<PAGE>As filed with the Securities and Exchange Commission on
November 1, 1996
Registration No.
_333-____ ____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
Registration Statement
[and Post-Effective Amendment No. 1 to Form S-3 Registration Statement
(No. 333-02411)]
Under the Securities Act of 1933
HEALTH-CHEM CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 13-2682801
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
1212 Avenue of the Americas, 24th Floor
New York, NY 10036
(212) 398-0700
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Marvin M. Speiser, President
Health-Chem Corporation
1212 Avenue of the Americas, 24th Floor
New York, NY 10036
(212) 398-0700
(Name, Address, Including Zip Code, and Telephone Number, Including Area
Code, of Agent for Service)
Copies to:
Bruce M. Schloss, Esq. Paul Bork, Esq.
General Counsel Hinckley, Allen & Snyder
Health-Chem Corporation One Financial Center
1212 Avenue of the Americas, 24th Floor 45th Floor
New York, NY 10036 Boston, MA 02111
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this registration statement becomes effective.
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest-reinvestment plans, check the following box:
/X/
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration number of the
earlier effective Registration Statement for the same offering: [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act Registration Statement number of the earlier effective
Registration Statement for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box: [ ]
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CALCULATION OF REGISTRATION FEE
Title of each Amount to Proposed Proposed Registratio
class of be Maximum Maximum n Fee
Securities to Registered Offering Aggregate
be Registered Price Per Offering
Share(2) Price(2)
Common Stock, 317,406 $1 3/16 $376,919.00 $114.21(4)
$.01 par
value per
share (1)
Attached -- -- -- --
Common Stock
Purchase
Rights (3)
(1) Shares of Common Stock to be offered for the account of the Selling
Stockholder.
(2) Estimated solely for the purpose of calculating the registration
fee.
(3) Attached Common Stock Purchase Rights pursuant to that certain
Rights Agreement (the "Rights Agreement") by and between the Company
and Harris Trust Company of New York, as Rights Agent, dated as of
February 28, 1989, as amended as of November 7, 1990, which Rights
were registered with the Securities and Exchange Commission via Form
8-A on August 1, 1989.
(4) No additional registration fee is being paid herewith as the Shares
being registered hereunder are concurrently being deregistered by
the Post-Effective Amendment of Registration Statement No. 333-02411
pursuant to Rule 429.
The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that
this registration statement shall thereafter become effective in
accordance with Section 8(a) of this Securities Act of 1933 or until the
registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
STATEMENT PURSUANT TO RULE 429
The Prospectus contained in this Registration Statement is a
combined Prospectus which also covers shares of the Registrant's Common
Stock, par value $.01 per share, heretofore covered by Registration
Statement No. 333-02411.
<PAGE>HEALTH-CHEM CORPORATION
Subject to completion, dated November 1 __, 1996
PROSPECTUS
HEALTH-CHEM CORPORATION
317,406 Shares of Common Stock
All of the 317,406 shares (the "Shares") of common stock, par
value $.01 per share ("Common Stock") of Health-Chem Corporation (the
"Company") being registered hereby are being sold for the account of
Marvin M. Speiser, President and Chairman of the Company's Board of
Directors (the "Selling Stockholder"). The Shares are expected to be
sold pursuant to an agreement among the Company, Mr. Speiser, and one
or more institutional investors (hereinafter the "Funds"), under
which the Company's option to repurchase the Shares from Mr. Speiser
are being extinguished. Substantially all of the proceeds from the
sale of the Shares are being remitted to the Selling Stockholder.
The excess of the proceeds over the aggregate option exercise is
being applied to defray a portion of the costs of the Offering. See
"The Offering" and "Use of Proceeds."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
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Purchase Underwriter's Proceeds to Proceeds to
Price Discounts and Selling Company
Commissions Stockholder(1 (1)(2)
)
Per $1.10 --- $1.09 $.01
Share
Total $349,147. --- $345,973.00 $3,174.00
00
(1) Approximate proceeds assuming sale on or before November 15, 1996.
(2) Before deducting expenses of the Offering.
The Date of this Prospectus is November 1____, 1996.
<PAGE>ADDITIONAL INFORMATION
Health-Chem Corporation ("Health-Chem" or the "Company"), has
filed with the Securities and Exchange Commission (the "Commission")
a registration statement on Form S-3 (including all amendments
thereto, the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act") with respect to the Common
Stock offered hereby. As permitted by the rules and regulations of
the Commission, this Prospectus omits certain information contained
in the Registration Statement. For further information with respect
to the Company and the Common Stock offered hereby, reference is
hereby made to the Registration Statement and to the exhibits and
schedules filed therewith. Statements contained in this Prospectus
regarding the contents of any agreement or other document filed as an
exhibit to the Registration Statement are not necessarily complete,
and in each instance reference is made to the copy of such agreement
or document filed as an exhibit to the Registration Statement, each
statement being qualified in all respects by such reference. The
Registration Statement, including exhibits and schedules thereto, may
be inspected at the public reference facilities maintained by the SEC
at 450 Fifth Street, N.W., Washington, DC 20549, and copies of all or
any part thereof may be obtained from such office upon payment of the
prescribed fees. In addition, the Commission maintains a web site
that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the
Commission. The address of such site is http://www.sec.gov.
The Common Stock is traded on the American Stock Exchange, Inc.,
and in the over-the-counter market under the symbol "HCH." On
October 31, 1996, the last reported sale price of the Common
Stock was $1 3/16 per share.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission
are incorporated by reference into this prospectus:
(1) The Company's annual report for the fiscal year ended
December 31, 1995 on Form 10-K;
(2) The Company's definitive proxy statement dated April 5, 1996
for the 1996 Annual Meeting of Stockholders; and
(3) The Company's quarterly reports for the fiscal quarters
ended March 31 and June 30, 1996, each on Form 10-Q.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), prior to the termination of
the Offering shall be deemed to be incorporated by reference into the
Prospectus.
The Company will provide without charge to each person to whom a
copy of this Prospectus has been delivered on the written request of
any such person, a copy of any or all of the documents described
above which have been incorporated by reference in this Prospectus,
other than exhibits to such documents. Written requests for copies
of such documents should be addressed to Bruce M. Schloss, Esq.,
Secretary, Health-Chem Corporation, 1212 Avenue of the Americas, 24th
Floor, New York, New York, 10036 (telephone (212) 398-0700).
<PAGE>
THE OFFERING AND BACKGROUND
Subscription Rights Offering and Expiration
In the first quarter of 1996, the Board of Directors of the
Company concluded that the best interests of the Company and its
stockholders would be served by increasing the number of shares of
the Company's Common Stock in the hands of non-affiliates, and by
reducing or eliminating the relatively large percentage of the
Company's outstanding Common Stock which were subject to repurchase
by the Company from the Selling Stockholder pursuant to option
agreements entered into in 1991 and 1994 (the "Options"). On August
2, 1996 (the "Record Date"), the Company commenced a subscription
rights offering (the "Rights Offering") to record holders of Common
Stock ("Record Holders"), other than the Selling Stockholder,
pursuant to Registration Statement No. 333-02411. In the Rights
Offering, the Company granted to Record Holders transferable
subscription rights to purchase three shares of Common Stock for
every ten shares of Common Stock held by such holder on the Record
Date, at a purchase price of $1.10 per share. Pursuant to a Stock
Purchase Agreement dated March 29, 1996, as amended, the Selling
Stockholder provided the shares of Common Stock for purchase by the
Company in an amount equal to the number of shares of Common Stock
issued to subscribers in the Subscription Rights Offering. A total
of 1,269,926 of the shares of Common Stock offered pursuant to the
Rights Offering were subject to the Options. A total of 952,520
shares were subscribed for (of 1,320,000 shares registered in the
Rights Offering), leaving 367,480 shares (317,406 of which remain
subject to the Options) unsubscribed for at the expiration of the
Rights Offering on September 16, 1996.
In accordance with its undertaking the Company hereby removes
from registration all 367,480 shares which were included in the
1,320,000 shares covered by Registration Statement No. 333-02411 and
which remained unsold at the termination of the Offering. 317,406 of
said shares are being re-offered hereby as the Shares in the
Secondary Offering as described below.
The Secondary Offering
Contemporaneously with the expiration of the Rights Offering, the
investment banking firm of Ladenburg, Thalmann & Co. Inc. ("LTC")
approached the Company and expressed an interest in acquiring for the
accounts of investment funds which are advised by associated
persons of LTC (the "Funds") which remained unsubscribed for at the
expiration of the Rights Offering at a price equal to the Rights
Offering subscription price. The Company, the Funds, and the Selling
Stockholder intend to enter into an
agreement (the "Standby Stock Purchase Agreement")prior to this
registration statement becoming effective, pursuant to
which: (a) the Funds would purchase these 317,406 Shares at the
purchase price (the "Purchase Price") of $1.10 per share (or an
aggregate purchase price of $349,147); (b) the Selling Stockholder
would receive an amount per share equal to the weighted average
option exercise price for all 317,406 shares subject to the Options
(the "Average Option Price"), and the Company would receive the
<PAGE>
difference between the aggregate Purchase Price and the aggregate
exercise price under the Options, to defray, in part, the costs of
this Offering; and (c) the Company agreed to register the Shares
under the Securities Act of 1933 (the "Act"). The Average Option
Price includes an interest component; consequently, the Average
Option Price increases over time. As of November 15, 1996, the
Average Option Price would be approximately $1.09 per share. See
"Use of Proceeds."
USE OF PROCEEDS
Substantially all of the proceeds of the Offering ($345,973.00
of $349,147.00, or approximately 99%), shall be paid to the Selling
Stockholder. The remaining $3,174.00 shall be paid to the Company to
defray the Company's costs of the Offering. The Company shall also
be reimbursed by the Funds for fifty percent of the Company's
expenses payable in connection with the registration of the Shares
offered hereby.
SELLING STOCKHOLDER
The Selling Stockholder is Marvin M. Speiser. Mr. Speiser is
the Chairman of the Board, President, and a Director of the Company,
and currently, beneficially , owns 2,769,567 shares (approximately
34%) of the outstanding Common Stock (including the Shares offered
hereby). Upon completion of the Secondary Offering, Mr. Speiser will
beneficially own 2,452,161 shares (approximately 30%) of the
outstanding Common Stock.
LEGAL MATTERS
The validity of the issuance of the shares of Common Stock
offered hereby will be passed on for the Company by Hinckley, Allen &
Snyder, Boston, Massachusetts.
EXPERTS
The consolidated financial statements and the related financial
statement schedule of the Company as of December 31, 1995, and for
the year then ended which were included in the Company's Annual
Report Form 10-K for the year ended December 31, 1995, and
incorporated herein by reference, have been audited by Coopers &
Lybrand L.L.P., independent accountants as stated in their
report appearing therein. The consolidated financial statements and
related financial schedule of the Company as of December 31, 1994 and
for each of the two years in the period ended December 31, 1994 which
were included in the Company's Annual Report on Form 10-K for the
year ended December 31, 1995, and incorporated herein by reference
have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report appearing therein. In each case, these
financial statements have been so incorporated herein by reference in
reliance upon the respective reports of each such firm given upon
their authority as experts in accounting and auditing.
<PAGE>HEALTH-CHEM CORPORATION
_____________________
No dealer, salesman or other person has been authorized to give any
information or to make any representations not contained in this
Prospectus in connection with the offer contained in this Prospectus
by the Company. This Prospectus does not constitute an offer to sell
or the solicitation of any offer to buy the securities offered hereby
by anyone in any jurisdiction in which such offer or solicitation is
not authorized, or to any person to whom it is unlawful to make such
offer or solicitation. Neither the delivery of this Prospectus nor
any sale made hereunder shall, under any circumstances, create any
implication that information herein is correct as of any time
subsequent to the date hereof.
_____________________
TABLE OF CONTENTS
Page
Additional Information
Documents Incorporated by Reference
The Offering and Background
Use of Proceeds
Selling Stockholder
Legal Matters
Experts
_______________________
Prospectus dated November 1__, 1996
<PAGE>PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Estimated expenses payable in connection with the sale of Common
Stock offered hereby are as follows:
Amount
SEC Registration Fee $ 0.00
Legal Fees and Expenses $ 14,000.00
Accounting Fees and Expenses $ 4,000.00
Miscellaneous $ 2,000.00
Total$ 20,000.00
Item 15. Indemnification of Directors and Officers.
(a) Section 145 of the General Corporation Law of the State of
Delaware (Chapter 1, Title 8, Delaware Code of 1953) provides as
follows:
"(a) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that
he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees),
judgment, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests
of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action or suit or in the right of the
<PAGE>
corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred
to in subsections (a) and (b) of this section or in defense of
any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of
this section (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in subsections
(a) and (b) of this section. Such determination shall be made
(1) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit
or proceeding, or (2) if such a quorum is not obtainable, or,
even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or
(3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may
be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay
such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as authorized in
this Section. Such expenses (including attorneys' fees)
incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems
appropriate.
<PAGE>
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of
this section shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement or expenses
may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising
out of his status as such, whether or not the corporation would
have the power to indemnify him against such liability under this
section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall
stand in the same position under this section with respect to the
resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving
at the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner he 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.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall, unless
<PAGE>
otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person."
(b) Article NINTH of the Registrant's Restated Certificate of
Incorporation, as amended effective May 8, 1987, and to date,
provides as follows:
To the fullest extent permitted by the Delaware General
Corporation law in its present form or as it may hereafter be
amended, no director of the Corporation shall be liable to the
Corporation or any of its stockholders for monetary damages for
breach of fiduciary duty as a director. This Article NINTH shall
not eliminate or limit the liability of a director for any act or
omission occurring prior to the date that this Article NINTH
becomes effective.
(c) The Registrant has an insurance policy which insures the
Directors and Officers of the Registrant and its subsidiaries against
certain liabilities which might be incurred in connection with the
performance of their duties.
Item 16. Exhibits.
Exhibit No. Description of Exhibit
4.1 Form of Standby Stock Purchase Agreement
5 Opinion of Hinckley, Allen & Snyder
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Hinckley, Allen & Snyder
(included in Exhibit 5)
Item 17. 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:
(a) To include any material information with respect to
the plan or distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
herein, and the offering of such securities at
<PAGE>
that time shall be deemed to be the initial bona fide offering
hereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered hereby which remain
unsold at the termination of the Offering.
(4) 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;
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
(6) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(7) For purposes of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus 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.
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We consent to (a) the incorporation by reference in this
registration statement of Health-Chem Corporation on Form S-3 [Post-
Effective Amendment No. 1 to Form S-3 Registration Statement (File
No. 33-02411)] of our report dated March 15, 1996, (except the last
two paragraphs of Note 9 which are dated as of March 26, 1996) on our
audit of the consolidated financial statements and financial
statement schedule of Health-Chem Corporation as of December 31, 1995
and for the year then ended which report is included in the 1995
annual report on Form 10-K, which is incorporated by reference in
this Registration Statement on Form S-3 and (b) the reference to us
under the heading "Experts" in the Prospectus which is part of said
Registration Statement.
COOPERS & LYBRAND L.L.P.
One South Market Square
Harrisburg, PA
November 1______________, 1996
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement of Health-Chem Corporation on Form S-3 of our report dated
March 15, 1995, on our audit of the consolidated financial statements
and financial statement schedule of Health-Chem Corporation appearing
in the Health-Chem Corporation Annual Report on Form 10-K for the
year ended December 31, 1995, and to the reference to us under the
heading "Experts" in the Prospectus which is part of this
Registration Statement.
DELOITTE & TOUCHE LLP
Baltimore, MD
October 31_______________, 1996
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that
it meets all the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in The City of New York, State
of New York on November 1_________, 1996.
HEALTH-CHEM CORPORATION
By:/s/ Marvin M. Speiser
Marvin M. Speiser,
President
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Health-Chem
Corporation, hereby severally and jointly constitute and appoint
Marvin M. Speiser, Robert D. Speiser, Bruce M. Schloss and Paul Bork,
and each of them singly, our true and lawful attorneys, with full
power to them and each of them singly, to sign for us in our names in
the capacities indicated below, all pre-effective and post-effective
amendments to this Registration Statement, and generally do all
things in our names and on our behalf in such capacities to enable
Health-Chem Corporation to comply with the provisions of the
Securities Act of 1933, as amended, and all requirements of the
Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
Name and Signature Title(s) Date
/s/ Marvin M. Speiser President, Chief Executive November 1996
1,
Marvin M. Speiser Officer and Chairman of the
Board (Principal Executive
Officer
/s/ Robert D. Speiser Executive Vice President November 1996
1,
Robert D. Speiser and Director
<PAGE>
Name and Signature Title(s) Date
/s/ Steven Bernstein Senior Vice President and November 1996
1,
Steven Bernstein Director
/s/ Paul R. Moeller Vice President - Finance November 1, 1996
Paul R. Moeller and Director (Principal
Financial and Principal
Accounting Officer
/s/ Bruce M. Schloss Vice President, Secretary November 1, 1996
Bruce M. Schloss and Director
/s/ Martin Benis Director November 1, 1996
Martin Benis
/s/ Matthew Goldstein Director November 1996
1,
Matthew Goldstein
/s/ Samuel R. Goodson Director November 1996
1,
Samuel R. Goodson
/s/ Eugene Roshwalb Director November 1996
1,
Eugene Roshwalb
/s/ Milton Y. Zussman Director November 1996
1,
Milton Y. Zussman
#116557 v5
</TABLE>
47724/85205 116690 v5 7
<PAGE>
STANDBY STOCK PURCHASE AGREEMENT
STANDBY STOCK PURCHASE AGREEMENT, dated as of November 1__, 1996,
by and among the purchasers listed on Schedule 1 attached
hereto and hereby made a part hereof (hereinafter individually a
"Purchaser" and collectively the "Purchasers"), Marvin M. Speiser
("Speiser") and Health-Chem Corporation, a Delaware corporation
("Health-Chem").
WHEREAS, Health-Chem has the right to acquire from Speiser (i)
215,028 shares of common stock, par value $.01 per share Common Stock
("Common Stock"), pursuant to an Option Agreement dated August 30, 1991
and (ii) 102,378 shares of Common Stock pursuant to an Option Agreement
dated July 15, 1994 such shares collectively hereinafter referred to as
the "Option Shares"); and
WHEREAS, Health-Chem is prohibited from directly exercising its
options to acquire the Option Shares by covenants contained in certain
debt instruments to which Health-Chem is bound and by the terms of said
Option Agreements; and
WHEREAS, the Option Shares, together with approximately 1,000,000
additional shares of Common Stock had been included in a Subscription
Rights Offering made by Health-Chem to its stockholders of record as of
August 2, 1996 (the "Subscription Offering") which expired on September
16, 1996; and
WHEREAS, the Purchasers have offered to purchase that number of
shares of common stock (the "Shares") equal to the total number of
Option Shares, at the same price per share as the subscription exercise
price in the Subscription Offering provided that such sale of Option
Shares is registered under the Securities Act of 1933, as amended (the
"Securities Act"); and
WHEREAS, Health-Chem believes that the sale of the Shares to the
Purchasers would be entirely consistent with and would advance the
corporate purposes for which the Subscription Offering was undertaken,
namely, to increase the float of Common Stock without increasing the
number of shares of Common Stock outstanding, while at the same time
providing to Health-
<PAGE>
Chem substantially the equivalent benefit of the exercise of its
options to acquire the Option Shares; and
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Registration of Shares. The Shares of Common Stock shall be
registered pursuant to a registration statement (the "Registration
Statement") on Form S-3 filed with the Securities and Exchange
Commission (the "SEC") under the Securities Act. Health-Chem, Speiser
and the Purchasers shall use their best efforts to cooperate in
order that the Registration Statement be declared effective as soon as
practicable following the filing thereof.
2. Purchase of the Shares. On the first business day following
the effectiveness of the Registration Statement, or such later date,
not later than December 15, 1996, as the parties may agree to in
writing (the "Closing Date"), provided that all other conditions to
closing have been satisfied or waived and that no "stop-order" has been
issued by the SEC in respect of the Registration Statement, each
Purchaser shall purchase the number of Shares set forth opposite its
name on Schedule 1 at $1.10 per share (the "Purchase Price") for an
aggregate purchase price of $349,146.60. The Purchasers' obligation
hereunder is joint and several, and in the event a Purchaser fails to
purchase the number of shares set forth on Schedule 1 the other
Purchasers shall be obligated to purchase such shares and perform all
other obligations of the defaulting Purchaser. At the Closing, each
Purchaser shall receive one or more certificates for the Shares
purchased by it duly executed and registered in its name as set
forth on Schedule 1. All such Shares shall be duly authorized and issued,
validly paid and non-assessable Shares of Common Stock of Health-Chem.
3. Exercise of Option. On the Closing Date, Health-Chem shall
exercise its repurchase rights under the Option Agreements and
repurchase the Option Shares from Speiser at a per share price equal to
the weighted average exercise price for all of the Option Shares (the
"Average Option Price") under the Option Agreements. The aggregate
exercise price for the
<PAGE>
Option Shares shall be paid to Speiser from the proceeds of the sale of
the Shares to the Buyer. The difference, if any, between the aggregate
Purchase Price and the aggregate exercise price for the Option Shares
shall be applied by Health-Chem to defray a portion of the costs
associated with the Registration Statement.
4. Payment at Closing. All payments at closing of the Purchase
Price and the aggregate exercise price shall be made to Health-Chem
by wire transfer
or in other immediately available funds against delivery of
certificates representing such shares of Common Stock. All shares of
Common Stock provided by Speiser shall be free and clear of any claims,
liens or encumbrances (other than as may be hereby created in favor of
the Purchasers).
5. Closing. The closing of the sale of the Shares shall be held
at 10:00 a.m. New York Time on the Closing Date at the offices of
Health-Chem, 1212 Avenue of the Americas, New York, New York, or at
such other time or place as the parties may hereafter designate in
writing.
6. Payment of Registration Expenses. At the Closing, each
Purchaser shall also deliver to Health-Chem its check payable to the order
of Health-Chem to the order of Health-Chem in an amount
equal to its proportionate share (based on the number of Shares
purchased by such Purchaser to the total number of Shares) of one-half
(1/2) of the total expenses of the Offering, as set forth in Part II of
the Registration Statement. If the Purchasers terminate this Agreement
pursuant to the provisions of Section 9(a)(i), each Purchaser shall,
within five (5) business days of such termination deliver to Health-
Chem its check payable to the order of
Health-Chem in an amount equal to its proportionate share (based on
the number of Shares set forth opposite its name on Schedule 1) of the
lesser of (i) ten thousand dollars ($10,000.00) or (ii) one-half (1/2)
of the total expenses of the Offering, as set forth in Part II of the
Registration Statement. If Health-Chem or Speiser terminate this Agreement,
or if the Purchasers terminate this Agreement for
breach of a representation or warranty set forth in Section 7 or 8
hereunder, or pursuant to Section 9 (a)(ii) hereunder, the Purchasers shall
not be required to reimburse Health-
Chem for any expenses of the Offering.
7. Representations and Warranties of Health-Chem. Health-Chem
represents and
<PAGE>
warrants to the Purchasers that:
(a) Health-Chem is a corporation duly organized, validly
existing and in good standing under the laws of the state of Delaware,
with all necessary corporate power and authority, and all required
licenses, permits, certifications, registrations, approvals, consents
and franchises to own or lease and operate its properties and to
conduct its business and to execute, deliver and perform this
Agreement. Health-Chem is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified would
not have a material adverse effect on the business of Health-Chem.
(b) This Agreement has been duly authorized, executed and
delivered by Health-Chem and constitutes its valid and binding
obligations, enforceable against Health-Chem.
(c) The Shares have been duly authorized and when sold to
the Purchasers in accordance with the terms of this Agreement
shall be validly issued, fully paid and non-assessable shares of Common
Stock. Upon the consummation of the transactions contemplated hereby,
the Shares shall be freely tradable by each Purchaser without further
registration under the Securities Act of 1933.
(d) At the time of the sale to the Purchasers, neither the
Registration Statement nor any information incorporated therein by
reference shall contain any untrue statement of material fact, or omit
any information necessary to make the statements therein not
misleading.
8. Representation and Warranties of Speiser.
Speiser represents and warrants to the Purchasers that:
(a) This Agreement has been duly authorized, executed and
delivered by Speiser and constitutes his valid and binding obligations,
enforceable against Speiser.
(b) The Option Shares are owned by Speiser, free and clear
of all liens, encumbrances, and claims other than those arising under
the Option Agreements, all of which shall be satisfied, released, and
terminated on the Closing Date.
9. Right of Termination.
<PAGE>
a. Each of Speiser, Health-Chem and the Purchasers
(collectively) shall have the right to terminate this Agreement upon
notice to the other parties at any time prior to the Closing Date if
any of the following have occurred (whether or not considered "adverse"
to Health-Chem or to the value of the Shares):
i. Since the respective dates as of which information
is given in the Registration Statement, any material change or any
development involving a prospective material change in or affecting the
condition, financial or otherwise, of Health-Chem, or the earnings,
business affairs, management or business prospects of Health-Chem
whether or not arising in the ordinary course of business, or
ii. trading in any securities of Health-Chem shall have
been suspended or halted by the AMEX or the SEC.
b. The Purchaser shall also have the right to terminate this
Agreement upon notice to the other parties at anytime prior to the Closing Date
in the event of a breach of a
representation or warranty hereunder by Health-Chem or Speiser.
c. If any party elects to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this
Section 9, such party shall notify the other parties thereof promptly
by telephone, telex, telegraph or facsimile, confirmed by letter.
10. Binding Effect. Except as otherwise provided herein, the
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators,
successors, legal representatives and assigns.
11. Entire Agreement; Modification. This Agreement constitutes
the entire agreement among the parties hereto with respect to the
subject matter hereof, and neither this Agreement nor any provisions
hereof shall be waived, changed, discharged or terminated except by an
instrument in writing signed by the party against whom any waiver,
change, discharge or termination is sought.
<PAGE>
12. Notices. All notices, requests, demands and other
communications which are required or may be given under this Agreement
shall be in writing and shall be deemed to be duly given to be
delivered if delivered personally or by a nationally recognized courier
service or on the third business day following deposit with the U.S.
Postal Service as certified or registered mail (return receipt
requested), postage prepaid, and shall be addressed:
If to Speiser: If to Health-Chem:
Marvin M. Speiser Health-Chem Corporation
c/o Health-Chem Corporation 1212 Avenue of the Americas
1212 Avenue of the Americas New York, NY 10036
New York, NY 10036 Attention: Bruce M. Schloss, Esq.
Vice President and Secretary
with a copy to: with a copy to:
Thomas P. Desmond, Esq. Paul Bork, Esq.
Vedder, Price, Kaufman Hinckley, Allen & Snyder
& Kammholz One Financial Center
222 North LaSalle Street Boston, MA 02111-2625
Chicago, IL 60601-10037
If to any Purchaser:
c/o Ladenburg, Thalmann & Co. Inc.
590 Madison Avenue
New York, NY 10022
Attention: Jay Petschek, Managing Director
with a copy to:
Richard Gilden, Esq.
Fulbright & Jaworski, LLP
666 Fifth Avenue
New York, NY 10103
or to such other address as the parties shall have specified by notice
in writing to the others.
13. Expenses; Further Assurances. Except as may otherwise be
specifically provided herein, each party shall bear its own expenses
associated with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby. At the request
of any party, a party will promptly execute and deliver, or cause to
be executed and delivered, all such documents or instruments as may
reasonably be necessary or desirable to carry out or implement any
provision of this Agreement.
<PAGE>
14. Governing Law. This Agreement and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the
laws of the State of New York, excluding its conflict of laws rules.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the day and year first above written.
HEALTH-CHEM CORPORATION
________________________ By:________________________
Marvin M. Speiser, individually Bruce M.Schloss , its Vice President
THE PURCHASERS:
CORSAIR CAPITAL PARTNERS L.P.
a Delaware Limited Partnership
By: _______________________
Jay Petschek, its General Partner
CORSAIR CAPITAL PARTNERS II L.P.
a Delaware Limited Partnership
By: CORSAIR MANAGING PARTNERS,
its General Partner, a New York
General Partnership
By:CORSAIR MANAGEMENT
COMPANY, INC.,
_______________________ its
General Partner, a New York
Corporation
By:________________
Jay Petschek, its
President_____________________________
LEVITICUS PARTNERS, L.P.
a Delaware Limited Partnership
By: AMH EQUITIES LTD its
General Partner, a New York
Corporation
By:_______________________
Adam M. Hutt, its President
<PAGE>
SCHEDULE 1
ALLOCATED
PERCENTAGE
OF REGISTRATION
BUYER SHARES COSTS
CORSAIR CAPITAL PARTNERS, L.P. 160,000 shares 50%
Jay Petschek, General Partner
c/o Ladenberg, Thalmann & Co., Inc.
590 Madison Avenue
New York, NY 10022
CORSAIR CAPITAL PARTNERS, II, L.P 40,000 shares 13%
CORSAIR MANAGING PARTNERSHIP, General Partner
c/o Ladenberg, Thalmann & Co., Inc.
590 Madison Avenue
New York, NY 10022
LEVITICUS PARTNERS, L.P. 117,406 shares 37%
AMH EQUITIES LTD, General Partner
c/o Ladenberg, Thalmann & Co., Inc.
590 Madison Avenue
New York, NY 10022
Health-Chem Corporation
November __, 1996
Page 2
<PAGE>
November 1, 1996
Health-Chem Corporation
1212 Avenue of the Americas
New York, NY 10036
Re: Registration Statement on Form S-3
Gentlemen:
We have acted as special counsel to Health-Chem
Corporation (the "Company") in connection with the
registration under the Securities Act of 1933, as amended
(the "Act"), of 317,406 shares of the Company's common stock,
$.01 par value per share (the "Shares"), pursuant to
Registration Statement on Form S-3 filed on or about this
date (the "Registration Statement").
In rendering the opinion set forth below, we have
examined certain corporate records of the Company, including
its Restated Certificate of Incorporation, as amended, its By-
laws, minutes of meetings of its Board of Directors and
shareholders and such other documents, instruments and
certificates of government officials and officers of the
Company as we have deemed necessary.
In making our examination as set forth above, we have
assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as
certified or photostatic copies, the authenticity of the
originals of such latter documents, the legal capacity of all
natural persons executing the documents and the accuracy and
completeness of all corporate records made available to us by
the Company.
We have made such examination of the General Corporation
Law of the State of Delaware (the "General Corporation Law")
as we have deemed relevant for purposes of this opinion, but
we have not made any review of the laws of any other state or
jurisdiction. Accordingly, this opinion is limited to said
General Corporation Law.
Based upon and subject to the foregoing, we are of the
opinion that:
1. The Company is validly existing as a corporation
under said General Corporation Law; and
2. The Shares to be sold pursuant to the Secondary
Offering, as that term is used in the Prospectus,
are duly authorized, validly issued, fully paid and
non-assessable.
We consent to the filing of the opinion as an exhibit to
the Registration Statement and the reference to our firm in
the Registration Statement in the Section entitled "Legal
Matters".
Very truly yours,
HINCKLEY, ALLEN & SNYDER
047724/085205 19505
