also issued 12% promissory notes in the principal amount of $2,000,000 and warrants to purchase 69,764 shares at $10.81 per share in exchange for $2,000,000. This January 2008 transaction (a) involved no general solicitation, and (b) involved only accredited purchasers. Thus, we believe that the offering was exempt from registration under Regulation D, Rule 505 of the Securities Act of 1933 (“Securities Act”), as amended.

 

In March 2008, we completed an offering of our common stock to one shareholder. We issued 389,610 shares of our common stock and warrants to purchase 129,870, 129,870, and 129,870 shares of common stock at an exercise price of $10.80, $17.70 and $20.00 per share, respectively, for cash at an aggregate price of $3,000,000. This March 2008 transaction (a) involved no general solicitation, and (b) involved only accredited purchasers. Thus, we believe that the offering was exempt from registration under Regulation D, Rule 505 of the Securities Act.

 

In May 2008, we completed an offering of an aggregate of 39,964 shares of our common stock at $16.50 per share to 41 accredited investors (the “Offering”) pursuant to subscription agreements for an aggregate price of

$644,554. The issuance of the securities describe above were exempt from the registration requirements of the Securities Act under Rule 4(2) and Regulation D and the rules thereunder, including Rule 506 insofar as: (1) the purchasers were each an accredited investor within the meaning of Rule 501(a); (2) the transfer of the securities were restricted by us in accordance with Rule 502(d); (3) there were no other non-accredited investors involved in the transaction within the meaning of Rule 506(b); and (4) the offer and sale of the securities was not effected through any general solicitation or general advertising within the meaning of Rule 502(c).

 

On December 30, 2008, we sold $2.2 million in debentures and warrants through a private placement. We issued to certain purchasers, 10% Secured Convertible Debentures (“December 2008 Debentures”) with an aggregate principal value of $2,200,000. The December 2008 Debentures are currently convertible into shares of $15.40 per share. The conversion price was subject to further adjustment upon certain events. Such purchasers also received Series D Common Stock Purchase Warrants (the “Warrants”). Pursuant to the terms of Warrants, these purchasers are entitled to purchase up to an aggregate 66,667 shares of our common stock at an exercise price of $20.00 per share. The Warrants have a term of five years after the issue date of December 30, 2008. Each of these purchasers represented that they were “accredited” investors as defined under Rule 144 of the Securities Act. We relied upon the exemption from registration as set forth in Section 4 (2) of the Securities Act for the issuance of these securities.

 

On May 28, 2009, we issued debentures that are convertible into approximately 60,000 shares of common stock and warrants to purchase 30,000 shares of common stock to certain investors. Each of these investors represented that they were “accredited” investors as defined under Rule 144 of the Securities Act. We relied upon the exemption from registration as set forth in Section 4 (2) of the Securities Act for the issuance of these securities.

 

On December 30, 2009, we issued to a certain investor (i) debentures that are convertible into approximately 3,500,000 shares of Series A convertible preferred stock (“Preferred Stock”) and warrants to purchase 350,000 shares of common stock and (ii) warrants to purchase up to 350,000 shares of common stock in exchange for cash. In addition, we issued to another investor, an aggregate of 9,370,698 shares of Preferred Stock. 3,055,000 shares of Preferred Stock were issued in exchange for the delivery and cancellation of 10% Secured Convertible Debentures we previously issued to such investor in the principal amount of $2,200,000 and $600,000 plus accrued interest of $255,000; 2,263,750 shares of Preferred Stock were issued in exchange for the delivery and cancellation of Series A, B, C, D, E and F warrants we previously issued to such investor; and 4,051,948 shares of Preferred Stock were issued to satisfy our obligation to issue equity to such investor pursuant to a Securities Purchase Agreement dated on March 24, 2008, as amended on May 28, 2009. The investors represented that each was an “accredited investor” as defined under Rule 501 of the Securities Act or a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act. We relied upon the exemption from registration as set forth in Section 4(2) of the Securities Act for the issuance of these securities.

 

During the three months ended March 31, 2010, we raised $905,000 through an equity financing transaction. We issued and sold 905,000 shares of preferred stock. In connection with the financing, we granted warrants to purchase 181,006 shares of common stock, exercisable at $7.00 per share. The warrants are exercisable for five years. Each of these investors represented that they were “accredited” investors as defined under Rule 144 of the Securities Act. We relied upon the exemption from registration as set forth in Section 4 (2) of the Securities Act for the issuance of these securities.

 

On March 31, 2010, Immersive agreed to extend the note to April 30, 2010. As consideration for extending the note, we agreed to exchange Immersive’s Class A warrants to purchase up to 69,764 shares of our common stock at an exercise price of $10.80 per share and its Class D warrants to purchase up to 25,000 shares of our common stock at an exercise price of $20.00 per share, for Class G Warrants to purchase up to 69,764 and 25,000 shares of our common stock, respectively, each with an exercise price of $7.00 per share. The note and accrued interest were not repaid in full by April 30, 2010. Per the agreement, the maturity date was extended to March 31, 2011 we issued Class G Warrants to purchase up to 104,000 shares of our common stock at an exercise price of $7.00 per share. The interest rate compounded annually was amended to 15%. The terms of the Class G Warrants are substantially similar to prior Class G warrants we issued. The Immersive note and accrued interest were not repaid in full by April 30, 2010. Per the agreement, the maturity date was extended to March 31, 2011 and we issued Class G Warrants to purchase up to 104,000 shares of our common stock at an exercise price of $7.00 per share valued at

$728,000. The interest rate compounded annually was amended to 15%. The terms of the Class G Warrants are substantially similar to prior Class G warrants we issued. The terms of the Class G Warrants are substantially similar to prior Class G warrants we previously issued.

 

On December 31, 2010, we entered into a Securities Exchange Agreement (the “Exchange Agreement”) with a warrant holder pursuant to which we exchanged 350,000 Class G Warrants into 210,000 shares of our common stock. This investor represented that it was an “accredited” investor as defined under Rule 144 of the Securities Act. We relied upon the exemption from registration as set forth in Section 4 (2) of the Securities Act for the issuance of these securities.

 

 

 

 

 

 

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 to:

 

i. Include any prospectus required by section 10(a)(3) of the Securities Act of 1933;

 

ii. 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) any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

iii. Include any additional or changed 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.

 

2. That for 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. File a post-effective amendment to remove from registration any of the securities that remain unsold at the end of offering.

 

4. For determining liability of the Company under the Securities Act to any purchaser in the initial distribution of the securities, the Company undertakes that in a primary offering of securities of the Company pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the Company will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser also different from 8-K:

 

i. Any preliminary prospectus or prospectus of the Company relating to the offering required to be filed pursuant to Rule 424;

 

ii. Any free writing prospectus relating to the offering prepared by or on behalf of the Company or used or referred to by the Company;

 

iii. The portion of any other free writing prospectus relating to the offering containing material information about the Company or its securities provided by or on behalf of the Company; and

 

iv. Any other communication that is an offer in the offering made by the Company to the purchaser.

 

5. For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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.

 

6. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons under the foregoing provisions or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. If a claim for indemnification against such liabilities (other than our payment of expenses incurred or paid by any of our directors, officers or controlling persons 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 a controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, in the City of Costa Mesa, State of California on April 8, 2011.

 

T3 MOTION, INC.

 

Ki Nam

Chief Executive Officer, Chief Financial Officer, and Chairman of the Board

 

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 DATES INDICATED:

 

EXHIBIT INDEX