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As filed with the Securities and Exchange Commission on September 22, 1998
Registration No. _________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MACDERMID, INCORPORATED
(Exact name of issuer as specified in its charter)
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Connecticut 06-0435750
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(State or other jurisdiction of incorporation or organization) (I.R.S. employer identification no.)
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245 FREIGHT STREET, WATERBURY, CONNECTICUT 06702
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(Address of principal executive offices)
MACDERMID, INCORPORATED
STOCK OPTION PLAN
(Full title of plans)
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DANIEL H. LEEVER Copy to:
MACDERMID, INCORPORATED MICHAEL E. MOONEY, ESQ.
245 FREIGHT STREET NUTTER, MCCLENNEN & FISH, LLP
WATERBURY, CONNECTICUT 06702 ONE INTERNATIONAL PLACE
(203) 575-5700 BOSTON, MASSACHUSETTS 02110-2699
(Name, address and telephone (617) 439-2000
number of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed
Title of each class of securities to be Amount being registered maximum offering Proposed maximum Amount of
registered (1) price per share aggregate offering price registration fee
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Common Stock,
no par value per share 1,500,000 Shares $24.41(2) $36,615,000 $10,801.43
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(1) This Registration Statement covers 1,500,000 shares of Common Stock
underlying awards that may be granted pursuant to the Stock Option
Plan. In addition, pursuant to Rule 416(b) under the Securities Act of
1933, as amended (the "Securities Act"), this Registration Statement
also covers an indeterminate number of additional shares of Common
Stock which may be issued under said Plans as a result of a stock
dividend, stock split or other recapitalization.
(2) Calculated pursuant to Rules 457(c) and (h) of the Securities Act as
the average of the high and low prices per share of the registrant's
Common Stock reported in the consolidated reporting system on September
15, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
MacDermid, Incorporated (the "Company") hereby incorporates by reference in
this Registration Statement the following documents and information heretofore
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
March 31, 1998;
(b) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1998; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 001-13889).
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), prior to the filing of any post-effective amendment which
indicates that all securities offered hereunder 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 such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that any other subsequently-filed document which also is incorporated or
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.
Nutter, McClennen & Fish, LLP serves as counsel to the Company, and has
rendered a legal opinion with respect to the validity of the shares being
offered pursuant to this Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Connecticut Business Corporation Act, Sections 33-770 to 33-778, inclusive,
and Article 11 of the registrant's by-laws, contain provisions authorizing
indemnification by the registrant of directors, officers and employees of the
registrant against certain liabilities and expenses which they may incur as
directors, officers and employees of the registrant or of certain other
corporations. Section 33-773 also provides that such indemnification may include
payment by the registrant of expenses incurred in
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defending a proceeding in advance of the final disposition of such proceeding,
upon certain representations being made by such indemnified person as to his or
her good faith belief that he or she has met the relevant standard of conduct
and upon agreement by the person indemnified to repay such payment if he or she
shall be adjudicated not entitled to be indemnified under Sections 33-772,
33-774 or 33-775.
Section 33-777 provides that the registrant may purchase and maintain
insurance on behalf of an individual who is a director, officer, employee or
agent of the corporation, or who, while a director, officer, employee or agent
of the corporation, serves at the corporation's request as a director, officer,
employee or agent of another entity against liability asserted against or
incurred by such person in such capacity, whether or not the corporation would
have power to indemnify or advance expenses to him against the same liability
under Sections 33-770 to 33-778 inclusive. The Registrant maintains an officer's
and director's liability insurance policy.
ITEM 7. EXEMPTION FROM REGISTRATION.
Not applicable.
ITEM 8. EXHIBITS.
See the exhibit index immediately preceding the exhibits attached hereto.
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 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.
(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.
(4) 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 Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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(b) 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 a 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.
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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 Waterbury, Connecticut, on the 22nd day of September 1998.
MACDERMID, INCORPORATED
/s/ Daniel H. Leever
By: ______________________________________
Daniel H. Leever
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons on
behalf of the registrant in the capacities and on the dates indicated.
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Signatures Title Date
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/s/ Daniel H. Leever President, Chief Executive Officer September 22, 1998
___________________________ and Chairman of the Board
Daniel H. Leever
/s/ Gregory M. Bollingbroke Principal Financial and Accounting September 22, 1998
___________________________ Officer and Controller
Gregory M. Bolingbroke
/s/ Harold Leever Director September 22, 1998
___________________________
Harold Leever
/s/ Donald G. Ogilvie Director September 22, 1998
___________________________
Donald G. Ogilvie
/s/ James C. Smith Director September 22, 1998
___________________________
James C. Smith
/s/ Thomas W. Smith Director September 22, 1998
___________________________
Thomas W. Smith
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EXHIBIT INDEX
Exhibit No. Title
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4 Stock Option Plan
5 Opinion of Nutter, McClennen & Fish, LLP
23.1 Consent of Nutter, McClennen & Fish, LLP (included in Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP
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EXHIBIT 4
MACDERMID, INCORPORATED
STOCK OPTION PLAN
Dated July 6, 1998
1. PURPOSES. The purposes of the MacDermid, Incorporated Stock Option
Plan (the "Plan") are (i) to enable MacDermid, Incorporated and its subsidiary
corporations (hereinafter referred to, unless the context otherwise requires, as
the "Company") to grant to its employees who are in a position to make a notable
contribution to the welfare of the Company, the means to acquire a proprietary
interest in the Company, in order that such persons will have additional long
term financial incentives to contribute to the Company's growth and
profitability, and (ii) to enhance the ability of the Company to attract and
retain in its employ individuals of outstanding ability upon whom the success of
the Company will depend.
2. ADMINISTRATION. The Plan shall be administered by a committee of
not fewer than two members of the Board of Directors (the "Committee") appointed
by the Board of Directors of the Company (the "Board"). Each member of the
Committee shall be a "disinterested person" within the meaning of Rule 16b-3(b)
under the Securities Exchange Act of 1934, as amended (the "Act") and an
"outside director" within the meaning of Section 162(m)(4)(C)(i) of the Internal
Revenue Code of 1986, as amended (the "Code"). The Committee may adopt such
rules and regulations as it may deem necessary or advisable for the
administration of the Plan.
3. GRANT OF AWARDS. Subject to the terms and provisions of the Plan,
options to purchase shares of Common Stock of the Company shall be granted on
behalf of the Company by the Committee. Subject to the terms of the Plan, the
Committee may place restrictions on options granted, as the Committee deems
appropriate.
4. SHARES SUBJECT TO THE PLAN. Subject to adjustment as provided
herein, an aggregate of one million five hundred thousand (1,500,000) shares of
the Common Stock of the Company (the "Common Stock"), shall be available for
issuance pursuant to options granted under the Plan. Such shares may be
authorized and unissued shares or shares held in the Company's treasury. All
shares subject to options that shall have terminated or shall have been
forfeited in whole or in part or cancelled for any reason (other than by
surrender for cancellation upon any exercise of all or part of such options)
shall be available for issuance pursuant to options granted subsequently under
the Plan. In no event shall any employee receive, in any calendar year, options
to purchase more than one million shares.
5. PARTICIPANTS. All key employees of the Company who are in a
position to make a notable contribution to its welfare shall be eligible to
receive options and thereby become participants in the Plan. Receipt of an
option shall in no way be deemed to constitute a contract or promise of
continued employment by the Company.
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6. OPTION PRICE. The purchase price per share purchasable upon
exercise of an option under the Plan shall be set by the Committee at a premium
over the fair market value of such shares at the time the option is granted,
with such premium to be determined by the Committee.
7. VESTING. Subject to shareholder approval, all options granted under
the Plan shall vest in and become exercisable by the grantee immediately upon
grant by the Committee, except as otherwise provided by the Committee at the
time of grant.
8. OPTION PERIOD. Subject to Section 12, the period for exercising an
option (the "Exercise Period") shall begin on the later of (i) the date of
grant, and (ii) the date of approval of the Plan by the Company's shareholders,
and shall end ten (10) years after the date of grant. Notwithstanding the
foregoing, unless specifically determined otherwise by the Committee, the
Exercise Period shall automatically terminate ninety (90) days after the grantee
ceases to be employed by the Company on a full time basis, for any reason.
9. PAYMENT FOR SHARES AND RELATED MATTERS. Full payment for shares
purchased, together with the amount of any tax or excise due in respect of the
sale and issue thereof, shall be paid at the time of exercise of an option and
shall be made in cash or by certified or bank cashier's check or, in the
discretion of the Committee, in whole or in part by delivery of shares of Common
Stock of the Company having a fair market value at the date of such delivery
(determined in a manner approved by the Committee) of not less than the amount
for which payment is being made by delivery of the shares. The Company shall
issue no certificates for shares until (a) full payment therefor has been made
and (b) the participant purchasing such shares provides for payment to (or
withholding by) the Company of all amounts required under then applicable
provisions of the Internal Revenue Code of 1986, as amended, and state and local
tax laws to be withheld with respect to such purchase, and a participant shall
have none of the rights of a stockholder until certificates for the shares
purchased are issued to him or her.
10. NONTRANSFERABILITY. Unless specifically determined otherwise by
the Committee, no option shall be assignable or transferable by a participant
otherwise than by will or by the laws of descent and distribution or pursuant to
a qualified domestic relations order as defined by the Internal Revenue Code of
1986, as amended, or Title I of the Employee Retirement Security Act of 1974, or
the rules thereunder. Each option shall be exercisable during the lifetime of a
participant only by such participant, except that, if permissible under
applicable law, an option may also be exercised by the guardian or legal
representative of a participant.
11. EFFECT OF CHANGES IN COMMON STOCK. In the event that the
outstanding shares of Common Stock of the Company are increased or decreased as
a result of a stock dividend, stock split, recapitalization or other means
having the same effect, the number of shares available for issuance under the
Plan, the number of shares issuable pursuant to any outstanding option, and the
exercise price of any option outstanding under the Plan, shall be adjusted as
the Committee shall deem appropriate, in its sole discretion, to preserve
unimpaired the rights of the participants. All determinations made by the
Committee hereunder shall be conclusive and binding upon the participants.
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12. EFFECT OF REORGANIZATION. In case of any one or more
reclassifications, changes or exchanges of outstanding shares of Common Stock or
consolidations of the Company with, or mergers of the Company into, other
corporations, or other recapitalizations or reorganizations (other than
consolidations with a subsidiary in which the Company is the continuing
corporation and which do not result in any reclassifications, changes or
exchanges of outstanding shares of Common Stock), or in case of any one or more
sales or conveyances to another corporation of the property of the Company as an
entirety, or substantially as an entirety, any and all of which are hereinafter
in this Section called "Reorganizations," the Committee shall have the right to
substitute in any previously granted options, the same kind and amount of
securities and property which any participant would then have if such
participant had exercised such option immediately before the first of any such
Reorganizations and continued to hold all securities and property which came to
such participant as a result of that and subsequent Reorganizations, less all
securities and property surrendered or cancelled pursuant to any of same, the
adjustment rights in Section 11 and this Section being continuing and
cumulative. In any such event, such options may be exercised or converted, to
the extent permitted by their terms, prior to or simultaneously with the
consummation of such Reorganization.
13. EFFECTIVE DATE OF PLAN. Subject to the approval of the
shareholders of the Company, the Plan shall be effective on July 6, 1998. Prior
to such approval, options may be granted under the Plan expressly subject to
such approval.
14. AMENDMENT AND TERMINATION MODIFICATION. The Board by resolution at
any time may amend, suspend or terminate the Plan, provided that (i) no such
action shall be taken which impairs the rights of any participant under any
outstanding option, without such participant's consent, and (ii) no amendment
shall be made without shareholder approval if such approval is necessary to
comply with any applicable tax or regulatory requirement, including any
requirements for exemptive relief under Section 16(b) of the Act, or any
successor provision. The Committee may substitute new options for, or modify the
terms of, options previously granted to participants, including, without
limitation, previously granted options having higher exercise prices, provided
that no such action shall be taken which impairs the rights of any participant
under any outstanding option, without such participant's consent.
15. SECTION 16 EXEMPTION. The Committee shall take all reasonable
measures to qualify for the exemption provided by Rule 16b-3 of the Act, the
grant and exercise of options to acquire Common Stock by the Plan participants
who are subject to Section 16 of the Act. The Committee and the Board shall have
no authority to take any action if the authority to take such action, or the
taking of such action, would disqualify the Plan from the exemption provided by
Rule 16b-3 under the Act, and any successor provision.
16. INTERPRETATION. The interpretation and construction of any
provision of the Plan and the adoption of rules and regulations for
administering the Plan shall be made by the Committee. Determinations made by
the Committee with respect to any matter or provision contained in the Plan
shall be made in the Committee's sole discretion and shall be final, conclusive
and binding upon the Company and upon all participants, their heirs and legal
representatives. Any rule or regulation
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adopted by the Committee (whether under the authority of this Section or Section
2 above) shall remain in full force and effect unless and until altered, amended
or repealed by the Committee.
4
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EXHIBIT 5
NUTTER, McCLENNEN & FISH, LLP
ATTORNEYS AT LAW
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2699
TELEPHONE: 617-439-2000 FACSIMILE: 617-973-9748
CAPE COD OFFICE DIRECT DIAL NUMBER
HYANNIS, MASSACHUSETTS
September 22, 1998
MacDermid, Incorporated
245 Freight Street
Waterbury, Connecticut 06702
Gentlemen/Ladies:
Reference is made to the Registration Statement on Form S-8 (the
"Registration Statement") which MacDermid, Incorporated (the "Company") is
filing concurrently herewith with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
1,500,000 shares of common stock, no par value per share (the "Common Stock"),
issuable pursuant to the Stock Option Plan (the "Plan") and an indeterminate
number of shares of such Common Stock which may be issued or become issuable
under the Plan by reason of stock dividends, stock splits or other
recapitalizations executed hereafter.
We have acted as legal counsel for the Company in connection with
adoption of the Plan, are familiar with the Company's Certificate of
Incorporation and By-laws, both as amended to date, and have examined such other
documents as we deemed necessary for this opinion. Based upon the foregoing, we
are of the opinion that:
1. When issued and paid for in compliance with the terms of the Plan,
the 1,500,000 shares of Common Stock referred to above will be duly and validly
issued, fully paid and non-assessable; and
2. The additional shares of Common Stock which may become issuable
under the Plan by reason of stock dividends, stock splits or other
recapitalizations hereafter executed, if and when issued in accordance with the
terms of the Plan and upon compliance with the applicable provisions of law and
of the Company's Certificate of Incorporation and By-laws, both as amended to
date, will be duly and validly issued, fully paid and non-assessable.
We understand that this opinion letter is to be used in connection
with the Registration Statement and hereby consent to the filing of this opinion
letter with and as a part of the
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MacDermid, Incorporated
September 22, 1998
Registration Statement and of any amendments thereto. It is understood that this
opinion letter is to be used in connection with the offer and sale of the
aforesaid shares only while the Registration Statement, as it may be amended
from time to time as contemplated by Section 10(a)(3) of the Securities Act, is
effective under the Securities Act.
Very truly yours,
/s/ NUTTER, McCLENNEN & FISH, LLP
MEM/NCH
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EXHIBIT 23.2
The Board of Directors
MacDermid, Incorporated:
We consent to incorporation by reference in the registration statement
on Form S-8 of MacDermid, Incorporated of our reports dated May 14, 1998,
relating to the consolidated balance sheets of MacDermid, Incorporated and
subsidiaries as of March 31, 1998, and 1997, and the related consolidated
statements of earnings, cash flows and shareholders' equity for each of the
years in the three-year period ended March 31, 1998, and the related schedule,
which reports appear or are incorporated by reference in the March 31, 1998
annual report on Form 10-K of MacDermid, Incorporated.
/s/ KPMG Peat Marwick LLP
Hartford, Connecticut
September 22, 1998
