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As filed with the Securities and Exchange Commission on December 7, 1999
Registration No. 33-_________________________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DEL LABORATORIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 13-1953103
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
178 EAB PLAZA, UNIONDALE, NEW YORK 11556
(Address of Principal Executive Offices) (Zip Code)
DEL LABORATORIES, INC. 1994 STOCK PLAN, AS AMENDED AND RESTATED
(Full title of the plan)
DAN K. WASSONG
CHAIRMAN OF THE BOARD, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
DEL LABORATORIES, INC.
178 EAB PLAZA
UNIONDALE, NEW YORK 11556
(Name and address of agent for service)
(516) 844-2000
(Telephone number, including area code, of agent for service)
COPY TO:
LAWRENCE G. GRAEV, ESQ.
O'SULLIVAN GRAEV & KARABELL, LLP
30 ROCKEFELLER PLAZA
NEW YORK, NEW YORK 10112
(212) 408-2400
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE REGISTERED OFFERING PROPOSED AGGREGATE OFFERING
REGISTERED PRICE PER UNIT (1) PRICE
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Common Stock, par value 400,000 shares $8.63 $3,452,000.00
$1.00 per share
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(1) The Proposed Maximum Offering Price per Share was estimated pursuant to
Rule 457(h) under the Securities Act of 1933, as amended. 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 December 2, 1999, which
average was $8.63. The number referenced above represents a weighted
average of the foregoing estimates.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
will be sent or given to participating employees as specified by Rule 428(b)(1).
Such documents are not being filed with the Securities and Exchange Commission
(the "Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. Such documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Form, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with 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, 1998;
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1999;
(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,
1998; 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
Not applicable.
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.
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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
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EXHIBIT DESCRIPTION
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4.1 1994 Stock Plan, as amended and restated, filed as
Annex A to the Registrant's proxy statement dated
April 27, 1999, filed with the Commission on such
date, which Annex is incorporated herein by
reference.
5.1 Opinion of O'Sullivan Graev & Karabell, LLP, filed
herewith.
15 Not Applicable.
23.1 Consent of KPMG 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 II-5 of this Registration Statement).
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II-2
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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.
II-3
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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.
II-4
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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 Uniondale, State of New York, on this 7th day of
December, 1999.
DEL LABORATORIES, INC.
By: /s/ DAN K. WASSONG
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Dan K. Wassong
Chairman of the Board, President
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below under the heading "Signature" constitutes and appoints Dan K.
Wassong, Enzo J. Vialardi and Gene L. Wexler or any of them, 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
or all Registration Statements on Form S-8 with respect to any securities to be
offered and issued by Del Laboratories, Inc., a Delaware corporation (the
"Registrant"), pursuant to any employee benefit plan (as such term is defined in
the General Instructions to Form S-8) of the Registrant and any or all
amendments to any such Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, granting unto
said attorneys-in-fact and agents, each acting alone, 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 for all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, 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.
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Chairman of the Board,
/s/ DAN K. WASSONG President and Chief
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Dan K. Wassong (Principal Executive Officer) November 30, 1999
Executive Vice President and Chief November 30, 1999
/s/ ENZO J. VIALARDI Financial Officer
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Enzo J. Vialardi Accounting Officer)
/s/ MARTIN E. REVSON Director November 30, 1999
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Martin E. Revson
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II-5
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/s/ CHARLES J. HINKATY Director November 30, 1999
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Charles J. Hinkaty
/s/ ROBERT A. KAVESH Director November 30, 1999
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Robert A. Kavesh
/s/ STEVEN KOTLER Director November 30, 1999
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Steven Kotler
/s/ MARCELLA MAXWELL Director November 30, 1999
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Marcella Maxwell
/s/ GEORGE LINDEMANN Director November 30, 1999
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George Lindemann
/s/ JACK FUTTERMAN Director November 30, 1999
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Jack Futterman
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II-6
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EXHIBIT INDEX
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EXHIBIT DESCRIPTION
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5.1 Opinion of O'Sullivan Graev & Karabell, LLP, filed herewith.
23.1 Consent of KPMG 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 II-5.
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EXHIBIT 5.1
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December 7, 1999
Del Laboratories, Inc.
178 EAB Plaza
Uniondale, New York 11556
DEL LABORATORIES, INC.
400,000 SHARES OF COMMON STOCK, $1.00 PAR VALUE
Dear Sirs:
We have acted as counsel to Del Laboratories, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, of 400,000 shares (the "Shares") of Common
Stock, $1.00 par value, of the Company for issuance pursuant to the Company's
1994 Stock Plan, as amended and restated (the "Plan").
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary for the purposes of this
opinion. In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
Based upon the foregoing, we are of the opinion that the issuance and
sale of the Shares pursuant to the Plan have been duly authorized and, when
issued, delivered and paid for in accordance with the provisions of the Plan,
the Shares will be validly issued, fully paid and nonassessable.
We are admitted to the Bar of the State of New York and we express no
opinion as to the laws of any other jurisdiction other than the General
Corporation Law of the State of Delaware and the federal laws of the United
States of America.
We hereby consent to the inclusion of this opinion as Exhibit 5 to the
Registration Statement on Form S-8 being filed by the Company to register the
Shares. In giving consent, we do not thereby admit that we are in the category
of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ O'Sullivan Graev & Karabell, LLP
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EXHIBIT 23.1
The Board of Directors
Del Laboratories, Inc.:
We consent to incorporation by reference in the registration statement on
Form S-8 of Del Laboratories, Inc. of our report dated February 19, 1999,
relating to the consolidated balance sheets of Del Laboratories, Inc. and
subsidiaries as of December 31, 1998 and 1997, and the related consolidated
statements of earnings, retained earnings and cash flows for each of the
years in the three-year period ended December 31, 1998, and the related
schedule, which report appears in the December 31, 1998 annual report on
Form 10-K of Del Laboratories, Inc.
/s/ KPMG LLP
Melville, New York
December 3, 1999
