As filed with the Securities and Exchange Commission on September 19, 2000
REGISTRATION NO.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
DYNASIL CORPORATION OF AMERICA
(Exact name of registrant as specified in its charter)
NEW JERSEY 22-1734088
(State or other jurisdiction of (I.R.S. Employer identification No.)
incorporation or organization)
385 COOPER ROAD
WEST BERLIN, NEW JERSEY 08091
(Address of principal executive offices)
1996 STOCK INCENTIVE PLAN
1999 STOCK INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
--------------------------------
(Full title of the Plan)
John Kane, Chief Financial Officer
Dynasil Corporation of America
385 Cooper Road
West Berlin, New Jersey 08091
(856) 797-4600
--------------------------------
(Name, address and telephone number, including area code, of agent for service)
with a copy to:
STEPHEN M. ROBINSON, ESQ.
STEPHEN M. ROBINSON, P.A.
172 Tuckerton Road
Medford, New Jersey 08055
(856) 596-5530
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Securities Amount Offering Aggregate Amount of
to be Registered to be Price Offering Registration
Registered Per Unit Price Fee
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Common Stock, $.0005
par value (2)(3) 58,723 shares $ 1.50 (1) $ 88,085 $ 23.26
Common Stock, $.0005
par value (2)(4) 450,000 shares $ 1.50 (1) 675,000 $178.20
Common Stock, $.0005
par value (5) 94,261 shares $ 1.28 (6) $120,654 $ 31.85
Common Stock, $.0005
par value (7) 9,274 shares $ .25 $ 2,319 $ .62
TOTAL REGISTRATION FEE $ 233.93
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(1) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of $1.50 per share (the
average of the high and low prices of the Registrant's common stock as
reported on the OTC Bulletin Board on September 19, 2000) for the
58,723 shares reserved for issuance under the 1996 Stock Incentive
Plan ("1996 Plan") and for 450,000 shares reserved for issuance
under the 1999 Stock Incentive Plan ("1999 Plan").
(2) The amount being registered represents the maximum number of shares of
Common Stock that may be issued by the Registrant upon the exercise of
options and other stock-based awards granted or which may be granted
under our 1996 and 1999 Plan. Pursuant to Rule 416, there are also being
registered additional shares of Common Stock as may become issuable
pursuant to the anti-dilution provisions of such plan.
(3) Shares to be issued pursuant to the Dynasil Corporation of America
1996 Stock Incentive Plan
(4) Shares to be issued pursuant to the Dynasil Corporation of America
1999 Stock Incentive Plan
(5) Shares to be issued pursuant to the Dynasil Corporation of America
Employee Stock Purchase Plan
(6) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of 85% of $1.50 per share
(the average of the high and low prices of the Registrant's common stock
as reported on the OTC Bulletin Board on September 19, 2000) for the
94,261 shares reserved for issuance under the Employee Stock
Purchase Plan.
(7) Shares previously issued pursuant to the Dynasil Corporation of America
Employee Stock Purchase Plan at $.25 per share.
<PAGE>
<PAGE>
SUBJECT TO COMPLETION, DATED September 19, 2000
REOFFER PROSPECTUS
650,000 SHARES
DYNASIL CORPORATION OF AMERICA
Common Stock ($.0005 par value)
This Prospectus relates to the reoffer and resale by certain selling
shareholders of shares of our Common Stock, $.0005 par value, that have been
issued as restricted stock pursuant to the Employee Stock Purchase Plan, and
that may be issued by us to the Selling Shareholders upon (i) the exercise of
outstanding stock options granted pursuant to our 1996 Stock Incentive Plan;
the exercise of outstanding stock options granted pursuant to our 1999 Stock
Incentive Plan; and (iii) the purchase of our stock by our employees pursuant
to our Employee Stock Purchase Plan. With respect to the shares that may be
issued to any of the selling shareholders or additional persons who may be
deemed affiliates, this Prospectus also relates to certain shares underlying
options which have not as of this date been granted. If and when such
options are granted, we will distribute a Prospectus Supplement. The
shares are being reoffered and resold for the account of the selling
shareholders and we will not receive any of the proceeds from the resale of the
shares.
It is anticipated that the resale of their shares may be effected
from time to time in one or more transactions on the open market, or in
privately negotiated transactions or otherwise at market prices prevailing at
the time of the sale or at prices otherwise negotiated. See "Plan of
Distribution." We will bear all expenses in connection with the preparation of
this Prospectus.
Our common stock is traded on the OTC Bulletin Board under the symbol
"DYSL." On September 19, 2000, the closing bid price for the common stock,
as reported by the OTC Bulletin Board was $1.4375.
Neither the Securities and Exchange Commission nor any state securities
commission has determined whether this prospectus is truthful or complete. They
have not made, nor will they make, any determination as to whether anyone should
buy these securities. Any representation to the contrary is a criminal offense
The date of this Prospectus is September 19, 2000.
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<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission (the "SEC"). You
may read and copy any document we file at the SEC's public reference room
located at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. You
may obtain further information on the operation of the public reference room
by calling the SEC at 1-800-SEC-0330. Our SEC filings are also available to
the public over the Internet at the SEC's web site at http://www.sec.gov. You
may also request copies of such documents, upon payment of a duplicating
fee, by writing to the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549.
TABLE OF CONTENTS
WHERE YOU CAN FIND MORE INFORMATION........................................ 2
INCORPORATION BY REFERENCE................................................. 3
GENERAL INFORMATION........................................................ 4
RISK FACTORS............................................................... 6
USE OF PROCEEDS............................................................ 11
SELLING SHAREHOLDERS....................................................... 11
PLAN OF DISTRIBUTION....................................................... 12
LEGAL MATTERS.............................................................. 12
EXPERTS.................................................................... 12
ADDITIONAL INFORMATION..................................................... 12
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you
by referring you to those documents. The information we incorporate by reference
is considered to be a part of this prospectus and information that we file
later with the SEC will automatically update and replace this
information. We incorporate by reference the documents listed below and any
future filings we make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"):
(a) The Corporation's Annual Report on Form 10-KSB for the fiscal year
ended
September 30, 1999
(b) The Corporation's proxy statement dated December 23, 1999, filed with
the Securities and Exchange Commission on December 29, 1999
(c) The Corporation's Quarterly Reports on Form 10-QSB for the quarters
ended December 31, 1999, March 31, 2000 and June 30, 2000;
(d) Registrant's Form 10-SB Registration Statement filed October 1, 1999
(e) All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, as amended, 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. Any
statement contained herein or in a document, all or a portion
of which is incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement
to the extent that a statement contained in any subsequently
filed document which also is or is 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.
You may request a copy of these filings (excluding the exhibits to such
filings which we have not specifically incorporated by reference in such
filings) at no cost, by writing or telephoning us at the following address:
Dynasil Corporation of America
385 Cooper Road
West Berlin, NJ 08091
Attention: John Kane, Chief Financial Officer
(856) 767-4600
-----------------
No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offer made hereby, and, if given or made, such
information or representations must not be relied upon as having been authorized
by us or any selling shareholder. This Prospectus does not constitute an offer
to sell, or a solicitation of an offer to buy, the securities offered hereby
to any person in any state or other jurisdiction in which such offer
or solicitation is unlawful. The delivery of this Prospectus at any time does
not imply that information contained herein is correct as of any time
subsequent to its date.
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<PAGE>
GENERAL INFORMATION
PROSPECTUS SUMMARY
We have provided you with a summary of important information on our
business. You should read all the information in this prospectus for a more
complete understanding. Some of the information has been incorporated from our
SEC filings. You can obtain copies of this incorporated information from us
without charge as described beginning on page 3. Please be sure to read "Risk
Factors" beginning on page 6 for a description of the high risk involved in
acquiring our shares.
THE COMPANY
Principal Executive Dynasil Corporation of America
Offices: 385 Cooper Road
West Berlin, New Jersey 08091
(856) 767-4600
Our Business:
Dynasil Corporation of America ("Dynasil", "we", or the "Company") was
incorporated in the State of New Jersey on October 20, 1960.
Business
We are primarily engaged in the manufacturing and marketing of customized
synthetic fused silica products. We also distribute fused quartz material that
we obtain from a variety of sources. Our products are used primarily as
components of optical instruments, lasers, analytical instruments,
semiconductor/electronic devices, spacecraft/aircraft components, and in devices
for the energy industry. These include:
o Optical components - lenses, prisms, reflectors, mirrors, filters,
optical flats
o Lasers - Beam Splitters, brewster windows, q-switches,
medical/industrial lasers, exciter systems
o Analytical Instruments - UV spectrophotometer cells, fire control
devices, reticle substrates, interferometer plates
o Energy - Laser/Tkamak fusion research isotope separation, solar cell
covers
o Semiconductor/Electronic -Microcircuit substrates, microwave devices,
photomasks, sputter plates, microlithography optics
o Spacecraft/Aircraft - Docking light covers, windows, re-entry heat
shields, ring laser gyros
We have a two man sales force located in our corporate headquarters West Berlin,
New Jersey that handles all domestic sales. We also use manufacture
representatives in various foreign countries for international sales. Marketing
efforts include direct customer contact through sales visits, advertising in
trade publications and presentations at trade shows. Our products are
distributed through direct sales and delivered by commercial carriers.
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<PAGE>
We compete for business in the optics industry primarily with two other
manufacturers of synthetic fused silica and several distributors of their
products. The manufacturers are Corning Incorporated, Canton, NY and Heraeus
Quarzglas, Germany. Our principal competitive distributors include United Lens
Company, Inc., Southbridge, MA, Advanced Glass Industries, Rochester, NY and
Glass Fab, Inc., Rochester NY.
Market share in the optics industry is largely determined by a combination of
quality, price and speed of delivery. We believe that we are competitive in the
mid to high level quality markets. We feel that we do not compete as effectively
for the lower quality markets because our price is not competitive, or in the
very highest quality market because our manufacturing process is not currently
able to produce product of sufficient quality.
All of the fused silica that we manufacture is produced using a single
manufacturing process. The product is then graded to determine its quality. We
have been able to sell the higher quality material at a higher price, and with
higher profit margins. With respect to speed of delivery, we believe that we
perform as well as or better than our competitors.
The primary raw material used in our manufacturing process is silicon
tetrachloride, which we obtain from Teledyne Wah Chang. In the event we are
unable to obtain silicon tetrachloride from our current supplier, it is
available from Dow Chemical or Hemlock, Inc. at comparable prices.
We presently have over 150 customers, with 90% of our business being
concentrated in our top 40 customers. Our four largest customers, Grimes
Aerospace Company, Carl Zeiss, VLOC and Spectra Physics, each accounted for
approximately 8.2%, 6.8%, 5.7%, 5.3%, 5.2%, respectively, of our total revenues
during nine months ended June 30, 2000. Generally, our customers provide
purchase orders for a specific quantity and quality of fused silica. These
purchase orders generally are filled with fused silica from inventory or
manufacture to order. Orders are generally filled over a period ranging from one
month to one year. The loss of any of these customers would likely have a
material adverse effect on our business, financial condition and results of
operations.
Our business and financial condition would be materially adversely affected if
we do not attain substantial additional business from these customers, or if we
lose the business of any of these customers, and if we fail to attain
substantial additional business from other customers.
Other than federal, state and local environmental laws, our manufacturing
process is not subject to direct governmental regulation. Dynasil's
manufacturing process, which includes storage of hazardous materials, is subject
to a variety of federal, state and local environmental rules and regulations.
We make extensive use of engineering consultants to provide the technical
expertise to help ensure that our equipment is in compliance with the
environmental laws. Waste water and ground water testing is conducted quarterly
by an engineering consultant, and the results are submitted directly to the
appropriate regulating agencies. We are permitted to dispose of our waste water
through the Camden County Municipal Utilities Authority. We have a permit to use
an air scrubber system, which is tested periodically. The latest test was
performed on March 28, 2000. We do not have a pending notice of violations and
are aware of no potential violations. We train our employees in the proper
handling of hazardous materials. There are no buried storage tanks on our
property. A Phase I environmental audit, completed approximately two years ago,
did not disclose any conditions requiring remediation. Our environmental
compliance costs approximately $300,000 per year.
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Our research and development activities primarily have involved changes to our
manufacturing process and the introduction of equipment with newer technology.
Improvements to our manufacturing process involved developing larger furnaces
in order to produce larger fused silica boules, and replacing existing furnaces
with higher quality equipment. We have spent approximately $1,300,000 to develop
the larger furnaces and upgrade existing furnaces. An additional $400,000 was
invested in additional glass processing equipment. Investigations into use of
purer raw material, alternative fuels and improved distribution systems have
been the primary emphasis of our research and development program. We have
collaborated with the University of Missouri to develop uses for scrap fused
silica, and with Northwestern University to develop methods to remelt scrap
material.
RISK FACTORS
WE MAY NEVER PAY CASH DIVIDENDS ON OUR COMMON STOCK, IN WHICH EVENT PURCHASERS'
ONLY RETURN ON THEIR INVESTMENT, IF ANY, WILL OCCUR ON THE SALE OF OUR STOCK.
We have never declared or paid a cash dividend. We presently intend to retain
any future earnings for use in the business and do not presently intend to pay
cash dividends in the foreseeable future.
INDEMNIFICATION AND LIMITATION OF LIABILITY OF OUR OFFICERS AND DIRECTORS MAY
INSULATE THEM FROM ACCOUNTABILITY TO STOCKHOLDERS AT SUBSTANTIAL COST TO US.
Our by-laws include provisions whereby our officers and directors are to
be indemnified against liabilities to the fullest extent permissible under New
Jersey law. Our by-laws also limit a director's liability for monetary damages
for breach of fiduciary duty, including gross negligence. In addition, we have
agreed to advance the legal expenses of our officers and directors who are
required to defend against claims. These provisions and agreements may have the
effect of reducing the likelihood of suits against directors and officers even
though such suits, if successful, might benefit us and our stockholders.
Furthermore, your investment in may be adversely affected if we pay the cost of
settlement and damage awards against directors and officers.
A LARGE BLOCK OF SHARES CAN BE SOLD UNDER RULE 144.
A large block of shares which were previously restricted can be sold under Rule
144. The sale of a large number of these shares could lower the price of our
shares or make it harder to attract new investors.
RISKS RELATED TO OUR OPERATIONS
Our business may suffer if the optics industry fails to grow and evolve.
The optics industry as a whole, experiences:
. intense competition;
. rapid technological changes resulting in short product life-cycles and
consequent product obsolescence;
. significant fluctuations in product demand;
. economic cycles, including recessionary periods; and
. consolidation.
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A recessionary period or other event leading to excess capacity affecting one
or more segments of the optics industry we serve would likely result in
intensified price competition, reduced margins and a decrease in sales.
THE LOSS OF MAJOR CUSTOMERS COULD ADVERSELY AFFECT US.
We presently have over 150 customers, with 90% of our business being
concentrated in our top 40 customers. Our four largest customers, Grimes
Aerospace Company, Carl Zeiss, VLOC and Spectra Physics, each accounted for
approximately 8.2%, 6.8%, 5.7%, 5.3%, 5.2%, respectively, of our total revenues
during nine months ended June 30, 2000. Generally, our customers provide
purchase orders for a specific quantity and quality of fused silica. These
purchase orders generally are filled with fused silica from inventory or
manufacture to order. Orders are generally filled over a period ranging from one
month to one year. The loss of any of these customers would likely have a
material adverse effect on our business, financial condition and results of
operations.
Our business and financial condition would be materially adversely affected if
we do not attain substantial additional business from these customers, or if we
lose the business of any of these customers, and if we fail to attain
substantial additional business from other customers.
Because certain customers represent such a large part of our business, any of
the following could negatively impact our business:
. the loss of one or more major customers;
. a significant reduction or delay in purchases from any major customer;
. discontinuance by any major customer of the sale of products we
manufacture;
. a reduction in demand for the products of major customers that we
manufacture; or
. the inability or unwillingness of a major customer to pay for products
and services on a timely basis or at all.
Our customers do not enter into long-term purchase orders or commitments, and
cancellations, reductions or delays in customer orders would adversely affect
our profitability.
The level and timing of orders placed by our customers vary due to:
. customer attempts to manage inventory;
. changes in the customers' manufacturing strategy, such as a decision by
a customer to either diversify or consolidate the number of
service providers used or to manufacture their products
internally; and
. variation in demand for customer products.
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<PAGE>
We generally do not obtain long-term purchase orders or commitments from our
customers. Instead, we work closely with our customers to anticipate delivery
dates and future volume of orders based on customer forecasts. We rely on our
estimates of anticipated future volumes when making commitments regarding:
. the levels of business that we will seek and accept;
. the timing of production schedules;
. the purchase of materials;
. the purchase or leasing of facilities and equipment; and
. the levels and utilization of personnel and other resources.
Customers may cancel, reduce or delay orders that were either previously made
or anticipated for a variety of reasons. Significant or numerous terminations,
reductions or delays in our customers' orders could negatively impact our
operating results. We often manufacture product based on customer forecasts, at
times without a customer commitment to pay for them.
INCREASED COMPETITION MAY RESULT IN DECREASED DEMAND OR PRICES FOR OUR PRODUCTS.
The optics industry is highly competitive. We compete against numerous U.S.
and foreign manufacturing providers with global operations, as well as those who
operate on a local or regional basis. In addition, current and prospective
customers continually evaluate the merits of manufacturing products internally.
Consolidation in the optics industry results in a continually changing
competitive landscape. The consolidation trend in the industry also results in
larger and more geographically diverse competitors who have significant combined
resources with which to compete against us. Some of our competitors have
substantially greater managerial, manufacturing, engineering, technical,
financial, systems, sales and marketing resources than we do. These competitors
may:
. respond more quickly to new or emerging technologies;
. have greater name recognition, critical mass and geographic and market
presence;
. be better able to take advantage of acquisition opportunities;
. adapt more quickly to changes in customer requirements; and
. devote greater resources to the development, promotion and sale of their
products.
WE MAY BE OPERATING AT A COST DISADVANTAGE COMPARED TO MANUFACTURERS WHO HAVE
GREATER DIRECT BUYING POWER FROM RAW MATERIAL SUPPLIERS OR WHO HAVE LOWER COST
STRUCTURES.
Our manufacturing processes are generally not subject to significant proprietary
protection, and companies with greater resources or a greater geographic and
market presence may enter our market or increase their competition with us.
Increased competition from existing or potential competitors could result in
price reductions, reduced margins or loss of market share.
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<PAGE>
WE MAY NOT BE ABLE TO OBTAIN RAW MATERIALS OR COMPONENTS FOR OUR PRODUCT ON A
TIMELY BASIS OR AT ALL.
We rely on a single or limited number of third-party suppliers for the raw
materials used in the manufacturing process. We do not have any long-term supply
agreements. Shortages of materials have occurred from time to time and will
likely occur in the future. Raw materials or component shortages could result
in shipping delays or increased prices which could adversely affect our ability
to manufacture products for our customers on a timely basis or at acceptable
cost. Moreover, the consolidation trend in our suppliers' industry results in
changes in supply relationships and in the price, availability and quality of
components and raw materials.
WE MAY NOT BE ABLE TO MAINTAIN OUR TECHNOLOGICAL AND MANUFACTURING PROCESS
EXPERTISE.
The markets for our manufacturing services are characterized by rapidly
changing technology and evolving process development. The continued success of
our business will depend upon our ability to:
. maintain and enhance our technological capabilities;
. develop and market manufacturing services which meet changing customer
needs; and
. successfully anticipate or respond to technological changes in
manufacturing processes on a cost-effective and timely basis.
We may incur significant liabilities if we fail to comply with environmental
regulations.
We are subject to environmental regulations relating to the use, storage,
discharge, site cleanup, and disposal of hazardous chemicals used in our
manufacturing processes. If we fail to comply with present and future
regulations, or are required to perform site remediation, we could be subject
to future liabilities or the suspension of production. Present and future
regulations may also:
. restrict our ability to expand our facilities;
. require us to acquire costly equipment; or
. require us to incur other significant costs and expenses.
RISKS RELATED TO OUR COMMON STOCK
We anticipate that our net sales and operating results will fluctuate which
could affect the price of our common stock.
Our net sales and operating results have fluctuated and may continue to
fluctuate significantly from quarter to quarter. A substantial portion of our
net sales in a given quarter may depend on obtaining and fulfilling orders to
be manufactured and shipped in the same quarter in which those orders are
received. In addition to the variability resulting from the short-term nature
of our customers' commitments, the following factors may contribute to such
fluctuations:
. fluctuations in demand for our services or the products we manufacture;
. shipment delays;
. interruptions in manufacturing caused by earthquakes or other natural
disasters;
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<PAGE>
. effectiveness in controlling manufacturing costs;
. changes in cost and availability of labor and components;
. inefficiencies in managing inventory and accounts receivable, including
inventory obsolescence and write-offs; and
. the levels at which we utilize our manufacturing capacity.
Our operating expenses are based on anticipated revenue levels and a high
percentage of our operating expenses are relatively fixed in the short term. As
a result, any unanticipated shortfall in revenue in a quarter would likely
adversely affect our operating results for that quarter. Also, changes in our
product mix may cause our margins to fluctuate which could negatively impact our
results of operations for that period. Results of operations in any period
should not be considered indicative of the results to be expected for any future
period. It is likely that in one or more future periods our results of
operations will fail to meet the expectations of securities analysts or
investors, and the price of our common stock could decline significantly.
THE PRICE OF OUR COMMON STOCK HAS BEEN AND MAY CONTINUE TO BE VOLATILE.
The price of our common stock has been and may continue to be volatile. The
price of our common stock may fluctuate significantly in response to a number
of events and factors relating to our company, our competitors and the market
for our services, many of which are beyond our control, such as:
. quarterly variations in our operating results;
. announcements of new technological innovations, equipment or service
offerings by us or our competitors;
. announcements of new products or enhancement by our customers;
. changes in financial estimates and recommendations by securities
analysts; and
. news relating to trends in our markets.
In addition, the stock market in general, and the market prices for technology
companies in particular, have experienced extreme volatility that often has been
unrelated to the operating performance of these companies. These broad market
and industry fluctuations may adversely affect the market price of our common
stock, regardless of our operating performance.
Recently, when the market price of a stock has been volatile, holders of that
stock have often instituted securities class action litigation against the
company that issued the stock. We have been the subject of such a lawsuit. If
any of our stockholders brought another securities class action lawsuit against
us, we could incur substantial additional costs defending that lawsuit. The
lawsuit could also divert the time and attention of our management and an
adverse judgment could cause our financial condition or operating results to
suffer.
WE RELY ON TRADE SECRET AND COPYRIGHT LAWS TO PROTECT THE PROPRIETARY
TECHNOLOGIES THAT WE MAY DEVELOP.
There can be no assurance that trade secret and/or copyright laws will provide
us with sufficient protection, that others will not develop technologies that
are similar or superior to ours, or that third parties will not copy or
otherwise obtain or use our technologies without our authorization. We have no
patents or patent applications filed or pending.
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Special Note Regarding Forward-looking Statements
Some of the statements contained in this prospectus, including information
incorporated by reference, discuss future expectations, contain projections of
future results of operations or financial condition or state other
"forward-looking" information. Those statements are subject to known and
unknown risks, uncertainties and other factors that could cause the actual
results to differ materially from those contemplated by the statements. The
forward-looking information is based on various factors and was derived using
numerous assumptions. Important factors that may cause actual results to differ
from projections include the risk factors set forth above.
USE OF PROCEEDS
The Company will receive the price of the shares of Common Stock
offered pursuant to the 1996 Stock Incentive Plan, the 1999 Stock Incentive Plan
and the Employee Stock Purchase Plan, when exercised by the holders thereof.
Such proceeds will be used for working capital purposes by the Company. The
Company will not receive any of the proceeds from the reoffer and resale of the
shares (the "Shares") of Common Stock, $.0005 par value ("Common Stock") by
the selling shareholders.
SELLING SHAREHOLDERS
This Prospectus relates to the reoffer and resale of Shares issued
or that may be issued to the Selling Shareholders under the 1996 Stock
Incentive Plan, the 1999 Stock Incentive Plan or the Employee Stock Purchase
Plan.
The following table sets forth (i) the number of shares of Common Stock
beneficially owned by each Selling Shareholder at September 19, 2000, (ii)
the number of Shares to be offered for resale by each selling shareholder (i.e.,
the total number of Shares acquired under the Employee Stock Purchase Plan),
(iii) the total number of shares underlying options held by the selling
shareholders irrespective of whether such options are presently exercisable
or exercisable within sixty days of September 19, 2000; and (iv) the number and
percentage of shares of Common Stock to be held by each Selling Shareholder
after completion of the offering. The table is based upon 2,356,408 shares
outstanding as of September 19, 2000.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Number of shares of
Common Stock/
Number of Percentage of Class to
Number of shares of Shares to be be Owned After
Common Stock Owned at Offered for Completion of the
Name, Position with Company April 30, 2000(1) Resale Offering
---------------------------------------- ------------------------ ----------------- ------------------------
Bruce Leonetti, Vice President, Sales...... 10,100 10,000 *
*less than one percent
</TABLE>
(1) Does not include 1,274 shares sold to unnamed non-affiliates who hold less
than 1% of the shares issuable under the plan
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PLAN OF DISTRIBUTION
It is anticipated that the Shares will be offered by the selling
shareholders from time to time in the open market, either directly or through
brokers or agents, or in privately negotiated transactions. The selling
shareholders have advised the Company that they are not parties to any
agreement, arrangement or understanding as to such sales.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Section 14A:3-5 of New Jersey Business Corporation Law 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. The Certificate of Incorporation also
provides for the indemnification, to the fullest extent permitted by New Jersey
Business Corporation Law, of such persons. Insofar as indemnification for
liabilities arising under the Securities Act, may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
LEGAL MATTERS
Certain legal matters in connection with the issuance of the Shares
offered hereby have been passed upon for the Company by Stephen M. Robinson,
P.A., 172 Tuckerton Road, Medford, New Jersey, 08055.
EXPERTS
The consolidated financial statements of Dynasil Corporation of
America and subsidiaries as of September 30, 1999 and 1998 have been
incorporated by reference in reliance upon the report of Haefele, Flanagan
& Co., p.c., independent certified public accountants, upon the authority of
said firm as experts in accounting and auditing.
PART II--INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in this
Registration Statement and are deemed to be a part hereof from the date of
filing such documents by Dynasil Corporation of America (the "Corporation"):
(a) The Corporation's Annual Report on Form 10-KSB for the fiscal year
ended
September 30, 1999; and
(b) The Corporation's Quarterly Reports on Form 10-QSB for the quarters
ended December 31, 1999, March 31, 2000 and June 30, 2000;
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(c) The Corporation's proxy statement dated December 23, 1999, filed with
the Securities and Exchange Commission on December 29, 1999
(d) Registrant's Form 10-SB Registration Statement filed October 1, 1999
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
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. Any statement contained herein or in a document, all or a portion
of which is incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in any subsequently filed document which also is or is
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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The by-laws of the Company provide that every person who is or was a
director or officer, employee or agent of the Company, or any person who serves
or has served in any capacity with any other enterprise at the request of the
Company, shall be indemnified by the Company to the fullest extent permitted by
law. The Company shall indemnify the persons listed above against all expenses
and liabilities reasonably incurred by or imposed on them in connection with any
proceedings to which they have been or may be made parties, or any proceedings
in which they may have become involved by reason of being or having been a
director or officer of the Company, or by reason of serving or having served
another enterprise at the request of the Company, whether or not in the
capacities of directors or officers of the Company at the time the expenses or
liabilities are incurred.
New Jersey has enacted the following statutory indemnification provisions:
NJSA 14A:3-5. Indemnification of directors, officers and employees -
(1) As used in this section,
(a) "Corporate agent" means any person who is or was a director, officer,
employee or agent of the indemnifying corporation or of any constituent
corporation absorbed by the indemnifying corporation in a consolidation or
merger and any person who is or was a director, officer, trustee, employee or
agent of any other enterprise, serving as such at the request of the
indemnifying corporation, or of any such constituent corporation, or the legal
representative of any such director, officer, trustee, employee or agent;
(b) "Other enterprise" means any domestic or foreign corporation, other
than the indemnifying corporation, and any partnership, joint venture, sole
proprietorship, trust or other enterprise, whether or not for profit, served by
a corporate agent;
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(c) "Expenses" means reasonable costs, disbursements and counsel fees;
(d) "Liabilities" means amounts paid or incurred in satisfaction of
settlements, judgments, fines and penalties;
(e) "Proceeding" means any pending, threatened or completed civil,
criminal, administrative or arbitrative action, suit or proceeding, and any
appeal therein and any inquiry or investigation which could lead to such action,
suit or proceeding; and
(f) References to "other enterprises" include employee benefit plans;
references to "fines" include any excise taxes assessed on a person with respect
to an employee benefit plan; and references to "serving at the request of the
indemnifying corporation" include any service as a corporate agent which imposes
duties on, or involves services by, the corporate agent with respect to an
employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner the person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(2) Any corporation organized for any purpose under any general or special
law of this State shall have the power to indemnify a corporate agent against
his expenses and liabilities in connection with any proceeding involving the
corporate agent by reason of his being or having been such a corporate agent,
other than a proceeding by or in the right of the corporation, if
(a) such corporate agent 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
(b) with respect to any criminal proceeding, such corporate agent had no
reasonable cause to believe his conduct was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not of itself create a presumption that such
corporate agent did not meet the applicable standards of conduct set forth in
paragraphs 14A:3-5(2)(a) and 14A:3-5(2)(b).
(3) Any corporation organized for any purpose under any general or special
law of this State shall have the power to indemnify a corporate agent against
his expenses in connection with any proceeding by or in the right of the
corporation to procure a judgment in its favor which involves the corporate
agent by reason of his being or having been such corporate agent, 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. However, in such proceeding no
indemnification shall be provided in respect of any claim, issue or matter as
to which such corporate agent shall have been adjudged to be liable to the
corporation, unless and only to the extent that the Superior Court or the court
in which such proceeding was brought shall determine upon application that
despite the adjudication of liability, but in view of all circumstances of the
case, such corporate agent is fairly and reasonably entitled to indemnity for
such expenses as the Superior Court or such other court shall deem proper.
(4) Any corporation organized for any purpose under any general or special
law of this State shall indemnify a corporate agent against expenses to the
extent that such corporate agent has been successful on the merits or otherwise
in any proceeding referred to in subsections 14A:3-5(2) and 14A:3-5(3) or in
defense of any claim, issue or matter therein.
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(5) Any indemnification under subsection 14A:3-5(2) and, unless ordered by
a court, under subsection 14A:3-5(3) may be made by the corporation only as
authorized in a specific case upon a determination that indemnification is
proper in the circumstances because the corporate agent met the applicable
standard of conduct set forth in subsection 14A:3-5(2) or subsection
14A:3-5(3).
Unless otherwise provided in the certificate of incorporation or bylaws, such
determination shall be made
(a) by the board of directors or a committee thereof, acting by a majority
vote of a quorum consisting of directors who were not parties to or otherwise
involved in the proceeding; or
(b) if such a quorum is not obtainable, or, even if obtainable and such
quorum of the board of directors or committee by a majority vote of the
disinterested directors so directs, by independent legal counsel, in a written
opinion, such counsel to be designated by the board of directors; or
(c) by the shareholders if the certificate of incorporation or bylaws or
a resolution of the board of directors or of the shareholders so directs.
(6) Expenses incurred by a corporate agent in connection with a proceeding
may be paid by the corporation in advance of the final disposition of the
proceeding as authorized by the board of directors upon receipt of an
undertaking by or on behalf of the corporate agent to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified as
provided in this section.
(7) (a) If a corporation upon application of a corporate agent has failed
or refused to provide indemnification as required under subsection 14A:3-5(4)
or permitted under subsections 14A:3-5(2), 14A:3-5(3) and 14A:3-5(6), a
corporate agent may apply to a court for an award of indemnification by the
corporation, and such court
(i) may award indemnification to the extent authorized under subsections
14A:3-5(2) and 14A:3-5(3) and shall award indemnification to the extent required
under subsection 14A:3-5(4), notwithstanding any contrary determination which
may have been made under subsection 14A:3-5(5); and
(ii) may allow reasonable expenses to the extent authorized by, and subject
to the provisions of, subsection 14A:3-5(6), if the court shall find that the
corporate agent has by his pleadings or during the course of the proceeding
raised genuine issues of fact or law.
(b) Application for such indemnification may be made
(i) in the civil action in which the expenses were or are to be incurred
or other amounts were or are to be paid; or
(ii) to the Superior Court in a separate proceeding. If the application
is for indemnification arising out of a civil action, it shall set forth
reasonable cause for the failure to make application for such relief in the
action or proceeding in which the expenses were or are to be incurred or other
amounts were or are to be paid.
The application shall set forth the disposition of any previous application
for indemnification and shall be made in such manner and form as may be required
by the applicable rules of court or, in the absence thereof, by direction of the
court to which it is made. Such application shall be upon notice to the
corporation. The court may also direct that notice shall be given at the
expense of the corporation to the shareholders and such other persons as it may
designate in such manner as it may require.
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(8) The indemnification and advancement of expenses provided by or granted
pursuant to the other subsections of this section shall not exclude any other
rights, including the right to be indemnified against liabilities and expenses
incurred in proceedings by or in the right of the corporation, to which a
corporate agent may be entitled under a certificate of incorporation, bylaw,
agreement, vote of shareholders, or otherwise; provided that no indemnification
shall be made to or on behalf of a corporate agent if a judgment or other final
adjudication adverse to the corporate agent establishes that his acts or
omissions (a) were in breach of his duty of loyalty to the corporation or its
shareholders, as defined in subsection (3) of > N.J.S.14A:2-7, (b) were not in
good faith or involved a knowing violation of law or (c) resulted in receipt by
the corporate agent of an improper personal benefit.
(9) Any corporation organized for any purpose under any general or special
law of this State shall have the power to purchase and maintain insurance on
behalf of any corporate agent against any expenses incurred in any proceeding
and any liabilities asserted against him by reason of his being or having been
a corporate agent, whether or not the corporation would have the power to
indemnify him against such expenses and liabilities under the provisions of this
section. The corporation may purchase such insurance from, or such insurance
may be reinsured in whole or in part by, an insurer owned by or otherwise
affiliated with the corporation, whether or not such insurer does business with
other insureds.
(10) The powers granted by this section may be exercised by the
corporation, notwithstanding the absence of any provision in its certificate of
incorporation or bylaws authorizing the exercise of such powers.
(11) Except as required by subsection 14A:3-5(4), no indemnification shall
be made or expenses advanced by a corporation under this section, and none shall
be ordered by a court, if such action would be inconsistent with a provision of
the certificate of incorporation, a bylaw, a resolution of the board of
directors or of the shareholders, an agreement or other proper corporate action,
in effect at the time of the accrual of the alleged cause of action asserted in
the proceeding, which prohibits, limits or otherwise conditions the exercise of
indemnification powers by the corporation or the rights of indemnification to
which a corporate agent may be entitled.
(12) This section does not limit a corporation's power to pay or reimburse
expenses incurred by a corporate agent in connection with the corporate agent's
appearance as a witness in a proceeding at a time when the corporate agent has
not been made a party to the proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
9,274 shares were offered pursuant to Rule 701 to employees under the
Employee Stock Purchase Plan prior to Registrant becoming a reporting company.
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ITEM 8. EXHIBITS.
Exhibit
Number Description
------- ------------
5 * Opinion of Stephen M. Robinson, P.A.
10.03+ 1996 Stock Incentive Plan of the Registrant (Incorporated by reference
from the Registrant's Registration Statement on Form 10 filed 10/1/99)
10.04+ 1999 Stock Incentive Plan of the Registrant (Incorporated by reference
from the Registrant's Registration Statement on Form 10 filed 10/1/99)
10.05+ Employee Stock Purchase Plan of the Registrant (Incorporated by
reference
from the Registrant's Registration Statement on Form 10 filed 10/1/99)
10.06* 1999 Stock Incentive Plan of the Registrant, as amended July 25, 2000
10.07* Employee Stock Purchase Plan of the Registrant, as amended July 25, 2000
23.1 * Independent Auditors' Consent
23.2 * Legal Counsel Consent (contained in Exhibit 5)
*Filed herewith
+Incorporated by reference
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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;
(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
Securities and Exchange 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 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 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
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 West Berlin, State of New Jersey on the day
of August, 2000.
DYNASIL CORPORATION OF AMERICA
By: /s/
-----------------------------------
Charles J. Searock, Jr.,
President, Chief Executive Officer,
Director
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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
BY: /s/ James Saltzman Chairman of the Board of August , 2000
--------------------- Directors -----------------
James Saltzman
BY: /s/ Charles J. Searock Jr. President, CEO and Director August , 2000
-------------------------- -----------------
Charles J. Searock, Jr.
BY: /s/ John Kane Secretary, Treasurer, August , 2000
--------------------- and Chief Financial Officer -----------------
John Kane (Principal Financial
Officer and Principal
Accounting Officer)
BY: /s/ Jan Melles Director August , 2000
--------------------- -----------------
Jan Melles
BY: /s/ Nathan Schwartz Director August , 2000
--------------------- -----------------
Nathan Schwartz
BY: /s/ Peter P. Bihuniak Director August , 2000
--------------------- -----------------
Dr. Peter P. Bihuniak
BY: /s/ Robert Lear Director August , 2000
--------------------- -----------------
Robert Lear
</TABLE>
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