As filed with the Securities and Exchange Commission on September 5, 1997
Registration No. _______________
FORM S-8
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NMC CORP.
(Exact name of registrant as specified in its charter)
Delaware 22-1558317
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
477 Madison Avenue, Suite 701, New York, New York 10022
(Address of principal executive offices) (Zip Code)
Consulting Agreement between NMC Corp. and Jennifer Brandt
(Full title of the plan)
Not applicable
(Name and address of agent for service)
(212) 207-4560
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
=========================================================================================================
Amount to be Proposed Proposed
Title of Each Class of Securities Registered Offering Price Aggregate Amount of
to be Registered Per Share(1) Offering Price Registration Fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of Common Stock, $.06-2/3 par
value
("Common Stock")..................... 5,000 2.5625 12,812.50 3.88
- ---------------------------------------------------------------------------------------------------------
Total Registration Fee................. 3.88
=========================================================================================================
</TABLE>
(1) Pursuant to Rule 457, the offering price of such shares is estimated solely
for the purpose of determining the registration fee.
<PAGE>
PART 2
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
registration statement.
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
July 31, 1996, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended;
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since July 31, 1996.
(c) The description of Registrant's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on
November 30, 1966 under Section 12 of the Securities Exchange Act
of 1934, including any amendment or report filed for the purpose
of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 after the date of this
registration statement and prior to the filing of a post-effective amendment to
this registration statement which indicates that all securities offered
hereunder have been sold, or which deregisters all securities then remaining
unsold under this registration statement, shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof from the date
of filing of such documents.
Any statement contained in a document or incorporated or deemed to be
incorporated 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 subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement. All
information in this Registration Statement is qualified in its entirety by the
information and financial statements (including the notes thereto) appearing in
the documents incorporated herein by reference, except to the extent set forth
in the immediately preceding statement.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable; the class of securities to be offered is registered
under Section 12 of the Securities Exchange Act of 1934.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
-2-
<PAGE>
Item 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 145 of the Delaware General Corporation Law ("DGCL") permits, in
general, a Delaware corporation to indemnify any person made, or threatened to
be made, a party to an action or proceeding by reason of the fact that he or she
was a director or officer of the corporation, or served another entity in any
capacity at the request of the corporation, against any judgment, fines, amounts
paid in settlement and expenses, including attorney's fees actually and
reasonably incurred as a result of such action or proceeding, or any appeal
therein, if such person acted in good faith, for a purpose he or she reasonably
believed to be in, or, in the case of service for another entity, not opposed
to, the best interests of the corporation and, in criminal actions or
proceedings, in addition had no reasonable cause to believe that his or her
conduct was unlawful. Section 145(e) of the DGCL permits the corporation to pay
in advance of a final disposition of such action or proceeding the expenses
incurred in defending such action or proceeding upon receipt of an undertaking
by or on behalf of the director or officer to repay such amount as, and to the
extent, required by statute. Section 145(f) of the DGCL provides that the
indemnification and advancement of expense provisions contained in the DGCL
shall not be deemed exclusive of any rights to which a director or officer
seeking indemnification or advancement of expenses may be entitled.
The Company's Certificate of Incorporation provides, in general, that
the Company shall indemnify, to the fullest extent permitted by Section 145 of
the DGCL, any and all persons whom it shall have power to indemnify under said
section from and against any and all of the expenses, liabilities or other
matters referred to in, or covered by, said section. The Certificate of
Incorporation also provides that the indemnification provided for therein shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any By-Law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to actions taken in his or her official capacity
and as to acts in another capacity while holding such office.
In accordance with that provision of the Certificate of Incorporation,
the Company shall indemnify any officer or director (including officers and
directors serving another corporation, partnership, joint venture, trust, or
other enterprise in any capacity at the Company's request) made, or threatened
to be made, a party to an action or proceeding (whether civil, criminal,
administrative or investigative) by reason of the fact that he or she was
serving in any of those capacities against judgments, fines, amounts paid in
settlement and reasonable expenses (including attorney's fees) incurred as a
result of such action or proceeding. Indemnification would not be available if a
judgment or other final adjudication adverse to such director or officer
establishes that (i) his or her acts were committed in bad faith or were the
result of active and deliberate dishonesty or (ii) he or she personally gained
in fact a financial profit or other advantage to which he or she was not legally
entitled.
There is no litigation pending, and neither the registrant nor any of
its directors know of any threatened litigation, which might result in a claim
for indemnification by any director or officer.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
-3-
<PAGE>
Item 8. EXHIBITS.
Number Description of Exhibit
4.1 -- Consulting Agreement between the Company and Jennifer Brandt.
5.1 -- Opinion of Lane & Mittendorf LLP, counsel to the Company.
23.1 -- Consent of Wiener, Penta & Goodman, P.C.
Item 9. UNDERTAKINGS.
1. The undersigned, Company, hereby undertakes:
(a) To file, during any period in which the Company offers or
sells securities, a post-effective amendment(s) to this registration statement:
(1) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(2) To reflect in the prospectus any facts or events
which, individually or together represent a
fundamental change in the information in the
registration statement; and
(3) To include any additional or changed 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(a)(1) and 1(a)(2) do not
apply if 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 section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(b) 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; and
(c) 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.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement
-4-
<PAGE>
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. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission (the "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 Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
-5-
<PAGE>
SIGNATURES
The Registrant. 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 New York, State of New York, on September 3,
1997.
NMC CORP.
By: /s/ Marvin E. Greenfield
Marvin E. Greenfield, President, Chief Executive
Officer, Treasurer, Chief Financial Officer and
Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Title Date
/s/ Marvin E. Greenfield President, Chief Executive September 3, 1997
Marvin E. Greenfield Officer, Treasurer, Chief
Financial Officer and
Director
Arnold Poliskin Director September 3, 1997
/s/Paul C.R. Woolford Director September 3, 1997
Paul C.R. Woolford
EXHIBIT 4.1
CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of June , 1997 between NMC Corp., a
Delaware corporation (the "Company") having an office at 477 Madison Avenue, New
York, New York 10022, and Jennifer Brandt, having an address at 11M Farm House
Lane, Morristown, New Jersey 07960 ( the "Consultant").
W I T N E S S E T H:
WHEREAS, the Company wishes to retain Consultant to provide the Company
with certain consulting services and Consultant is willing to provide such
consulting services, on the terms and conditions set forth herein,
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and agreements hereinafter contained, the parties hereby agree
as follows:
Section 1. Retention of Consultant. The Company hereby retains and
engages Consultant, and Consultant hereby accepts such engagement, in each case
subject to the terms and conditions of this Agreement.
Section 2. Services.
(a) On the terms and subject to the conditions herein contained,
the Company hereby engages Consultant as a consultant, and Consultant hereby
accepts such engagement. Consultant's duties shall be to consult with the Board
of Directors and management of the Company, from time to time, as requested by
the Company with regard to operations, strategic planning and business
development including marketing of products and targeting of acquisitions for
the Company and such other aspects of the business of the Company as Consultant
and the Company may agree from time to time.
(b) In connection with any proposal made by Consultant pursuant
to this Agreement, the Company and the Consultant acknowledge that the Company
shall not be obligated to accept such proposal or further obligate itself
hereunder.
Section 3. Compensation.
(a) The Company shall pay to Consultant $10,000 as compensation
for the services specified in Section 2 hereof. However, in lieu of such cash
payment and in consideration of services heretofore rendered, and to be rendered
by Consultant, pursuant to this Agreement, and for other good and valuable
consideration the receipt and sufficiency of
<PAGE>
which is hereby acknowledged, the Company at the Company's option, may issue to
Consultant 5,000 shares (the "Shares") of the Company's common stock, par value
$0.01 per share (the "Common Stock").
Section 4. Non-Competition. The Consultant acknowledges that in the
course of its engagement it will become familiar with trade secrets and other
confidential information (collectively, "Confidential Information") concerning
the Company and that its services will be special, unique and extraordinary to
the Company. Subject to the limitations set forth herein, The Consultant agrees
that during the Term and for a period of one year thereafter it shall not
directly or indirectly own, manage, control, participate in, consult with,
render services for, or in any manner engage in any business competing with the
business of the Company as such business exists within any geographical area in
which the Company conducts its business. In addition, the Consultant shall not
solicit, interfere with or conduct business with any vendors, customers or
employees of the Company during the term of this Agreement or for a period of
one year after the termination hereof. In the event the Company breaches any of
its duties or obligations under this Agreement, the Company agrees that the
Consultant shall not be bound by the provisions of this Agreement, except for
the provisions of the immediately following sentence. The Consultant agrees that
it shall not disclose to any third party any Confidential Information and shall
not use any Confidential Information for any purpose other than the performance
of its duties under this Agreement.
Section 5. Term. This Agreement shall be for a term of one (1) year
commencing ---- on the date hereof.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Consultant and its directors, officers and affiliates against any and all
losses, claims, damages, obligations, penalties, judgments, awards, liabilities,
costs, expenses and disbursements (and all actions, suits, proceedings and
investigations in respect thereof and any and all legal or other costs, expenses
and disbursements in giving testimony or furnishing documents in response to a
subpoena or otherwise), including, without limitation, the costs, expenses, and
disbursements, as and when incurred, of investigating, preparing or defending
any such action, proceeding or investigation (whether or not in connection with
litigation to which the Consultant is a party), directly or indirectly, caused
by, relating to, based upon, arising out of or in connection with information
provided by the Company which contains a material misrepresentation or material
omission in connection with the provision of services by the Consultant under
this Agreement; provided, however, such indemnity agreement shall not apply to
any portion of any such loss, claim, damage, obligation, penalty, judgment,
award, liability, cost, expense or disbursement to the extent it is found by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Consultant. The Company also agrees that the
Consultant shall not have any liability
-2-
<PAGE>
(whether direct or indirect in contract or tort or otherwise) to the Company or
to any person (including, without limitation, Company shareholders) claiming
through the Company for or in connection with the engagement of the Consultant,
except to the extent that any such liability results from the Consultant's gross
negligence or willful misconduct. This indemnification shall survive the
termination of this Agreement.
(b) Each party entitled to indemnification under this agreement
(the "Indemnified Party"), shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 8. Each Indemnified
Party shall furnish such information regarding itself or the claim in question
as an Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with defense of such claim and any litigation
resulting therefrom.
Section 7. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to the conflict of law principles thereof.
Section 8. Entire Agreement; Amendments. This Agreement contains the
entire agreement and understanding between the parties and supersedes and
preempts any prior understanding or agreements, whether written or oral. The
provisions of this Agreement may be amended or waived only with the prior
written consent of the Company and the Consultant.
Section 9. Successors and Assigns. This Agreement shall be binding upon,
inure to the benefit of, and shall be enforceable by the Consultant and the
Company and their respective successors and permitted assigns.
Section 10. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed effective and given upon
actual delivery if presented personally, one business day after the date sent if
sent by prepaid telegram, overnight courier service, telex or facsimile
transmission or five business days if sent by registered or certified mail,
return receipt requested, postage prepaid which shall be addressed to the
following addresses:
-3-
<PAGE>
If to the Company:
NMC Corp.
477 Madison Avenue
New York, New York 10022
If to the Consultant:
at the address set forth above
Section 11. Assignability. Except for the right of the Consultant to
sell, transfer or otherwise dispose of the Shares, neither this Agreement nor
any right, remedy, obligation or liability arising hereunder or by reason hereof
shall be assignable by either the Company or the Consultant without the prior
written consent of the other party hereto.
Section 12. Severability. If any provision of this Agreement or the
application of any such provision to any person or circumstance shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
Section 13. Section and Other Headings. The section headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
Section 14. Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which together shall be deemed to be one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on June ___, 1997 as of the date first written above.
NMC CORP.
By: ____________________________________
Name:
Title:
--------------------------------------------
JENNIFER BRANDT
-4-
Exhibit 5.1
LANE & MITTENDORF LLP
320 Park Avenue
New York, New York 10022
(212) 508-3200
Facsimile: (212) 508-3230
September 4, 1997
NMC Corp.
477 Madison Avenue
New York, NY 10022
Re: Registration Statement on Form S-8
Gentlemen:
We refer to the offering (the "Offering") of 5,000 shares of
Common Stock, $.06-2/3 par value (collectively, the "Securities") of NMC Corp.,
a Delaware corporation (the "Company"), being registered on behalf of the
Company, as described in the Registration Statement on Form S-8 to be filed with
the Securities and Exchange Commission as subsequently amended from time to time
(collectively, the "Registration Statement").
In furnishing our opinion, we have examined copies of the
Registration Statement and the Exhibits thereto. We have conferred with officers
of the Company and have examined the originals or certified, conformed or
photostatic copies of such records of the Company, certificates of officers of
the Company, certificates of public officials, and such other documents as we
have deemed relevant and necessary under the circumstances as the basis of the
opinion expressed herein. In all such examinations, we have assumed the
authenticity of all documents submitted to us as originals or duplicate
originals, the conformity to original documents of all document copies, the
authenticity of the respective originals of such latter documents, and the
correctness and completeness of such certificates. Finally, we have obtained
from officers of the Company such assurances as we have considered necessary for
the purposes of this opinion.
<PAGE>
Based upon and subject to the foregoing and such other matters of
fact and questions of law as we have deemed relevant in the circumstances, and
in reliance thereon, it is our opinion that when the Securities to be sold for
the account of the Company shall have been sold as contemplated in the
Registration Statement, then all of the Securities, upon execution and delivery
of proper certificates therefor, will be duly authorized, validly issued and
outstanding, fully paid and nonassessable.
We hereby consent to the use of our name in the Registration
Statement and in the prospectus forming a part of the Registration Statement
(the "Prospectus"), to references to this opinion contained therein under the
caption of the Prospectus entitled "Legal Matters," and to the inclusion of this
opinion in the Exhibits to the Registration Statement.
We are members of the Bar of the State of New York and we do not
express herein any opinion as to any matters governed by any law other than the
law of the State of New York, the corporate law of the State of Delaware, and
the Federal laws of the United States.
This opinion is limited to the matters set forth herein, and may
not be relied upon in any matter by any other person or used for any other
purpose other than in connection with the corporate authority for the issuance
of the Securities pursuant to and as contemplated by the Registration Statement.
Very truly yours,
LANE & MITTENDORF LLP
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference on Forms S-8 of NMC Corp. of our
report dated October 4, 1996 appearing in this Annual Report on Form 10-K of NMC
Corp. for the year ended July 31, 1996.
WIENER, PENTA & GOODMAN, P.C.
Certified Public Accountants
September 3, 1997
