<PAGE>
As filed with the Securities and Exchange Commission on December 6, 1995
Registration No. 33-__________
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------------
DEL LABORATORIES, INC.
(Exact name of Registrant as specified in its charter)
----------------------------------
DELAWARE 13-1953103
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
565 BROAD HOLLOW ROAD, FARMINGDALE, NEW YORK 11735
(Address of Principal Executive Offices) (Zip Code)
DEL LABORATORIES, INC. 1994 STOCK PLAN
(Full title of the plan)
DAN K. WASSONG
CHAIRMAN OF THE BOARD, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
DEL LABORATORIES, INC.
565 BROAD HOLLOW ROAD
FARMINGDALE, NEW YORK 11735
(Name and address of agent for service)
(516) 293-7070
(Telephone number, including area code, of agent for service)
COPY TO:
Robert H. Haines, Esq.
Zimet, Haines, Friedman & Kaplan
460 Park Avenue
New York, New York 10022
(212) 486-1700
----------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED PRICE PER UNIT(1) PRICE REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 504,950 shares $19.27 $9,730,387 $ 3,356
$1.00 per share
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Proposed Maximum Offering Price per Share was estimated pursuant to
Rule 457(h) under the Securities Act of 1933, as amended. With respect to
316,977 shares of Common Stock subject to outstanding options to purchase
Common Stock under the Registrant's 1994 Stock Plan, the Proposed Maximum
Offering Price per Share was estimated by reference to the exercise price
of such options. The weighted average exercise price per share of the
316,977 shares subject to outstanding options is $19.13. With respect to
187,973 shares of Common Stock issuable pursuant to options available for
future grant under the 1994 Stock Plan, the estimated Proposed Maximum
Offering Price per Share was estimated by reference to the average of the
high and low prices of the Registrant's Common Stock reported on the
American Stock Exchange on November 29, 1995, which average was $19.50.
The number referenced above represents a weighted average of the foregoing
estimates.
<PAGE>
EXPLANATORY NOTE
This Registration Statement relates to 504,950 shares of common stock, par
value $1.00 per share ("Common Stock"), of Del Laboratories, Inc. (the
"Registrant"), authorized for issuance under the Registrant's 1994 Stock Plan
(the "1994 Plan"). These include 362,850 shares originally authorized for
issuance under the 1994 Plan as approved and adopted by the Registrant's
stockholders on May 26, 1994 (as adjusted for a 4-for-3 stock split in June 1994
and for a 2-for-1 stock split in June 1995) and 142,100 additional shares that,
pursuant to the terms of the 1994 Plan, have become available for grant
thereunder as a result of termination of stock options previously granted under
other stock option plans of the Registrant and delivery of shares in payment of
the exercise price of previously outstanding options and tax liability arising
therefrom.
-2-
<PAGE>
PART II
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated into this registration statement
by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1995;
(c) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since December 31, 1994; and
(d) The description of the Registrant's Common Stock, par value $1.00
per share, contained in the Registrant's Registration Statement on Form 8C dated
August 11, 1967, as amended by Amendment No. 1 on Form 8 dated June 30, 1980,
filed pursuant to Section 12 of the Exchange Act.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 in this registration statement and to be a part
hereof from the date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the securities being offered hereunder has been
passed upon by the law firm of Zimet, Haines, Friedman & Kaplan. Robert H.
Haines, a member of such firm, is a director of the Registrant.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of Delaware grants
each corporation organized thereunder the power to indemnify its officers,
directors, employees and agents on certain conditions against liabilities
arising out of any action or proceeding to which any of them is a party by
reason of being such officer, director, employee or agent. Section 102(b)(7) of
the Delaware General Corporation Law permits a Delaware corporation, with the
approval of its stockholders, to include within its certificate of incorporation
a provision eliminating or limiting the personal liability of its directors to
that corporation or its stockholders for monetary damages resulting from certain
breaches of the directors' fiduciary duty of care, both in suits by or on behalf
of the corporation and in actions by stockholders of the corporation.
-3-
<PAGE>
The Registrant's certificate of incorporation, as amended (the
"Certificate of Incorporation"), includes an Article which allows the Registrant
to take advantage of Section 102(b)(7) of the Delaware General Corporation Law.
The Certificate of Incorporation also provides for the indemnification, to the
fullest extent permitted by the Delaware General Corporation Law, of directors
and officers of the Registrant against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with actions,
suits or proceedings, whether civil, criminal, administrative or investigative,
in which such person may become involved by reason of the fact that he or she is
or was serving as a director or officer of the Registrant. The Certificate of
Incorporation also provides that the Registrant may indemnify, in the same
manner, any of its employees or agents or any person who is serving at the
request of the Registrant as a director, officer, employee or agent of another
entity.
The Registrant's By-laws contain provisions concerning the
indemnification of officers and directors which are substantially identical to
those contained in the Certificate of Incorporation.
The Registrant maintains liability insurance covering its
directors, officers, employees and agents with respect to certain liabilities,
not including liabilities under the Securities Act of 1933, as amended, which
they may incur in connection with their serving as such directors, officers,
employees or agents.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
EXHIBIT DESCRIPTION
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4.1 1994 Stock Plan, filed as Annex A to the Registrant's proxy
statement dated April 25, 1994, filed with the Commission on
such date, which Annex is incorporated herein by reference.
4.2 Form of Non-Incentive Stock Option Agreement under the 1994
Stock Plan, filed herewith.
4.3(a) Certificate of Incorporation of the Registrant as filed
October 25, 1961 and as amended May 9, 1963, April 18, 1966,
May 23, 1972, July 22, 1977, July 3, 1984, July 18, 1985 and
June 22, 1987, filed as Exhibit 1 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1993, which Exhibit is incorporated herein by reference.
4.3(b) Certificate of Amendment of the Certificate of Incorporation
of the Registrant, as filed May 27, 1994, filed as Exhibit 1
to the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994, which Exhibit is incorporated
herein by reference.
4.3(c) Certificate of Amendment of the Certificate of Incorporation
of the Registrant, as filed on June 1, 1995, filed as Exhibit
1 to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1995, which Exhibit is incorporated
herein by reference.
4.5 By-laws of the Registrant, as amended, filed as Exhibit 2 to
the Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1995, which Exhibit is incorporated
herein by reference.
-4-
<PAGE>
EXHIBIT DESCRIPTION
------- -----------
5.1 Opinion of Zimet, Haines, Friedman & Kaplan, filed herewith.
15 Not Applicable.
23.1 Consent of KPMG Peat Marwick LLP, filed herewith.
23.2 Consent of counsel, contained in the opinion filed as Exhibit
5.1 hereto.
24.1 Power of Attorney (see page 7 of this Registration
Statement).
Item 9. UNDERTAKINGS
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, as amended (the
"Securities Act");
(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;
(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 (1)(i) and (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
Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
-5-
<PAGE>
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
Insofar as indemnification for liabilities arising under the Securities Act
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 Securities 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 persons 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 and will be governed by the final
adjudication of such issue.
-6-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Farmingdale, State of New York, on this 5th day of
December, 1995.
DEL LABORATORIES, INC.
By: /S/ Dan K. Wassong
----------------------------------
Dan K. Wassong
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints each of Dan K. Wassong and Melvyn C.
Goldstein, his true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this registration
statement, and to file the same, with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
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 date indicated.
Chairman of the Board,
/s/ Dan K. Wassong President and Chief
- ----------------------------- Executive Officer
Dan K. Wassong (Principal Executive December 5, 1995
Officer)
/s/ Melvyn C. Goldstein Vice President - Finance
- ----------------------------- (Principal Financial and December 5, 1995
Melvyn C. Goldstein Accounting Officer)
-7-
<PAGE>
/s/ Martin E. Revson
- ---------------------------- Director December 5, 1995
Martin E. Revson
/s/ Robert H. Haines
- ---------------------------- Director December 5, 1995
Robert H. Haines
/s/ Charles J. Hinkaty
- ---------------------------- Director December 5, 1995
Charles J. Hinkaty
/s/ Robert A. Kavesh
- ---------------------------- Director December 5, 1995
Robert A. Kavesh
/s/ Steven Kotler
- ---------------------------- Director December 5, 1995
Steven Kotler
/s/ Marcella Maxwell
- ---------------------------- Director December 5, 1995
Marcella Maxwell
-8-
<PAGE>
EXHIBIT INDEX
Exhibit Description
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4.2 Form of Non-Incentive Stock Option Agreement under the 1994 Stock
Plan, filed herewith.
5.1 Opinion of Zimet, Haines, Friedman & Kaplan, filed herewith.
23.1 Consent of KPMG Peat Marwick LLP, filed herewith.
23.2 Consent of counsel, contained in the opinion filed as Exhibit 5.1
hereto.
24.1 Power of Attorney (see page 7 of this Registration Statement).
<PAGE>
EXHIBIT 4.2
CERTIFICATE OF OPTION
Date:_____________________________
Name: _______________________________________________
Address:_____________________________________________
_________
_________
Dear _____________________________________:
The undersigned is pleased to inform you that the Compensation Committee of
Del Laboratories, Inc. (the "Corporation") has granted to you under the
Corporation's 1994 Stock Plan (the "1994 Plan") an option (the "Option") to
purchase ______ shares of the Corporation's Common Stock, par value $l.00 per
share ("Shares"), as follows:
1. NUMBER OF SHARES UNDER OPTION; TYPE OF OPTION. You are granted hereby
an Option to purchase a maximum of _______ shares. The Option shall be a
Non-Incentive Stock Option (as that term is defined in the 1994 Plan).
2. EXERCISE PRICE. The exercise price of the Option granted hereby shall
be $ ________ per Share. Payment of the exercise price may be made (i) in cash,
(ii) by delivery of shares of Common Stock then owned by you at the time of
exercise, (iii) in installments, if permitted by the Compensation Committee on
such terms and conditions as it may establish or (iv) any combination of the
foregoing.
3. RESTRICTED PERIOD. The Restricted Period (as that term is defined in
the 1994 Plan) with respect to any of the Shares subject to the Option shall be
_______________ after exercise of the Option which results in the issuance of
such Shares.
4. EXERCISE OF OPTION.
(a) Except as otherwise provided in the 1994 Plan and this Certificate of
Option, the Option is exercisable over a period of ten years from the date
hereof (the "Option Period") in accordance with the following schedule:
<PAGE>
Percent of Shares Subject
Date to Option Purchasable
---- -------------------------
Subject to the foregoing and paragraph (b) below, the Option may be exercised
from time to time during the Option Period as to the total number of Shares
allowable under this Paragraph 4, or any lesser amount thereof.
(b) Except as otherwise provided in this paragraph, the Option may be
exercised, to the extent provided in paragraph (a) above, only during the
continuance of your employment by the Company or any Subsidiary of the Company
(as defined in the 1994 Plan) and within three months after the date of
termination of employment, but in any event not beyond the end of the Option
Period. If your employment is terminated by the Company or a Subsidiary for
cause, then the Option shall no longer be exercisable immediately upon the date
of termination of employment. If termination of employment results from death,
the Option may be exercised by the person or persons legally entitled to do so,
to the extent provided in paragraph (a) above (determined as of the date of
death), at any time within six months after the date of death, notwithstanding
whether the six month period extends beyond the expiration of the Option Period.
(c) At such time as you desire to exercise the Option granted hereby,
in whole or in part, you will be provided with an Exercise Form upon request.
Your signature at the place provided on said Exercise Form will evidence your
election to purchase shares of Common Stock pursuant to the terms and subject to
the conditions and limitations contained in the 1994 Plan, in this Certificate
of Option and in said Exercise Form. Nothing contained herein shall be deemed
to require the Corporation to issue any fractional shares.
5. OTHER TERMS. The Option shall be subject to any other applicable
terms and conditions set forth in the 1994 Plan, a copy of which is annexed
hereto.
Very truly yours,
DEL LABORATORIES, INC.
By:
---------------------
Chairman of the Board
------------------------
Optionee
Attest:
- ------------------------
Vice President - Finance
<PAGE>
Exhibit 5.1
ZIMET, HAINES, FRIEDMAN & KAPLAN
460 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 486-1700
December 5, 1995
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D. C. 20549-1004
Re: Del Laboratories, Inc.
----------------------
Gentlemen:
We have acted as counsel to Del Laboratories, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
Registration Statement on Form S-8 relating to the registration under the
Securities Act of 1933, as amended, and the rules and regulations thereunder, of
504,950 shares of Common Stock, par value $1.00 per share ("Common Stock"), of
the Company issuable pursuant to awards ("Awards") granted under the Company's
1994 Stock Plan (the "Plan").
In connection with this opinion, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the Certificate of
Incorporation of the Company, the By-Laws of the Company, each as amended to
date, the minutes and other records of the proceedings of the Board of Directors
and of the stockholders of the Company, the Plan and such other documents,
corporate and public records, agreements, and certificates of officers of the
Company and of public and other officials, and we have considered such questions
of law, as we have deemed necessary as a basis for the opinions hereinafter
expressed. In such examination we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies. As to any facts material to this opinion, we
have relied upon statements and representations of officers and other
representatives of the Company.
Based on and subject to the foregoing, we hereby advise you that, in
our opinion, the issuance and sale of shares of Common Stock in accordance with
the terms and subject to the conditions set forth in the agreements pursuant to
which the Awards are granted (the "Agreements") have been duly authorized and,
when the consideration
<PAGE>
for any such shares shall have been received by the Company and shares are
issued pursuant to such Awards in accordance with the terms and subject to the
conditions set forth in the Agreements, such shares of Common Stock will
be validly issued, fully paid and nonassessable.
We are lawyers admitted to practice only in the State of New York.
Although none of the members of this firm is admitted to the bar of the State of
Delaware, in rendering this opinion we have considered the General Corporation
Law of such State. Accordingly, the foregoing opinion is limited solely to the
effect of the laws of New York and of the United States of America, and the
General Corporation Law of the State of Delaware.
We hereby consent to the reference to our firm in the Company's
Registration Statement on Form S-8.
Very truly yours,
/s/ Zimet, Haines, Friedman & Kaplan
ZIMET, HAINES, FRIEDMAN
& KAPLAN
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Del Laboratories, Inc.:
We consent to the use of our reports incorporated herein by reference in the
registration statement on Form S-8.
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Jericho, New York
December 1, 1995
