As filed with the Securities and Exchange Commission on May 22, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------
DRYCLEAN USA, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-2014231
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
290 N.E. 68th Street, Miami, Florida 33138
(Address of Principal Executive Offices) (Zip Code)
1991 STOCK OPTION PLAN
(Full title of the plan)
Mr. Michael Steiner
President
DRYCLEAN USA, Inc.
290 N.E. 68th Street
Miami, Florida 33138
(Name and address of agent for service)
(305) 754-4551
(Telephone number, including area code, of agent for service)
with a copy to:
Richard A. Rubin, Esq.
Parker Chapin LLP
405 Lexington Avenue
New York, New York 10174
Approximate date of commencement of proposed sale to public: From time to
time after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------
Title of each Proposed maximum Amount of
class of securities Amount to be Proposed maximum aggregate offering registration
to be registered registered (1) offering price per share price fee
----------------------- ---------------- ------------------------ ----------------------- --------------
<S> <C> <C> <C> <C> <C>
Common 30,000 shares $0.8125 (2) $ 24,375.00 (2) $ 6.44
Stock, par value 505,000 shares $1.00 (2) $ 505,000.00 (2) $133.32
$.025 per share 75,000 shares $2.00 (2) $ 140,000.00 (2) $ 36.96
10,000 shares $0.8125 (3) $ 8,125.00 (3) $ 2.15
50,000 shares $1.0313 (3) $ 5,156.50 (3) $ 1.36
230,000 shares $1.875 (4) $ 431,250.00 (4) $113.85
----------------------------------------------------------------------------------------------------------------------------
Total 900,000 shares $ ,113,906.50 $ 294.08
----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(b), there is also be deemed covered hereby all
additional securities resulting from anti-dilution adjustments under
the 1991 Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee on
the basis of, pursuant to Rule 457(h)(1), the price at which such
outstanding options may be exercised.
(3) Estimated solely for the purpose of calculating the registration fee on
the basis of, pursuant to Rule 457(h)(1), the price at which such
outstanding options have been exercised. These shares are included
herein in the event the registrant determines to file a re-offer
prospectus through a post-effective amendment hereto covering such
shares.
(4) Estimated solely for the purpose of calculating the registration fee on
the basis of, pursuant to Rules 457(h)(1) and 457(c), the average of
the high and low sales prices per share of the registrant's Common
Stock on the American Stock Exchange, as reported in the consolidated
reporting system, on May 19, 2000.
<PAGE>
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1999 and the registrant's Quarterly Reports on Form 10-QSB for the
quarters ended September 30, 1999, December 31, 1999 and March 31, 2000, all as
heretofore filed (File No. 0-9040) by the registrant with the Securities and
Exchange Commission (the "Commission") pursuant to Section 13(a) of the
Securities Exchange Act of 1934 (the "1934 Act"), and the description of the
registrant's Common Stock contained in the registrant's Registration Statement
on Form 8-A filed on October 28, 1999 under the 1934 Act, including any
amendment or report filed for the purpose of updating such description, are
incorporated herein by reference.
All documents filed subsequent to the date of this Registration
Statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act, prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein modifies or supersedes such 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.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") provides, in general, that a corporation incorporated under the
laws of the State of Delaware, such as the registrant, 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 (other than a derivative action
by or in the right of the corporation) by reason of the fact that such person 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 enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person 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 such person's
conduct was unlawful. In the case of a derivative action, a Delaware corporation
may indemnify any such person against expenses (including attorneys' fees)
II-2
<PAGE>
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, 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 determines such person is fairly and reasonably entitled to indemnity for
such expenses.
Article Thirteenth of the registrant's Certificate of Incorporation, as
amended, provides that, to the full extent authorized by law, the registrant
shall indemnify, and advance expenses to, any person made or threatened to be
made a party to an action, suit or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that he, his heir,
executor or administrator, is or was a director, officer, employee or agent of
the registrant or serves or served at the request of the registrant as a
director, officer, employee or agent of any other corporation, partnership,
joint venture, trust or other enterprise.
Article VI of the registrant's By-Laws implements the provisions of the
registrant's Certificate of Incorporation and sets forth procedures therefor.
The registrant maintains a Directors' and Officers' Liability Insurance
Policy, including Company Reimbursement, with Great American Insurance Company,
insuring (a) the directors and officers of the registrant against loss arising
from any claim or claims made against them by reason of, with certain
exceptions, any actual or alleged error, misstatement, misleading statement act
or omission, or neglect or breach of duty by them in the discharge of their
duties in their capacity as directors or officers of the registrant,
individually or collectively, or by virtue of their status as directors or
officers and (b) the registrant against loss arising from the registrant's
obligation to indemnify directors and officers against such wrongful acts. The
coverage of such policy is $1,000,000 (subject to specified retention amounts in
the case of claims for reimbursement of the Company).
In addition, Article Sixteenth of the registrant's Certificate of
Incorporation, as amended, provides, in general, that no director of the
registrant shall be liable to the registrant or any of its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the registrant
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL (which provides that under certain circumstances,
directors may be jointly and severally liable for willful or negligent
violations of the DGCL provisions regarding the payment of dividends or stock
repurchases or redemptions), or (iv) for any transaction from which the director
derived an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not Applicable.
II-3
<PAGE>
Item 8. Exhibits.
Exhibit
Number
- ------
4.1(a) Certificate of Incorporation of the registrant, as filed with the
Secretary of State of the State of Delaware on June 30, 1963.
Incorporated by reference to Exhibit 4.1(a) to the registrant's Current
Report on Form 8-K dated (date of earliest event reported) October 29,
1998, File No. 0-9040.
4.1(b) Certificate of Amendment to the Certificate of Incorporation of the
registrant, as filed with the Secretary of State of the State of
Delaware on March 27, 1968. Incorporated by reference to Exhibit 4.1(b)
to the registrant's Current Report on Form 8-K dated (date of earliest
event reported) October 29, 1998, File No. 0-9040.
4.1(c) Certificate of Amendment to the Certificate of Incorporation of the
registrant, as filed with the Secretary of State of the State of
Delaware on November 4, 1983. Incorporated by reference to Exhibit
4.1(c) to the registrant's Current Report on Form 8-K dated (date of
earliest event reported) October 29, 1998, File No. 0-9040.
4.1(d) Certificate of Amendment to the Certificate of Incorporation of the
registrant, as filed with the Secretary of State of the State of
Delaware on November 5, 1986. Incorporated by reference to Exhibit
4.1(d) to the registrant's Current Report on Form 8-K dated (date of
earliest event reported) October 29, 1998, File No. 0-9040.
4.1(e) Certificate of Change of Location of Registered Office and of Agent, as
filed with the Secretary of State of the State of Delaware on December
31, 1986. Incorporated by reference to Exhibit 4.1(e) to the
registrant's Current Report on Form 8-K dated (date of earliest event
reported) October 29, 1998, File No. 0-9040.
4.1(f) Certificate of Ownership and Merger of Design Development Incorporated
into the registrant, as filed with the Secretary of State of the State
of Delaware on June 30, 1998. Incorporated by reference to Exhibit
4.1(f) to the registrant's Current Report on Form 8-K dated (date of
earliest event reported) October 29, 1998, File No. 0-9040.
4.1(g) Certificate of Amendment to the Certificate of Incorporation of the
registrant as filed with the Secretary of State of the State of
Delaware on October 30, 1998. Incorporated by reference to Exhibit
4.1(g) to the registrant's Current Report on Form 8-K dated (date of
earliest event reported) October 29, 1998, File No. 0-9040.
4.1(h) Certificate of Amendment to the Certificate of Incorporation of the
registrant, as filed with the Secretary of State of Delaware on
November 5, 1999. Incorporated by reference to Exhibit 4.1 to the
registrant's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1999, File No. 0-9040.
II-4
<PAGE>
4.2 By-Laws of the registrant, as amended. Incorporated by reference to
Exhibit 4.2 to the registrant's Quarterly Report on Form 10-QSB for the
quarter ended September 30, 1999, File No. 0-9040.
*5.1 Opinion and consent of Parker Chapin LLP as to the legality of the
Common Stock being offered.
*23.1 Consent of BDO Seidman, LLP
*23.2 Consent of Parker Chapin LLP (contained in Exhibit 5.01).
*24.1 Powers of Attorney of officers and directors of the registrant
(included as part of the signature page hereto).
99.1 The registrant's 1991 Stock Option Plan, as amended. Incorporated by
reference to Exhibit 99.3 to the registrant's Current Report on Form
8-K dated (date of the earliest event reported October 29, 1998, File
No. 0-9040.
- -----------
* Filed herewith.
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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
II-5
<PAGE>
(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 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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 provisions described under Item 6
above, 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.
II-6
<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
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Miami, State of Florida, on the 22nd day of May,
2000.
DRYCLEAN USA, INC.
By: /s/ Michael S. Steiner
---------------------------
Michael S. Steiner, President
and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Michael S. Steiner, Venerando J.
Indelicato and Lloyd Frank and each of them, with power of substitution, as his
attorney-in-fact, in all capacities, to sign any amendments to this registration
statement (including post-effective amendments) and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-facts or their substitutes may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 22nd day of May, 2000.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Michael S. Steiner
- ----------------------------------------
Michael S. Steiner President (Chief Executive Officer)
/s/ Venerando J. Indelicato Treasurer (Principal Financial and Accounting Officer)
- ----------------------------------------
Venerando J. Indelicato
/s/ David Blyer
- ----------------------------------------
David Blyer Director
/s/ Lloyd Frank
- ----------------------------------------
Lloyd Frank Director
/s/ Alan M. Grunspan
- ----------------------------------------
Alan M. Grunspan Director
/s/ William K. Steiner
- ----------------------------------------
William K. Steiner Director
- ----------------------------------------
Stuart Wagner Director
</TABLE>
II-7
<PAGE>
EXHIBIT INDEX
Exhibit
Number
- ------
4.1(a) Certificate of Incorporation of the registrant, as filed with the
Secretary of State of the State of Delaware on June 30, 1963.
Incorporated by reference to Exhibit 4.1(a) to the registrant's
Current Report on Form 8-K dated (date of earliest event reported)
October 29, 1998, File No. 0-9040.
4.1(b) Certificate of Amendment to the Certificate of Incorporation of
the registrant, as filed with the Secretary of State of the State
of Delaware on March 27, 1968. Incorporated by reference to
Exhibit 4.1(b) to the registrant's Current Report on Form 8-K
dated (date of earliest event reported) October 29, 1998, File No.
0-9040.
4.1(c) Certificate of Amendment to the Certificate of Incorporation of
the registrant, as filed with the Secretary of State of the State
of Delaware on November 4, 1983. Incorporated by reference to
Exhibit 4.1(c) to the registrant's Current Report on Form 8-K
dated (date of earliest event reported) October 29, 1998, File No.
0-9040.
4.1(d) Certificate of Amendment to the Certificate of Incorporation of
the registrant, as filed with the Secretary of State of the State
of Delaware on November 5, 1986. Incorporated by reference to
Exhibit 4.1(d) to the registrant's Current Report on Form 8-K
dated (date of earliest event reported) October 29, 1998, File No.
0-9040.
4.1(e) Certificate of Change of Location of Registered Office and of
Agent, as filed with the Secretary of State of the State of
Delaware on December 31, 1986. Incorporated by reference to
Exhibit 4.1(e) to the registrant's Current Report on Form 8-K
dated (date of earliest event reported) October 29, 1998, File No.
0-9040.
4.1(f) Certificate of Ownership and Merger of Design Development
Incorporated into the registrant, as filed with the Secretary of
State of the State of Delaware on June 30, 1998. Incorporated by
reference to Exhibit 4.1(f) to the registrant's Current Report on
Form 8-K dated (date of earliest event reported) October 29, 1998,
File No. 0-9040.
4.1(g) Certificate of Amendment to the Certificate of Incorporation of
the registrant, as filed with the Secretary of State of the State
of Delaware on October 30, 1998. Incorporated by reference to
Exhibit 4.1(g) to the registrant's Current Report on Form 8-K
dated (date of earliest event reported) October 29, 1998, File No.
0-9040.
4.1(h) Certificate of Amendment to the Certificate of Incorporation of
the registrant, as filed with the Secretary of State of Delaware
on November 5, 1999. Incorporated by reference to Exhibit 4.1 to
the registrant's Quarterly Report on Form 10-QSB for the quarter
ended September 30, 1999, File No. 0-9040.
4.2 By-Laws of the registrant, as amended. Incorporated by reference
to Exhibit 4.2 to the registrant's Quarterly Report on Form 10-QSB
for the quarter ended September 30, 1999, File No. 0-9040.
*5.1 Opinion and consent of Parker Chapin LLP as to the legality of the
Common Stock being offered.
<PAGE>
*23.1 Consent of BDO Seidman, LLP
*23.2 Consent of Parker Chapin LLP (contained in Exhibit 5.01).
*24.1 Powers of Attorney of officers and directors of the registrant
(included as part of the signature page hereto).
99.1 The registrant's 1991 Stock Option Plan, as amended. Incorporated
by reference to Exhibit 99.3 to the registrant's Current Report on
Form 8-K dated (date of the earliest event reported October 29,
1998, File No. 0-9040.
- -----------
* Filed herewith.
EXHIBIT 5.1
-----------
[PARKER CHAPIN LLP LETTERHEAD]
May 22, 2000
DRYCLEAN USA, Inc.
290 N.E. 68th Street
Miami, Florida 33138
Re: 1991 Stock Option Plan
----------------------
Dear Sir or Madam:
We have acted as counsel to DRYCLEAN USA, Inc. (the "Company")
in connection with its Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission relating to
the offering of up to 900,000 shares of its common stock, par value $.025 per
share (the "Common Stock"), to employees of the Company or any subsidiary of the
Company upon the exercise of options which have been, or may from time to time
be, granted by the Company under the Company's 1991 Stock Option Plan (the
"Plan"), and such additional indeterminate number of shares of Common Stock as
may be issued under the anti-dilution provisions of the Plan.
In rendering the opinions expressed below, we have examined
the Certificate of Incorporation of the Company, as amended, the By-laws of the
Company, as amended, and minutes of the corporate proceedings of the Company
relating to the Plan. In addition, we have examined and relied upon such other
matters of law, certificates and examinations of public officials as we have
deemed relevant to the rendering of this opinion. We have not examined each
option contract in respect of options granted under the Plan. We have, however,
examined the form of option contract we are advised is the form of option
contract used by it under the Plan. We have also been informed that each option
contract between the Company and option holders under the Plan is substantially
in the form of the option contract we have examined. In all of our examinations,
we have assumed the accuracy of all information furnished to us, the genuineness
of all documents, the conformity to originals of all documents submitted to us
as certified, conformed, facsimile or photostatic copies thereof, as well as the
genuineness of all signatures on all such documents.
<PAGE>
Our opinion is limited to the date hereof and we do not in any
event undertake to advise you of any facts or circumstances occurring or coming
to our attention subsequent to the date hereof.
Finally, we are counsel admitted to practice only in the State
of New York, and we express no opinions as to the applicable laws of any
jurisdiction other than those of the State of New York, the Delaware General
Corporation Law and the United States of America.
Based upon and subject to the foregoing, we are of the opinion
that the shares of the Company's Common Stock issued pursuant to the exercise of
an option granted under the Plan are, and those to be issued pursuant to the
exercise of options granted or to be granted under the Plan will be when issued
pursuant to the provisions of the Plan, legally issued, fully paid and
non-assessable.
Lloyd Frank, a member of this firm, is Secretary, a director
and a stockholder of the Company and his wife is a stockholder of the Company.
Mr. Frank also holds options to purchase shares of the Company's Common Stock.
Richard A. Rubin, also a member of this firm, is a stockholder of the Company.
We consent to the filing of a copy of this opinion as an
exhibit to the Company's Registration Statement with respect to the Plan.
Very truly yours,
/s/ PARKER CHAPIN LLP
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
DRYCLEAN USA, Inc.
Miami, Florida
We hereby consent to the incorporation by reference in this Registration
Statement of our report dated August 11, 1999, relating to the consolidated
financial statements of DRYCLEAN USA, Inc. appearing in the Company's Annual
Report on Form 10-KSB for the year ended June 30, 1999.
/s/ BDO SEIDMAN, LLP
Miami, Florida
May 19, 2000
