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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 29, 1997
Registration Statement No.
----
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
JLM INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 06-1163710
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
8675 HIDDEN RIVER PARKWAY
TAMPA, FLORIDA 33637
(813) 632-3300
(Address, including zip code,
of Registrant's principal executive offices)
JLM INDUSTRIES, INC.
LONG TERM INCENTIVE PLAN
(Full title of the plan)
JOHN L. MACDONALD, PRESIDENT
JLM INDUSTRIES, INC.
8675 HIDDEN RIVER PARKWAY
TAMPA, FLORIDA 33637
(813) 632-3300
(Name, address, including zip code, and telephone number
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
to be Registered Registered Price Per Share(1) Offering Price Registration Fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock. . . . . . . 750,000 shs. $10.19 $7,642,500 $2,315.91
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</TABLE>
(1) Estimated pursuant to Rule 457(c), solely for the purpose of
calculating the registration fee, based upon the average of the high and
low prices for the common stock reported by the Nasdaq National Market
on July 24, 1997.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
By this reference, the following documents filed or to be filed by JLM
Industries, Inc. (the "Company") with the Securities and Exchange Commission
(the "Commission") are incorporated into and made a part of this Registration
Statement:
1. The Company's Prospectus as filed with the Commission under Rule
424(b) of the Securities Act of 1933, which is a part of the
Company's Registration Statement on Form S-1 (Registration
Statement No. 333-27843), as amended, contains the Company's
audited consolidated financial statements for the fiscal year
ended December 31, 1996 (pages F-1 through F-22, inclusive) and
a description of the Company's common stock (pages 42 through 46,
inclusive), which is incorporated by reference in the Company's
Registration Statement on Form 8-A as filed with the Commission
under the Securities Exchange Act of 1934 (Registration
Statement No. 000-22687).
2. All documents filed by the Company with the Commission subsequent
to the date of this Registration Statement under Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 into and made a part of this Registration Statement
from the date of filing of such documents with the Commission.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the General Corporation Law of the State of Delaware
(the "DGCL") provides that a Delaware corporation may indemnify any person who
was or 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 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,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him 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 cause to believe his conduct was
unlawful.
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DGCL Section 145(b) provides that a Delaware corporation may indemnify
any person who was or is a party, or is threatened to be made a party to any
threatened, pending or completed action, by or in the right of the corporation
to procure a judgment in its favor by reason of the fact that such person acted
in any of the capacities set forth above, against expenses actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted under similar standards, except that no
indemnification may 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 unless and
only to the extent that the court in which such action or suit was brought shall
determine that despite the adjudication of liability, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
DGCL Section 145 further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue, or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him or
incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
such liabilities under such Section 145.
DGCL Section 102(b)(7) provides that a corporation in it original
certificate of incorporation or an amendment thereto validly approved by
stockholders may eliminate or limit personal liability of members of its board
of directors or governing body for breach of a director's fiduciary duty.
However, no such provision may eliminate or limit the liability of a director
for breaching his duty of loyalty, failing to act in good faith, engaging in
intentional misconduct or knowingly violating a law, paying a dividend or
approving a stock repurchase which was illegal, or obtaining an improper
personal benefit. A provision of this type has no effect on the availability of
equitable remedies, such as an injunction or recission, for breach of fiduciary
duty. The Company's Certificate of Incorporation (as to be in effect after
completion of the Offering to which this Registration Statement relates)
contains such a provision.
The Company's Bylaws (as to be in effect after completion of the
Offering to which this Registration Statement relates) further provides that the
Company may indemnify its officers and directors and, to the extent authorized
by the Board of Directors, employees and agents of the Company, to the fullest
extent permitted by and in the manner permissible under the laws of the State of
Delaware.
In addition, prior to the completion of the Offering, the Company
intends to enter into agreements (the "Indemnification Agreements") with each of
the directors and certain officers of the Company pursuant to which the Company
will agree to indemnify each such person against claims, liabilities, damages,
expenses, losses, costs, penalties or amounts paid in settlement (collectively,
"Losses") incurred by such person and arising out of his capacity or service as
a director, officer, employee and/or agent of the Company to the maximum extent
permitted by applicable law. In addition, each such person shall be entitled to
an advance of expenses to the maximum extent authorized or permitted by law to
meet the obligations indemnified against. The Indemnification Agreements also
obligate the Company to purchase and maintain insurance for the benefit and on
behalf of each of its directors insuring such director in or arising out of his
capacity as a director, officer, employee and/or agent of the Company. The
Company has purchased such insurance, which provides coverage with respect to
liabilities that may arise under the Securities Act of 1933 and against which
such persons might not be indemnified by the Company.
The underwriters also will agree to indemnify the directors and officers
of the Company against certain liabilities as set forth in Section 7(c) of the
Underwriting Agreement.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
4.1 Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1, as amended, Registration Statement No. 333-27843).
4.2 Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.4 to the Company's
Registration Statement on Form S-1, as amended, Registration Statement No. 333-27843).
4.3 Form of Common Stock Certificate (incorporated by reference to Exhibit 4 to the Company's Registration
Statement on Form S-1, as amended, Registration Statement No. 333-27843).
5 Opinion of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Professional Association, as to the
legality of the Common Stock being registered.
23.1 Consent of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Professional Association (contained in
Exhibit 5).
23.2 Consent of Deloitte & Touche LLP.
</TABLE>
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;
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(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 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.
(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 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 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.
(h) 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 provisions described in
Item 6, 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 Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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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 City of Tampa, State of Florida, on the 29th day of July,
1997.
JLM Industries, Inc.
By: /s/ John L. Macdonald
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John L. Macdonald
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers
and directors of JLM Industries, Inc., a Delaware corporation, for himself and
not for one another, does hereby constitute and appoint John L. Macdonald, John
T. White and Frank A. Musto, each of them, a true and lawful attorney in his
name, place and stead, in any and all capacities, to sign his name to any and
all amendments, including post-effective amendments, to this registration
statement, with respect to the proposed issuance, sale and delivery of shares of
its Common Stock, and to cause the same to be filed with the Securities and
Exchange Commission, granting unto said attorneys and each of them full power
and authority to do and perform any act and thing necessary and proper to be
done in the premises, as fully to all intents and purposes as the undersigned
could do if personally present, and each of the undersigned for himself hereby
ratifies and confirms all that said attorneys or any one of them shall lawfully
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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ John L. Macdonald President, Chief Executive Officer July 29, 1997
- ------------------------------------- and Director
John L. Macdonald (Principal Executive Officer)
/s/ Frank A. Musto Chief Financial Officer, Vice July 29, 1997
- ------------------------------------- President and Director (Principal
Frank A. Musto Financial Officer and Principal
Accounting Officer)
/s/ Thaddeus J. Lelek July 29, 1997
- ------------------------------------- Vice President and Director
Thaddeus J. Lelek
/s/ Wilfred J. Kimball July 29, 1997
- ------------------------------------- Vice President and Director
Wilfred J. Kimball
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page No.
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<S> <C> <C>
4.1 Restated Certificate of Incorporation of the Company (incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement on Form S-1, as amended,
Registration Statement No. 333-27843).
4.2 Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit
3.4 to the Company's Registration Statement on Form S-1, as amended,
Registration Statement No. 333-27843).
4.3 Common Stock Certificate (incorporated by reference to Exhibit 4 to the
Company's Registration Statement on Form S-1, as amended, Registration Statement
No. 333-27843).
5 Opinion of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Professional
Association, as to the legality of the Common Stock being registered.
23.1 Consent of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Professional
Association (contained in Exhibit 5).
23.2 Consent of Deloitte & Touche LLP.
</TABLE>
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EXHIBIT 5
July 29, 1997
Securities and Exchange Commission
450 5th Street, N.W.
Judiciary Plaza
Washington, DC 20549
Re: JLM Industries, Inc.
Long Term Incentive Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
We have represented JLM Industries, Inc. (the "Company") in connection
with the Company's Registration Statement on Form S-8 (the "S-8 Registration
Statement") relating to the offering by the Company (the "Offering") of 750,000
shares of the Company's Common Stock under the Company's Long Term
Incentive Plan (the "Plan"). This opinion is being provided as Exhibit 5
to the S-8 Registration Statement.
In our capacity as counsel to the Company in connection with the S-8
Registration Statement and the Offering, we have examined and are familiar
with: (1) the Company's Certificate of Incorporation and Bylaws, each as
currently in effect, (2) the Plan, (3) the S-8 Registration Statement and (4)
such other corporate records and documents and instruments as in our opinion are
necessary or relevant as the basis for the opinions expressed below.
As to various questions of fact material to our opinion, we have relied
without independent investigation on statements or certificates of officials
and representatives of the Company, the Department of State of the State of
Delaware and others. In all such examinations, we have assumed the genuineness
of all signatures on original and certified documents and the conformity to
original and certified documents of all copies submitted to us as conformed,
photostatic or other exact copies.
We express no opinion as to the law of any jurisdiction other than the
General Corporation Law of the State of Delaware and the federal laws of the
United States of America.
Based upon and in reliance on the foregoing, we are of the opinion that:
<PAGE> 2
SECURITIES AND EXCHANGE COMMISSION JULY 29, 1997
PAGE 2
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1. The Company is a validly existing corporation in good standing
under the laws of the State of Delaware.
2. The Plan has been duly and legally authorized by all required
corporate action.
3. When the following events shall have occurred:
a. the S-8 Registration Statement shall have become
effective in accordance with the Securities Act of
1933, as amended;
b. the shares of Common Stock shall have been offered and
subscribed for as contemplated in the Plan;
c. the options covering shares of Common Stock shall have
been granted and exercised as contemplated in the Plan;
d. the consideration specified in the Plan and (i) in the
subscription areement for the purchase of Common Stock
and (ii) in the intrument of grant covering options
granted under the Plan, as the case may be, shall have
been received; and
e. the certificates representing such shares shall have
been duly executed, counter-signed and issued by or on
behalf of the Company,
the shares of Common Stock so offered and sold in the Offering will be duly
authorized, validly issued, fully paid and non-assessable shares of the capital
stock of the Company.
This firm hereby consents to the filing of this opinion as an Exhibit to
the S-8 Registration Statement.
Sincerely,
TRENAM, KEMKER, SCHARF, BARKIN,
FRYE, O'NEILL & MULLIS
Professional Association
By: /s/ J. Cary Ross, Jr.
-----------------------
J. Cary Ross, Jr.
<PAGE> 1
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Registration Statement of JLM Industries, Inc. on
Form S-8 of our report dated February 19, 1997 (July 3, 1997 as to Note 18),
appearing in the Registration Statement on Form S-1 (Registration Statement
No. 333-27843) of JLM Industries, Inc.
DELOITTE & TOUCHE LLP
Tampa, Florida
July 29, 1997
