Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
-----------------
CHEM INTERNATIONAL, INC.
- ---------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 13-3035216
- --------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
201 Route 22, Hillside, New Jersey 07205
- ---------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
CHEM INTERNATIONAL, INC.
STOCK OPTION PLAN
- ----------------------------------------------------------------------------
(Full title of the plan)
E. Gerald Kay
President
CHEM INTERNATIONAL, INC.
201 Route 22
Hillside, New Jersey 07205
- ----------------------------------------------------------------------------
(Name and address of agent for service)
(973) 926-0816
- ---------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
Copies to:
Michael J. Nita, Esq.
Shanley & Fisher, P.C.
131 Madison Avenue
Morristown, New Jersey 07962
(973) 285-1000
Calculation of Registration Fee
- ----------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registra-
registered registered share(1) price(1) tion fee
Common Stock, 1,000,000 $2.625 $2,625,000 $795.46
$.002 par value shares
- -----------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) based on the average of the high and low price per
share as reported on the Nasdaq Small Cap Market on October 6, 1997.
<PAGE>
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Documents relating to the Chem International, Inc. Stock Option Plan
(the "Plan") and containing the information specified in Part I of Form S-8 will
be sent or given to participants in the Plan, as specified by Rule 428(b)(1),
and are not filed 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 the registration statement pursuant to Item 3 of
Part II of Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933, as amended (the
"Securities Act").
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by the registrant
with the Securities and Exchange Commission, are hereby incorporated by
reference:
(i) the registrant's Annual Report on Form 10-KSB for
the fiscal year ended June 30, 1997; and
(ii) the description of the registrant's common stock,
par value $.002 per share (the "Common Stock"),
and its Class A Redeemable Warrants set forth in
the registrant's Registration Statement filed
pursuant to Section 12 of the Securities and
Exchange Act of 1934 (the "Exchange Act") and 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 or 15(d) of the Exchange Act subsequent to the date hereof and prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed modified or superseded for purposes hereof to the extent that a statement
contained herein or in any other subsequently filed document which is also
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
Item 4. Description of Securities.
Not Applicable
Item 5. Interests of Named Experts and Counsel.
<PAGE>
None.
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Company is organized under the laws of the State of Delaware.
Section 145 of the Delaware General Corporation Law permits a Delaware
corporation to indemnify any person who is a party (or is threatened to be made
a party) to any threatened, pending or completed action, suit or proceeding
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he or she is
or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or enterprise. A corporation may similarly
indemnify such person in the case of actions or suits brought by or in the right
of the corporation, except (unless otherwise ordered by the court) that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation.
A corporation may indemnify such person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. Any indemnification shall be made by the corporation only
as authorized in the specific case upon a determination that indemnification is
proper in the circumstances because the person has met the aforesaid standard of
conduct. Such determination shall be made (1) by a majority vote of the
directors who were not parties to the action, suit, or proceeding, whether or
not a quorum, or (2) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (3) by the
stockholders. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits, or otherwise, in defense of any
action, suit or proceeding described above, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred in connection therewith. The
statute also provides that it is not exclusive of any other rights to which
those seeking indemnification may be entitled under any bylaws, agreement, vote
of stockholders or disinterested directors, or otherwise. The Company's By-Laws
provide for the indemnification of its directors and officers to the fullest
extent permitted by law.
<PAGE>
Section 102(b)(7) of the Delaware General Corporation Law allows a
Delaware corporation to limit or eliminate the personal liability of directors
to the corporation and its stockholders for monetary damages for breach of
fiduciary duty as a director. However, this provision excludes any limitation on
liability (1) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (2) for acts or omissions not in good faith or
which involved intentional misconduct or a knowing violation of law, (3) for
intentional or negligent payment of unlawful dividends or stock purchases or
redemptions or (4) for any transaction from which the director derived an
improper benefit. Moreover, while this provision provides directors with
protection against awards for monetary damages for breaches of their duty of
care, it does not eliminate such duty. Accordingly, this provision will have no
effect on the availability of equitable remedies such as an injunction or
rescission based on a director's breach of his or her duty of care. Finally,
this provision applies to an officer of a corporation only if he or she is a
director of such corporation and is acting in his or her capacity as director,
and does not apply to officers of the corporation who are not directors.
The Company's Certificate of Incorporation provides for the
limitation on liability permitted by Section 102(b)(7). The Company maintains
directors and officers' liability insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Restated Certificate of Incorporation of Chem
International, Inc. (incorporated herein by
reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form SB-2, Registration
No. 333-5240.
4.2 By-Laws of Chem International, Inc. (incorporated
herein by reference to Exhibit 3.2 to the
Registrant's Registration Statement on Form SB-2,
Registration No. 333-5240).
4.3 Chem International, Inc. Stock Option Plan (incorporated
herein by reference to Exhibit 10.7 to the Registrant's
Amendment No. 1 to Registration Statement on Form SB-2,
Registration No. 333-5240.
5 Opinion of Shanley & Fisher, P.C.
<PAGE>
23.1 Consent of Shanley & Fisher, P.C. (included in Ex
hibit 5).
23.2* Consent of Moore Stephens, P.C.
24* Powers of Attorney.
- ---------
* Filed herewith
Item 9. Undertakings.
(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) 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.
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S- 3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic 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 that are incorporated by reference in the
registration statement.
<PAGE>
(2) That, for the purposes 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 undersigned registrant hereby undertakes that, for the
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 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 a new registration statement relating to
the securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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.
<PAGE>
SIGNATURES
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 Township of Hillside, State of New Jersey on the 8th day
of October, 1997.
CHEM INTERNATIONAL, INC.
By: E. Gerald Kay
E. Gerald Kay
Chairman of the Board,
President and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Capacity in Which Signed
E. Gerald Kay Chairman of the Board,
E. Gerald Kay President and Director
(principal executive officer)
Eric Friedman Vice President and Treasurer
Eric Friedman (principal financial and
accounting officer)
Robert J. Canarick* Director
Robert J. Canarick
Christina M. Kay* Director
Christina M. Kay
Riva L. Kay* Director
Riva L. Kay
<PAGE>
Leonard Stowe* Director
Leonard Stowe
*E. Gerald Kay hereby signs this Registration Statement on Form S-8 on behalf of
each of the indicated persons for whom he is attorney-in-fact on October 8, 1997
pursuant to a power of attorney filed herewith.
By:E. Gerald Kay
E. Gerald Kay
Attorney-in-Fact
Dated: October 8, 1997
<PAGE>
EXHIBIT INDEX
Exhibit
5 Opinion of Shanley & Fisher, P.C.
23.1 Consent of Shanley & Fisher, P.C. (included
in Exhibit 5)
23.2 Consent of Moore Stephens, P.C.
24 Powers of Attorney
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned hereby constitutes
and appoints E. Gerald Kay, as his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to do any and all acts and things and to execute any and
all instruments and documents which said attorney-in-fact and agent may deem
necessary or desirable to enable Chem International, Inc. (the "Company") to
comply with the Securities Act of 1933, as amended (the "Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission (the
"Commission") thereunder, in connection with the registration under the Act of
shares of common stock of the Company, par value $.002 ("Common Stock"),
issuable by the Company pursuant to the exercise of stock options granted under
the Company's Stock Option Plan, including specifically, but without limiting
the generality of the foregoing, the power and authority to sign the name of the
undersigned to a registration statement under the Securities Act of 1933, as
amended, on an appropriate form covering said shares of Common Stock, and any
amendments to such registration statement, to be filed with the Commission, and
to any and all instruments or documents filed as part of or in connection with
such registration statement or any amendments thereto; and the undersigned
hereby ratifies and confirms all that said attorney and agent shall be or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 7th day of October, 1997.
Christina M. Kay
Name: Christina M. Kay
Title: Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned hereby constitutes
and appoints E. Gerald Kay, as his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to do any and all acts and things and to execute any and
all instruments and documents which said attorney-in-fact and agent may deem
necessary or desirable to enable Chem International, Inc. (the "Company") to
comply with the Securities Act of 1933, as amended (the "Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission (the
"Commission") thereunder, in connection with the registration under the Act of
shares of common stock of the Company, par value $.002 ("Common Stock"),
issuable by the Company pursuant to the exercise of stock options granted under
the Company's Stock Option Plan, including specifically, but without limiting
the generality of the foregoing, the power and authority to sign the name of the
undersigned to a registration statement under the Securities Act of 1933, as
amended, on an appropriate form covering said shares of Common Stock, and any
amendments to such registration statement, to be filed with the Commission, and
to any and all instruments or documents filed as part of or in connection with
such registration statement or any amendments thereto; and the undersigned
hereby ratifies and confirms all that said attorney and agent shall be or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 7th day of October, 1997.
Riva L. Kay
Name: Riva L. Kay
Title: Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned hereby constitutes
and appoints E. Gerald Kay, as his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to do any and all acts and things and to execute any and
all instruments and documents which said attorney-in-fact and agent may deem
necessary or desirable to enable Chem International, Inc. (the "Company") to
comply with the Securities Act of 1933, as amended (the "Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission (the
"Commission") thereunder, in connection with the registration under the Act of
shares of common stock of the Company, par value $.002 ("Common Stock"),
issuable by the Company pursuant to the exercise of stock options granted under
the Company's Stock Option Plan, including specifically, but without limiting
the generality of the foregoing, the power and authority to sign the name of the
undersigned to a registration statement under the Securities Act of 1933, as
amended, on an appropriate form covering said shares of Common Stock, and any
amendments to such registration statement, to be filed with the Commission, and
to any and all instruments or documents filed as part of or in connection with
such registration statement or any amendments thereto; and the undersigned
hereby ratifies and confirms all that said attorney and agent shall be or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 7th day of October, 1997.
Robert J. Canarick
Name: Robert J. Canarick
Title: Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned hereby constitutes
and appoints E. Gerald Kay, as his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to do any and all acts and things and to execute any and
all instruments and documents which said attorney-in-fact and agent may deem
necessary or desirable to enable Chem International, Inc. (the "Company") to
comply with the Securities Act of 1933, as amended (the "Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission (the
"Commission") thereunder, in connection with the registration under the Act of
shares of common stock of the Company, par value $.002 ("Common Stock"),
issuable by the Company pursuant to the exercise of stock options granted under
the Company's Stock Option Plan, including specifically, but without limiting
the generality of the foregoing, the power and authority to sign the name of the
undersigned to a registration statement under the Securities Act of 1933, as
amended, on an appropriate form covering said shares of Common Stock, and any
amendments to such registration statement, to be filed with the Commission, and
to any and all instruments or documents filed as part of or in connection with
such registration statement or any amendments thereto; and the undersigned
hereby ratifies and confirms all that said attorney and agent shall be or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 7th day of October, 1997.
Leonard Stowe
Name: Leonard Stowe
Title: Director
EXHIBIT 5
Shanley & Fisher, P.C.
131 madison Avenue
Morristown, New Jersey 07962-1979
October 8, 1997
Chem International, Inc.
201 Route 22
Hillside, New Jersey 07205
Ladies and Gentlemen:
We have acted as special counsel to Chem International, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing under
the Securities Act of 1933, as amended (the "Act"), of a Registration Statement
on Form S-8 (the "Registration Statement") relating to the offer and sale of up
to 1,000,000 shares of the Company's common stock, par value $.002 per share
(the "Shares") pursuant to the Company's Stock Option Plan ("Stock Option
Plan").
For purposes of this opinion, we have examined originals or copies,
certified or otherwise, identified to our satisfaction, of the Registration
Statement, together with exhibits filed as a part thereof, and all such other
documents, records, certificates, including certificates of public officials,
and other instruments as we have deemed necessary or appropriate.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing
under the laws of the State of Delaware.
<PAGE>
2. The Shares have been duly authorized and, when sold in the
manner and for the consideration contemplated by the Stock
Option Plan and the Registration Statement, will be validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name therein. By giving the
foregoing consent, we do not admit that we are persons whose consent is required
under Section 7 of the Act.
Very truly yours,
SHANLEY & FISHER, P. C.
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders of
Chem International, Inc.
We hereby consent to incorporation by reference in the Registration
Statement of Form S-8 of Chem International, Inc. and Subsidiaries of our report
dated September 10, 1997, relating to the consolidated financial statements of
Chem International, Inc. and Subsidiaries included in the Annual Report (Form
10-KSB) for the year ended June 30, 1997.
We also consent to the reference to our firm under the caption
"Experts" in the Form S-8.
MOORE STEPHENS, P. C.
Certified Public Accountants.
Cranford, New Jersey
October 9, 1997
<PAGE>
