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As filed with the Securities and Exchange Commission on February 8, 2000
Registration No. _______________
FORM S-8
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THERMACELL TECHNOLOGIES, INC.
----------------------------
(Exact name of registrant as specified in its charter)
Florida 59-3223708
- ------------------------------- --------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
1125 Commerce Blvd., Sarasota, Florida 34243
--------------------------------------------
(Address of principal executive offices) (Zip Code)
Alan Berkun Consulting Agreement
--------------------------------
(Full title of the plan)
CALCULATION OF REGISTRATION FEE
================================================================================
================================================================================
Title of Each Class of Securities Amount to be Proposed
Proposed Amount of
to be Registered Registered Offering Price
Aggregate Registration Fee
Per Share(1)(2)
Offering Price
- --------------------------------------------------------------------------------
- -------------------------------
Shares of Common Stock, $.01 par value 850,000 1.43
$1,215,500.00
("Common Stock")
================================================================================
Total Registration Fee
$320.53
================================================================================
(1) Pursuant to Rule 457, estimated solely for the purpose of calculating the
registration fee.
(2) Based on the average of the closing bid and asked prices per share of the
Common Stock as quoted by the National Association of Securities Dealers
Automated Quotation System on February 7, 2000.
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EXPLANATORY NOTE
----------------
In accordance with the instructional Note to Part 1 of Form S-8 as
promulgated by the Securities and Exchange Commission, the information specified
by Part 1 of Form S-8 has been omitted from this Registration Statement on Form
S-8 for offers of Common Stock pursuant to the Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
The following documents are incorporated by reference in this
registration statement.
(a) The Registrant's annual report on Form 10-KSB for the year
ended September 30, 1999 filed on January 18, 2000.
(b) All reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Exchange Act since September 30, 1998.
(c) The description of Registrant's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission
on August 28, 1996 under Section 12 of the Securities Exchange
Act of 1934, including any amendment or report filed for the
purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of
this registration statement and prior to the filing of a post-effective
amendment to this registration statement which indicates that all securities
offered hereunder have been sold, or which deregisters all securities then
remaining unsold under this registration statement, 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 contained in a document or incorporated or deemed to be
incorporated by reference 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 subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement. All
information in this Registration Statement is qualified in its entirety by the
information and financial statements (including the notes thereto) appearing in
the documents incorporated herein by reference, except to the extent set forth
in the immediately preceding statement.
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Item 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable; the class of securities to be offered is registered
under Section 12 of the Securities Exchange Act of 1934.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
-------------------------------------
None.
Item 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
-----------------------------------------
Section 607.0850 of the Florida Business Corporation Act (the "FBCA")
permits, in general, a Florida corporation to indemnify any person who was or is
a party to an action or proceeding by reason of the fact that he or she was a
director or officer of the corporation, or served another entity in any capacity
at the request of the corporation, against liability incurred in connection with
such proceeding including the estimated expenses of litigating the proceeding to
conclusion and the expenses, actually and reasonably incurred in connection with
the defense or settlement of such proceeding, including any appeal thereof, if
such person acted in good faith, for a purpose he or she reasonably believed to
be in, or not opposed to, the best interests of the corporation and, in criminal
actions or proceedings, in addition had no reasonable cause to believe that his
or her conduct was unlawful. Section 607.0850(6) of the FBCA permits the
corporation to pay in advance of a final disposition of such action or
proceeding the expenses incurred in defending such action or proceeding upon
receipt of an undertaking by or on behalf of the director or officer to repay
such amount as, and to the extent, required by statute. Section 607.0850 of the
FBCA provides that the indemnification and advancement of expense provisions
contained in the FBCA shall not be deemed exclusive of any rights to which a
director or officer seeking indemnification or advancement of expenses may be
entitled.
The Company's Certificate of Incorporation provides, in general, that
the Company shall indemnify, to the fullest extent permitted by Section 607.0850
of the FBCA, any officer or director or any former officer or director.
There is no litigation pending, and neither the registrant nor any of
its directors know of any threatened litigation, which might result in a claim
for indemnification by any director or officer.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
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Item 8. EXHIBITS.
--------
Number Description of Exhibit
- ------ ----------------------
4.1 -- Agreement dated February 1, 2000 by and between Thermacell
Technologies, Inc. and Alan Berkun.
5.1 -- Opinion of Jacobson & Colfin, P.C., counsel to the Company.
5.2 -- Consent of Cherry, Bekaert & Holland, LLP
Item 9. UNDERTAKINGS.
------------
1. The undersigned, Company, hereby undertakes:
(a) To file, during any period in which the Company offers or sells
securities, a post-effective amendment(s) to this registration
statement:
(1) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(2) To reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the
information in the registration statement; and
(3) To 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;
Provided, however, that paragraphs 1(a)(1) and 1(a)(2) 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 Registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(b) 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; and
(c) 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.
2. The undersigned 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
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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.
3. 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 Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission (the "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 Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 of 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.
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SIGNATURES
The Registrant. Pursuant to 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 for filing on 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 Sarasota, Florida on February 3, 2000.
SIGNATURES
THERMACELL TECHNOLOGIES, INC.
By: /s/ John Pidorenko
------------------
John Pidorenko
President and Chief Executive Officer
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/ John Pidorenko President and Chief Executive Officer
- ------------------ (Principal Executive Officer) and February 3, 2000
John Pidorenko Chairman of the Board
/s/ Gerald Couture Vice President and Chief Financial
- ------------------ (Principal Financial Officer) February 3, 2000
Gerald Couture
/s/ Kevin Brennan Controller February 3, 2000
- -----------------
Kevin Brennan
/s/ Kendall B. Stiles, M.D. Director February 3, 2000
- --------------------------
Kendall B. Stiles, M.D.
/s/ Donald Huggins Director February 3, 2000
- ------------------
Donald Huggins
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EXHIBIT-4.1
CONSULTING AGREEMENT - ALAN BERKUN
THERMACELL TECHNOLOGIES, INC.
February 1, 2000
ThermaCell Technologies, Inc.
1125 Commerce Blvd.
Sarasota, FL 34243
Alan Berkun, Esq.
83 Arnold Court
East Rockaway, NY 11518
Re: Engagement
Dear Mr. Berkun:
We are pleased to confirm the arrangements under which Alan Berkun (The
"Consultant") is engaged by ThermaCell Technologies, Inc. (the "Company") to
identify acquisition targets for the Company and to advise the Company in
structuring mergers or other acquisition to which the Company is a party (the
(Transaction").
The Consultant and the Company agree as follows with respect to the
Transaction:
4. Servicing. During the Term (as hereinafter defined), the Consultant shall
render such services to the Company so as assist the Company in identifying
acquisition targets for the Company and advise the Company in structuring
mergers or other acquisitions. Nothing contained herein constitutes a
commitment on the part of the Consultant to find an acquisition target for
the company or, if such a target is found, that any Transaction will be
completed. The Consultant shall not have the power of authority to bind the
Company to any transaction without the Company's prior written consent.
5. Term of Engagement. Either party hereto may terminate this Agreement at any
time after the date hereof, with or without cause, upon fifteen (15) days
written notice to the other party (the "Term").
6. Engagement Fee. Upon the execution of this Agreement, the Company shall pay
to the Consultant a fee (an "Engagement Fee") of 850,000 shares of the
Company's common stock (the "Shares"), which amount shall not be
refundable.
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7. Registration Rights. The Company hereby covenants and agrees to immediately
file, from the date hereof, a registration of Form S-8 with the Securities
and Exchange Commission with respect to the Shares, including a reoffer
prospectus, to the extent required.
8. Further Assurances. In connection with the issuance of the Shares of Common
Stock of the Company to the Consultants pursuant to this Agreement of the
issuance of shares of common stock of the Company to the Consultant as a
Transaction Fee, the Consultant covenant and agrees that he shall execute
and deliver, or cause to be executed and delivered, any and all such
further agreements, instruments, certificates and other documents,
including the Subscription Agreement, a copy of which is annexed hereto as
Annex A, and shall take or cause to be taken any and all such further
action, as the Company may reasonably deem necessary or desirable in order
to carry out the intent and purpose of this Agreement.
9. Indemnification Each party agreed to indemnify and hold the other harmless
form any loss, damage, liability or expense, including reasonable
attorney's fee's and other legal expenses, to which the other party may
become subject arising out of or relating to any act or omission by the
indemnifying party (or any person connected or associated with the
indemnifying party), which is or is alleged to be a violation of any
applicable statues, laws or regulations or arising from the negligence of
willful misconduct of the indemnifying party.
10. Cooperation Confidentiality. During the term of this Agreement, the Company
shall furnish the Consultant with all information, data, or documents
concerning the Company that the Consultant shall reasonably deem
appropriate in connection with his activities hereunder, other than
material non-public information.
11. Notice. All notice, requests demands and other communications under this
Agreement shall be in writing, and shall be deemed to have been duly given
(a) on the date of service, if served personally on the party to whom
notice is to be given, (b) on the day after the date sent by a recognized
overnight courier service with all charges prepaid or billed to the account
for the sender, (c) five (5) days after being deposited in the mail if sent
by first-class air mail, registered or certified, postage prepaid, or (d)
on the day after the date set forth on the transmission receipt when sent
by facsimile transmission to the party being notified at its address or
facsimile number set forth below or such other address or facsimile numbers
as any party hereto shall subsequently notify all other parties hereto in
writing.
(i) If the Consultant:
Alan Berkun, Esq.
83 Arnold Court
East Rockaway, NY 11518
(ii) If to the Company:
ThermaCell Technologies, Inc.
1125 Commerce Blvd.
Sarasota, FL 34243
12. Non-Assignability Binding Effect. Neither this Agreement, nor any of the
rights or obligations of the parties shall be assignable by either party
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hereto without the prior written consent of the other party. Otherwise,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs. Executors, administrators,
personal representatives, successors, and permitted assignees.
13. Choice of Law. This Agreement shall be governed and enforced in accordance
with the laws of the State of New York, without regard to its conflict of
law principles.
ThermaCell Technologies, Inc.
By: /s/ John Pidorenko
-------------------------
John Pidorenko/President, CEO
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EXHIBIT 5.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the use in this Registration Statement on Form S-8 of our report
dated January 18, 2000 with respect to the consolidated financial statements of
Thermacell Technologies, Inc. and Subsidiary for the years ended September 30,
1999 appearing in its Annual Report (Form 10-KSB) for the year ended September
30, 1999, filed with the Securities and Exchange Commission.
/s/ Cherry, Bekaert & Holland, LLP
------------------------------
CHERRY, BEKAERT & HOLLAND, LLP
Certified Public Accountants
Clearwater, Florida
February 3, 2000
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EXHIBIT 5.2
JACOBSON & COLFIN, P.C.
156 Fifth Avenue, Suite 434
New York, New York 10010
February 7, 2000
ThermaCell Technologies, Inc.
1125 Commerce Blvd.
Sarasota, Florida 34243
Attn: John Pidorenko
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen:
We refer to the offering (the "Offering") of 850,000 shares of
common stock, $.0001 par value (the "Common Stock") of Thermacell Technologies,
Inc., a Florida corporation (the "Company") being registered on behalf of the
Company, as described in the Registration Statement on Form S-8 to be filed with
the Securities and Exchange Commission as subsequently amended from time to time
(collectively, the "Registration Statement"):
In furnishing our opinion, we have examined copies of the
Registration Statement and the Exhibits thereto. We have conferred with officers
of the Company and have examined the originals or certified, conformed or
photostatic copies of such records of the Company, certificates of officers of
the Company, certificates of public officials, and such other documents as we
have deemed relevant and necessary under the circumstances as the basis of the
opinion expressed herein. In all such examinations, we have assumed the
authenticity of all documents submitted to me as originals or duplicate
originals, the conformity to original documents of all document copies, the
authenticity of the respective originals of such latter documents, and the
correctness and completeness of such certificates. Finally, we have obtained
from officers of the Company such assurances as we have considered necessary for
the purposes of this opinion.
Based upon and subject to the foregoing and such other matters of
fact and questions of law as we have deemed relevant in the circumstances, and
in reliance thereon, it is our opinion that, when and if (a) the Registration
Statement shall be declared effective by the Securities and Exchange Commission,
as the same may hereafter be amended; and (b) the Securities to be sold for the
account of the Company shall have been sold as contemplated in the Registration
Statement, then all of the Securities, upon execution and delivery of proper
certificates therefor, will be duly authorized, validly issued and outstanding,
fully paid and nonassessable.
We hereby consent to the inclusion of this opinion in the Exhibits
to the Registration Statement.
We are members of the Bar of the State of New York and we do not
express herein any opinion as to any matters governed by any law other than the
law of the State of New York and the Federal laws of the United States.
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This opinion is limited to the matters set forth herein, and may not
be relied upon in any matter by any other person or used for any other purpose
other than in connection with the corporate authority for the issuance of the
Securities pursuant to and as contemplated by the Registration Statement.
Very truly yours,
/s/ Jacobson & Colfin, P.C.
--------------------------------------
JACOBSON & COLFIN, P.C.
c/f/s8therma
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