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As Filed with the Securities and Exchange Commission on February 20, 1996
Registration No. 33-23910
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
POST-EFFECTIVE AMENDMENT NO. 8
ON FORM S - 3 TO
FORM S - 1
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
WATER-JEL TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
243 Veterans Boulevard
Carlstadt, New Jersey 07072
(201)-507-8300
(Address and telephone number of registrant's principal executive offices)
New York 3398 13-3006788
(State or other (Standard Industrial (IRS Employer I.D.
jurisdiction of Classification Code) Number)
incorporation)
Peter D. Cohen, President
Water-Jel Technologies, Inc.
243 Veterans Boulevard
Carlstadt, New Jersey 07072
(201) 507-8300
(Name, address and telephone number of agent for service)
Copies of all Oscar D. Folger, Esq.
communications to: 521 Fifth Avenue
New York, New York 10175
(212) 697-6464
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 4l5 under the Securities Act of
1933, check the following box. /X/
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PROSPECTUS
SUBJECT TO COMPLETION, DATED FEBRUARY 20, 1996
WATER-JEL TECHNOLOGIES, INC.
1,560,856 Shares of Common Stock and 1,560,856
Redeemable Class B Warrants included in
1,560,856 Redeemable Class A Warrants and
1,766,619 Shares of Common Stock included in
1,766,619 Redeemable Class B Warrants
On October 31, 1988, Water-Jel Technologies, Inc. (which was then named
Trilling Medical Technologies, Inc.) (the "Company") completed a second public
offering of 1,060 Units. Each unit ("Unit") consisted of 13,333 shares of common
stock, $.01 par value, ("Common Stock") and 13,333 redeemable Class A Common
Stock Purchase Warrants ("Class A Warrants"), which were transferable separately
immediately upon issuance. On November 25, 1994, the Company effected a
one-for-eight reverse stock split of all of its securities. Following the
reverse stock split, each Class A Warrant entitles the holder to purchase one
share of Common Stock and to receive one redeemable Class B Common Stock
Purchase Warrant ("Class B Warrants") at an exercise price of $3.00 on or prior
to October 30, 1996. Each Class B Warrant entitles the holder to purchase one
share of Common Stock at $6.00 per share on or prior to October 30, 1996. This
prospectus is being distributed in connection with the exercise of the Warrants
and the issuance of their underlying securities. The Warrants are subject to
redemption at $.40 per Warrant upon 30 days written notice provided the closing
bid price of the Common Stock in the over-the-counter market (or the last sale
price listed on a national securities exchange) for 20 consecutive business days
ending within 15 days of the notice of redemption averages in excess of (i)
$4.56 per share for redemption of the Class A Warrants or (ii) $9.00 per share
for redemption of the Class B Warrants. To date, 205,764 Class A Warrants have
been exercised. The Company's Common Stock and Class A Warrants are traded on
NASDAQ under the symbols BURN and BURNZ, respectively. The closing bid
quotations of the Company's Common Stock and Class A Warrants on February 6,
1996 as quoted by NASDAQ, were $2.187 and $0.656, respectively. The Class B
Warrants were traded on NASDAQ under the symbol BURNW until March 23, 1995, when
they were delisted because of a lack of trading volume. According to NASDAQ, the
Class B Warrants last traded on November 3, 1994 when the last closing bid
quotation was $0.047.
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THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS"
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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.
The date of this Prospectus is February , 1996.
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AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934 and in accordance therewith files reports and other
information with the Securities and Exchange Commission (the "Commission"). Such
reports and other information may be inspected at the public reference
facilities of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following Regional Offices of the Commission:
Suite 1400, 500 West Madison Street, Chicago, Illinois 60661-2511; Seven World
Trade Center - 13th Floor, New York, New York 10048; and Suite 500 East, 5757
Wilshire Boulevard, Los Angeles, California 90036-3648. Copies of such material
may be obtained from the Public Reference Section of the Commission, Washington,
D.C. 20549, at prescribed rates.
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The Company will furnish its security holders with annual reports
containing audited financial statements at the end of each fiscal year. In
addition, the Company may, from time to time, issue unaudited interim reports
and financial statements.
THE FOLLOWING LEGEND WILL APPEAR IN RED INK ON THE FRONT PAGE OF
THE PROSPECTUS IN THE EVENT THAT THE PROSPECTUS IS CIRCULATED PRIOR
TO BEING DECLARED EFFECTIVE BY THE COMMISSION:
"The information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell nor the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State."
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THE COMPANY
Water-Jel Technologies, Inc., (the "Company") is a New York corporation
established in 1979. Since its inception, the Company has focused its efforts on
the development, manufacture and marketing of products using its Water-Jel gel
as emergency first aid for burn injuries. The Company's Water-Jel First Aid
product line for burns includes fire blankets, burn dressings, Burn Jel, UnBurn,
and Cool-Jel. In addition, the Company has expanded its manufacturing operations
to include a line of generic creams and ointments and through an arrangement
with Pfizer Inc. began marketing Visine Singles to the industrial marketplace.
On November 25, 1994, the Company effected a one-for-eight reverse
stock split of all of the Company's securities. Unless otherwise indicated, all
information in this Prospectus gives retroactive effect to this reverse stock
split.
The Company was incorporated under the name Trilling Resources, Ltd. in
September 1979. It changed its name to Trilling Medical Technologies, Inc. in
September 1987 and to Water-Jel Technologies, Inc. in July 1991. The executive
offices of the Company are located at 243 Veterans Boulevard, Carlstadt, New
Jersey 07072. The Company's telephone number is (201) 507-8300.
RISK FACTORS
THE SECURITIES OFFERED HEREBY ARE HIGHLY SPECULATIVE IN NATURE AND
INVOLVE A HIGH DEGREE OF RISK. THE WARRANTS SHOULD BE EXERCISED ONLY BY PERSONS
WHO CAN AFFORD TO LOSE THEIR ENTIRE INVESTMENT. THEREFORE, EACH PROSPECTIVE
INVESTOR SHOULD, PRIOR TO EXERCISE, CONSIDER VERY CAREFULLY THE FOLLOWING RISK
FACTORS, AS WELL AS ALL OF THE OTHER INFORMATION SET FORTH ELSEWHERE IN THIS
PROSPECTUS.
1. Government Regulation
The Company's products and manufacturing practices are subject to
regulation by the Food and Drug Administration ("FDA") as well as by similar
foreign authorities. The Water-Jel Fire Blanket and Burn Dressing are medical
devices subject to regulation by the FDA. The Company's generic creams and
ointment, Burn Jel and UnBurn line are classified as over the counter drugs. FDA
requirements include adherence to good manufacturing practices, proper
labelling, and either premarket notification under section 510(k) of the Medical
Device Amendments to the Federal Food, Drug and Cosmetics Act or premarket
approval (depending on the category of product) prior to commercial marketing in
the United States. The Company is also subject to periodic inspections by the
FDA relating to good manufacturing practices. The FDA has the authority to
require a suspension of manufacturing operations if it finds serious
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deficiencies. Additional regulation may, in the future, be imposed by Federal,
state or local authorities, particularly the FDA. Any new products will also be
subject to review of various regulatory authorities in virtually every foreign
country in which such products are offered for sale. To the extent that any new
products which the Company may develop are deemed to be new pharmaceutical or
new medical devices, such products will require FDA and other regulatory
clearance and/or approvals prior to marketing. Such governmental regulation may
prevent or substantially delay the marketing of any products developed by the
Company, cause the Company to undertake costly procedures, and furnish a
competitive advantage to the more substantially capitalized companies which
compete with the Company. There can be no assurance that the Company will have
the requisite financial resources to complete the regulatory approval process
with respect to any new products which it may develop.
2. Market Acceptance for Company's Products
The Company believes that its ability to market its products requires
educating potential users of its products as to their benefits and applications.
No assurance can be given that the Company will be able to successfully increase
the market for its products.
3. Need for Additional Funds
It is likely that the Company's education and marketing efforts,
particularly those directed at the personal use market, will require substantial
funds.
4. Competition
The market in which the Company currently operates is characterized by
competition and rapid technological change. Other firms, including Spenco
Medical Corporation, C.R. Bard, Inc. and Johnson & Johnson Products, Inc.
manufacture and market fire blankets, burn dressings and related fire safety
products and have been in business for a longer period of time, are better
established, have financial resources substantially greater, and have more
extensive facilities than those which now, or in the foreseeable future, may be
available to the Company. While some segments of the market are dominated by
large manufacturers, other segments of the market are characterized by intense
competition among independent product manufacturers.
In fiscal 1995 Nortrade International, Inc. ("Nortrade") introduced a
product which attempts to duplicate the Company's First Aid Product Line for
Burns. The Company believes that it will be able to compete with Nortrade based
upon the Company's established customer base, superior customer service and its
ability to offer a more diverse range of products.
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5. Patents
The design of the Company's Fire Blanket products was protected by
United States and foreign patents which were assigned to the Company in 1979 and
1985. The United States patent which protected a substantial portion of the
Company's technology expired in 1992. New competitors may now enter the
Company's markets. The Company may be materially and adversely affected if the
Company should fail to establish a secure market base before the entrance of
significant new competitors now that the original United States patent has
expired. See "Competition."
In January 1995, the Company was granted a patent for a synthetic
fabric containing a therapeutic, non-toxic, water-soluble and bio-degradable gel
used in the Company's Burn Dressing product line. However, no assurance can be
given that this patent will prove enforceable or prevent others from marketing
products similar to, or which perform comparable functions as, the Company's
products.
The Company has obtained United States and foreign registrations for
several trademarks for use on the Company's products. These marks and logos are
used on the packaging of the Company's products.
6. Uncertainty of International Sales
For the fiscal year ended August 31, 1995, the Company had approximate
revenues of $912,000 from international sales, which represented approximately
18% of total sales during this period. International sales represented 15% and
21% of total sales, respectively, for the fiscal years ended August 31, 1994 and
1993. Although the Company intends to continue to pursue international sales,
there can be no assurance that sales at present levels will be maintained, or
will not fluctuate significantly as has occurred in recent years.
7. Product Liability
To date, there have been no material claims or threatened claims
against the Company by users of its products based on a failure to perform as
specified. In the event that any claims for substantial amounts were to be
successfully asserted against the Company, they could have a materially adverse
effect on the Company's financial condition and its ability to distribute its
products. The Company maintains $11,000,000 of general product liability
insurance. There is no assurance that this amount will be sufficient to cover
potential claims or that the present amount of insurance can be maintained at
the present level of cost.
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8. No Dividends
The Company has not paid any cash dividends upon its Common Stock since
its inception and, by reason of its present financial status and its
contemplated financial requirements, does not anticipate paying any cash
dividends in the foreseeable future. It is anticipated that earnings, if any,
which may be generated from operations will be used to finance the operations of
the Company.
9. Potential Rule 144 and Other Sales
Of the Company's 3,499,180 shares outstanding as of February 6, 1996,
approximately 533,000 shares may be deemed "restricted securities" as that term
is defined under the Securities Act of 1933, as amended (the "Act"), and in the
future may be sold in compliance with Rule 144 under the Act or pursuant to a
registration statement filed under the Act. Rule 144 provides, in essence, that
a person holding restricted securities for a period of two years may sell every
three months in brokerage transactions and/or market maker transactions an
amount equal to the greater of one percent (1%) of either (a) the Company's
issued and outstanding Common Stock or (b) the average weekly trading volume of
the Common Stock during the four calendar weeks prior to such sale. Rule 144
also permits, under certain circumstances, the sale of shares without any
quantity limitation by a person who is not an affiliate of the Company and who
has satisfied a three-year holding period. In addition, the Company has
registered 388,661 shares of Common Stock held by twelve persons. Investors
should be aware that sales of the Company's Common Stock, under registration
statements or Rule 144, may have a depressive effect on the price of the
Company's Common Stock in any market which may develop for such securities.
10. Arbitrary Determination of Warrant Exercise Prices
The exercise prices of the Warrants were arbitrarily established by
negotiation between the underwriter of the Company's second public offering and
the Company, and do not have any relationship to prior operations, earnings or
net worth of the Company or to any other generally recognized criteria of value
and should not be regarded as an indication of any future market price of the
Common Stock of the Company.
11. Non-Registration in Certain Jurisdictions of Shares Underlying
the Warrants; Need for Current Prospectus
Although the Units in which the Warrants were originally issued were
not knowingly sold to purchasers in jurisdictions in which the Units were not
registered or otherwise qualified for sale, purchasers may have purchased Units
or Warrants in the aftermarket who reside in or may move to jurisdictions in
which the shares underlying the Warrants are not so registered or qualified
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during the period when the Warrants are exercisable. In this event, the Company
will be unable to issue shares to those persons desiring to exercise their
Warrants unless and until the shares can be qualified for sale in jurisdictions
in which such purchasers reside, or an exemption to such qualification exists in
such jurisdiction. At the present time the Company has not ascertained the
status of the Company's ability to issue stock upon exercise of the Warrants in
most states. The Company intends to address this issue on a case by case basis
if and when Warrantholders seek to exercise their Warrants. In addition,
Warrantholders will not be able to exercise the Warrants to purchase additional
shares unless at the time of the exercise, the Company has a current prospectus
covering shares of Common Stock issuable upon exercise of such Warrants. The
Company will use its best efforts to have all such shares so registered or
qualified on or before the exercise date and to maintain a current prospectus
relating thereto until the expiration of the Warrants. While it is the Company's
intention to do so, there is no assurance that it will be able to do so.
12. Proceeds Not Allocated to Specific Uses
Any proceeds of this offering have been allocated to working capital.
While the Company anticipates that a significant portion of any proceeds
received will be used for manufacturing, administrative, marketing or research
and development expenses, the acquisition of inventory, or the repurchase of
certain of the Company's outstanding securities, it has made no specific
allocation for these purposes and may use these funds for other general
corporate purposes. See "Use of Proceeds."
USE OF PROCEEDS
The net proceeds to the Company from the exercise of both Class A and
Class B Warrants offered hereby will be approximately $14,621,000, net of
estimated expenses of $50,000 and the underwriter's warrant exercise fee of
approximately $611,000. Any proceeds received from the exercise of the Warrants
would be added to working capital. The Company has not made any specific
allocations as to the use of any such proceeds. The proceeds could be used for
manufacturing, administrative, marketing or research and development expenses,
the acquisition of inventory, or the repurchase of certain of the Company's
outstanding securities. In the opinion of management, the Company has sufficient
capital, together with anticipated revenues from sales of its products, to
continue operations for at least the next twelve months.
Prior to expenditure, the net proceeds will be invested in short-term
interest bearing securities or money market funds. Any income from investments,
will be added to working capital.
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MATERIAL DEVELOPMENTS
No reportable material developments have occurred since the Company's
filing of its quarterly report on Form 10-QSB for the three months ended
November 30, 1995.
PLAN OF DISTRIBUTION
Upon the exercise of the Class A Warrants, the Company will pay D. H.
Blair Investment Banking Corp., the successor-in-interest to the underwriter of
the Company's second public offering in 1988 (the "Underwriter") a fee of 4% of
the aggregate exercise price of the Class A Warrants, of which 1% shall be
reallowed to the dealer who solicited the exercise (which may also be the
Underwriter) if (i) the market price of the Company's Common Stock on the date
the Class A Warrant is exercised is greater than the then exercise price of the
Class A Warrants; (ii) the exercise of the Class A Warrant was solicited by a
member of the NASD; (iii) the Class A Warrant is not held in a discretionary
account; (iv) disclosure of compensation arrangements was made both at the time
of the offering and at the time of exercise of the Class A Warrants; and (v) the
solicitation of exercise of the Class A Warrant was not in violation of Rule
10b-6 promulgated under the Securities Exchange Act of 1934. No fee is payable
to the Underwriter with respect to the exercise of Class B Warrants.
Common Stock issuable on exercise of the Warrants is distributed when
and as such Warrants are exercised by Warrant holders. The Company may solicit
the exercise of the Warrants at any time, and may redeem the Warrants if the
market price of the Company's Common Stock rises to the necessary level. The
Company may also reduce the exercise price of the Redeemable Warrants in order
to encourage their exercise. The exercise prices and other terms of the Warrants
have been determined by negotiation between the Company and the Underwriter.
LEGAL MATTERS
Certain legal matters in connection with this offering are being passed
upon for the Company by Oscar D. Folger, Esq., New York, New York. Mr. Folger
owns beneficially 12,500 shares of the Company's Common Stock. James W. Lucas,
who is of counsel to Mr. Folger, owns 1,666 shares of Common Stock and 1,666
Class A Warrants. Messrs. Folger and Lucas also each hold options to acquire
20,000 and 15,000 shares, respectively, of the Company's Common Stock.
EXPERTS
The financial statements of Water-Jel Technologies, Inc. for the years
ended August 31, 1995 and 1994, incorporated by reference from the Company's
annual report on Form 10-KSB for the fiscal year ended August 31, 1995, have
been examined by Holtz Rubenstein & Co., LLP, independent certified public
accountants, as stated in their report, and are included in reliance upon the
report of such firm and upon their authority as experts in accounting and
auditing.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, which have been filed with the Commission by
the Company are incorporated herein by reference and made a part hereof. The
Commission file number for all documents which are incorporated by reference is
0-13049.
(1) Annual Report on Form 10-KSB for the fiscal year ended
August 31, 1995, as amended December 28, 1995.
(2) Quarterly Report on Form 10-QSB for the three months
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ended November 30, 1995.
(1) The section entitled "Description of Securities" in
the Company's registration statement on Form S-1 (Registration
No. 33-23910), declared effective on October 31, 1988.
In addition, all documents filed by the Company pursuant to Sections 13
(a), 13 (c), 14 and 15 (d) of the Exchange Act, prior to the termination of the
offering of the securities covered by this Prospectus or the filing of a
post-effective amendment which indicates that all securities have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated in this Prospectus and made a part hereof by reference from the
date of filing each such document. Any statement contained in an earlier
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in 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 Prospectus.
INDEMNIFICATION
The Certificate of Incorporation of the Company provides that all
directors, officers, employees and agents of the Company shall be entitled to be
indemnified by the Company to the fullest extent permitted by law.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, or otherwise, the
Company 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.
ADDITIONAL INFORMATION
This Prospectus contains certain information concerning the Company and
its securities, but does not contain all the information set forth in the
Registration Statement and the Exhibits thereto filed with the Commission under
the Securities Act of 1933, as amended, to which reference is made. Any summary
from the Exhibits contained in this Prospectus is necessarily incomplete and
must not be considered as a full statement of the provisions of such
instruments.
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WATER-JEL TECHNOLOGIES, INC.
1,560,856 Redeemable Class B Warrants
and 3,327,475 Shares of Common Stock
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PROSPECTUS
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February _, 1996
No dealer, salesman or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus, and if given or made, such information or representations must not
be relied upon as having been authorized by the Company. This Prospectus does
not constitute an offer to sell or a solicitation of any offer to buy any
securities in any jurisdiction in which such an offer or solicitation would be
unlawful. Neither the delivery of this Prospectus nor any sale made hereunder
shall under any circumstances create any implication that there has been no
change in the affairs of the Company since the date hereof.
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PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of the
securities being registered under this post-effective amendment are estimated as
follows:
Blue sky qualification fees and expenses $ 10,000
Legal Fees and expenses ................ 20,000
Accountant's fees and expenses ......... 15,000
Miscellaneous .......................... 5,000
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Total .................................. $ 50,000
Item 15. Indemnification of Directors and Officers.
(a) Sections 721 through 726 of the New York Business Corporation Law
(the "NYBCL") provide, in general, that (i) in the case of a derivative action,
any person made a party to any action by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Registrant, may be
indemnified by the Registrant against the reasonable expenses, including
attorney's fees, actually and necessarily incurred by him in connection with the
defense of such action or an appeal therein except in relation to matters as to
which such director or officer is adjudged to have breached his duty to the
Registrant under Section 717 of the NYBCL, and (ii) in the case of a
non-derivative action, any person made or threatened to be made a party to any
action, whether civil or criminal, by reason or the fact that he, his testator
or intestate, is or was a director or officer of the Registrant or served
another corporation or any partnership, joint venture, trust, employee benefit
plan or other enterprise in any capacity at the request of the Registrant may be
indemnified by the Registrant against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorney's fees, actually and
necessarily incurred by him as a result of such action or an appeal therein if
such officer or director acted in good faith, for a purpose which he reasonably
believed to be in, or in the case of service for such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
not opposed to, the best interests of the Registrant, and, in addition, in
criminal actions or proceedings had no reasonable cause to believe that his
conduct was unlawful.
(b) Registrant's certificate of incorporation has been amended to
permit certain limitations on the grounds upon which a director may be
personally liable to Registrant or any shareholder for damages for breach of
fiduciary duty as a director to the full extent permitted by the New York
Business Corporation Law.
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(c) Registrant's by-laws, as amended, permit the indemnification of
directors and officers in connection with both derivative and non-derivative
actions, to the full extent permitted by the New York Business Corporation Law.
Article 12 of the by-laws, as amended, reads:
A. The Company shall, to the fullest extent permitted by applicable law
as the same exists or may hereafter be in effect, indemnify any person who is or
was or has agreed to become director or officers of the Company and who is or
was made or threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, including an action by or in the right of the
Company to procure a judgment in its favor and an action by or in the right of
any other corporation of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
which such person is serving, has served or has agreed to serve in any capacity
at the request of the Company, by reason of the fact that he or she is or was or
has agreed to become a director or officer of the Company, or is or was serving
or has agreed to serve such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity against
judgments, fines, amounts paid or to be paid in settlement, taxes or penalties
and costs, charges and expenses, including attorney's fees, incurred in
connection with such action or proceeding or any appeal therein, provided,
however, that no indemnification shall be provided to any such person if a
judgement or other final adjudication adverse to the director or officer
establishes that (i) his or her acts were committed in bad faith or were the
result of active and deliberate dishonesty and in either case, were material to
the cause of action so adjudicated, or (ii) he or she personally gained in fact
a financial profit or other advantage to which he or she was not legally
entitled. The benefits of this Paragraph A shall extend to the heirs and legal
representatives of any person entitled to indemnification under this Paragraph.
B. The Company may, to the extent authorized from time to time by the
Board of Directors, or by a committee comprised of members of the Board of
members of management as the board may designate for such purpose, provide
indemnification to employees or agents of the Company who are not officers or
directors of the Company with such scope and effect as determined by the Board,
or such committee.
C. The Company may indemnify any person to whom the Company is
permitted by applicable law to provide indemnification or the advancement of
expenses, whether pursuant to rights granted pursuant to, or provided by, the
New York Business Corporation Law or other rights created by (i) a resolution of
shareholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-laws
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authorize the creation of other rights in any such manner. The right to be
indemnified and to the reimbursement or advancement of expenses incurred in
defending a proceeding in advance of its final disposition authorized by this
Paragraph C shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-laws, agreement, vote of shareholders or disinterested
directors or otherwise.
D. the right to indemnification conferred by Paragraph A shall, and any
indemnification extended under Paragraph B or Paragraph C may, be retroactive to
events occurring prior to the adoption of this Article XII, to the fullest
extent permitted by applicable law.
E. This Article XII may be amended, modified or repealed either by
action of the Board of Directors of the Company or by the vote of the
shareholders.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, or otherwise,
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 Registrant of expenses paid
or incurred by a director, officer or controlling person of 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, Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to the 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.
Item 16. Exhibits.
(4) (a) Form of Common Stock(1)
(4) (b) Form of Class A Warrant(2)
(4) (c) Form of Warrant Agreement(2), as amended*
(5) Opinion of Oscar D. Folger*
(23) (a) Consent of Holtz Rubenstein & Co.*
(23) (b) Consent of Oscar D. Folger (included in Exhibit 5)
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* Filed herewith
(1) Incorporated by reference from the Company's Registration Statement
on Form S-18, File No. 2-90512-NY, initially filed with the
Commission on April 12, 1984.
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<PAGE>
(2) Incorporated by reference from the Company's Registration Statement
on Form S-1, File No. 33-23910, initially filed with the Commission
on August 23, 1988.
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any fact 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. Notwithstanding the foregoing, any increase or decrease in the volume
of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the high and low and of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective 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 registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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<PAGE>
(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 Registrant's annual report pursuant to Section 13(a)
or 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, WATER-JEL TECHNOLOGIES, INC. has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Carlstadt, New Jersey, on February 12, 1996.
WATER-JEL TECHNOLOGIES, INC.
By /s/ Peter D. Cohen
Peter D. Cohen, President, Chief
Executive Officer, Treasurer and
Director (Chief Operating Officer
and Chief Financial and Accounting
Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints Peter D. Cohen, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any or all
pre-effective and post-effective amendments to the Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitutes, may lawfully 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 and on the dates indicated.
Signature Title Date
/s/ Peter D. Cohen President, Chief Executive 2/12/96
(Peter D. Cohen) Officer, Treasurer and
Director and Chief Financial
and Accounting Officer
/s/ Yitz Grossman Director and Secretary 2/12/96
(Yitz Grossman)
/s/ Werner Haase Director 2/12/96
(Werner Haase)
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<PAGE>
Exhibit 4(c)
AMENDMENT TO WARRANT AGREEMENT
Amendment dated as of the 15th day of February, 1996 (the "Amendment") to
the Warrant Agreement dated as of October 31, 1988 (the "Agreement") among D. H.
Blair Investment Banking Corp. (as successor-in-interest to D. H. Blair & Co.,
Inc.) ("Blair"), Water-Jel Technologies, Inc. (formerly, Trilling Medical
Technologies, Inc.) (the "Company") and American Stock Transfer & Trust Company.
WHEREAS, the Company believes it is in the best interests of the Company
and its stockholders that the Agreement be amended to modify certain provisions
relating to the solicitation of exercises of the Company's Class A and Class B
Warrants.
NOW, THEREFORE, in consideration of the foregoing and the issuance by the
Company to Blair and its designees of option agreements of even date herewith
(collectively, the "1996 Option"), it is agreed as follows:
1. Section 4(b) of the Agreement shall be deleted in its entirety and
replaced with the following:
(b) If, at the Exercise Date in respect of the exercise of any Class A
Warrant, (i) the market price of the Company's Common Stock is greater than the
then Purchase Price of the Class A Warrant; (ii) the exercise of the Class A
Warrant was solicited by a member of the National Association of Securities
Dealers, Inc. (the "NASD"); (iii) the Class A Warrant was not held in a
discretionary account; (iv) disclosure of the compensation arrangements was made
both at the time of the original offering and at the time of exercise; (v) the
solicitation of the exercise of the Class A Warrant was not in violation of Rule
10b-6 (as such rule or any successor rule may be in effect as of the time of
exercise) promulgated under the Securities Exchange Act of 1934, the Warrant
Agent, simultaneously with the distribution of the proceeds to the Company
received upon exercise of the Class A Warrants so exercised shall, on behalf of
the Company, pay from the proceeds received upon exercise of the Class A
Warrants a fee of 4% of the Purchase Price to Blair, of which 1% shall be
reallowed to the dealer who solicited the exercise. Within five days after
exercise, the Warrant Agent shall send Blair a copy of the reverse side of each
Class A Warrant exercised. Blair shall reimburse the Warrant Agent, upon
request, for its reasonable expenses relating to compliance with this Subsection
4(b). In addition, Blair and the Company may at any time during business hours,
examine the records of the Warrant Agent, including its ledger of original
Warrant Certificates returned to the Warrant Agent upon exercise of Class A
Warrants. The provisions of this Section 4 may not be modified, amended or
deleted without the prior written consent of Blair.
2. All references in the Agreement to the Unit Purchase Option shall
hereinafter be deemed to refer to the 1996 Option.
3. Except as amended herein, the Agreement shall continue in full force and
effect and shall be enforceable in accordance with its terms.
<PAGE>
IN WITNESS WHEREOF, the parties have executed the Amendment as of the date
first above written.
WATER-JEL TECHNOLOGIES, INC.
By: /s/ Peter Cohen
Name: Peter Cohen
Title: President
D. H. BLAIR INVESTMENT BANKING CORP.
By: /s/ Martin A. Bell
Name: Martin A. Bell
Title: Vice Chairman and Executive Vice President
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Michael Karfunkel
Name: Michael Karfunkel
Title: President
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<PAGE>
Exhibit 5
February 13, 1996
Water-Jel Technologies, Inc.
243 Veterans Boulevard
Carlstadt, New Jersey 07072
Gentlemen:
We have acted as counsel to Water-Jel Technologies, Inc., a New York
corporation (the "Company") in connection with the registration by the Company
of 1,560,856 Redeemable Class B Warrants and 3,327,475 shares of Common Stock,
$.08 par value (the "Securities") which are the subject of a Registration
Statement on Form S-3 under the Securities Act of 1933, as amended (the "Act").
As counsel to the Company we have examined and relied upon the original
or copies, certified of otherwise identified to our satisfaction, of such
documents, corporate records and other instruments as we have deemed necessary
in order to render the following opinion.
Based upon the foregoing, we are of the opinion that the Securities to
be issued by the Company are duly authorized and, when issued and paid for in
accordance with their terms as described in the Registration Statement, will be
validly issued, fully paid and nonassessable.
We are aware that we are referred to under the caption "Legal Matters"
in the Prospectus included in the Registration Statement and we hereby consent
to such reference to us and to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving such consent, however, we do not hereby imply
or admit that we are within the category of persons whose consent is required
under Section 7 of the Act or under the General Rules and Regulations of the
Securities and Exchange Commission adopted thereunder.
Very truly yours,
/s/ Oscar D. Folger
Oscar D. Folger
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<PAGE>
Exhibit 23(a)
HOLTZ RUBENSTEIN & CO., LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in Registration Statement
No. 33-23910 on Form S-3 of our report dated December 1, 1995 appearing in
Water-Jel Technologies, Inc.'s annual report on Form 10-KSB for the fiscal year
ended August 31, 1995.
/s/ Holtz Rubenstein & Co., LLP
HOLTZ RUBENSTEIN & CO., LLP
Melville, New York
February 20, 1996
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