As filed with the Securities and Exchange Commission on July 23, 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 BHB Capital Group, Inc.
(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
- ------------------------------------------------------------------------------------------------------
Shares of Common Stock, $.06-2/3 par
value
<S> <C> <C> <C> <C>
("Common Stock")....................... 50,000 2.60 130,000 39.40
- ------------------------------------------------------------------------------------------------------
Total Registration Fee................... 39.40
======================================================================================================
</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.
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<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.
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<PAGE>
Item 8. EXHIBITS.
Number Description of Exhibit
4.1 -- Consulting Agreement between the Company and BHB Capital Group, Inc.
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 shall be
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<PAGE>
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.
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<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 July 15, 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 Officer, July 15, 1997
Marvin E. Greenfield Treasurer, Chief Financial Officer
and Director
Director July __, 1997
Arnold Poliskin
/s/ Paul C.R. Woolford Director July 15, 1997
Paul C.R. Woolford
EXHIBIT 4.1
CONSULTING AGREEMENT
AGREEMENT dated as of July 2, 1997 by and between NMC CORP., a
Delaware corporation having an office at 477 Madison Avenue, Suite 701, New
York, New York 10022 (the "Company"), and BHB Capital Group, Inc., a Delaware
corporation (the "Consultant"), having an office at 110 William Street, New
York, New York.
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; Duties.
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 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. Consultant agrees to use its reasonable best efforts to perform all
services required hereunder in a competent and timely manner.
SECTION 2. Term of the Agreement.
(a) The term of this Agreement shall commence as of the date first set
forth above, and, unless earlier terminated pursuant hereto, shall continue for
a period of one (1) year.
(b) In the case of any material breach by Consultant of its obligations
under this Agreement, the Company may terminate this Agreement upon thirty (30)
days written notice, such notice to describe the breach in detail, unless
Consultant has cured the breach within such thirty (30) day period, or in the
event that the breach cannot be cured within such period, Consultant has
commenced with due diligence to cure such breach.
<PAGE>
(c) The termination of this Agreement by either party hereto shall not
affect, restrict, diminish or remove any rights, obligations or remedies held or
arising by either party under the terms of this Agreement up to and through the
effective date of termination hereof, July 2, 1998.
SECTION 3. Consultant's Compensation.
For its services hereunder, the Company shall issue to Consultant 50,000
shares of the Company's common stock, $.062/3 par value (the "Common Stock").
SECTION 4. Other Benefits and Expenses
The Company shall pay or reimburse Consultant for all reasonable and
necessary expenses incurred by it in connection with its duties hereunder, upon
submission by Consultant to the Company of such written evidence of such expense
as the Company may require. The Consultant shall obtain the prior written
approval of the Company for all expenses.
SECTION 5. Confidentiality.
Consultant understands that, in performing its responsibilities
hereunder, it will have access to Confidential Information (as hereinafter
defined) of the Company. Consultant shall hold in strict confidence unless
compelled to disclose by judicial or administrative process, or, in the opinion
of counsel, by other requirements of law, Confidential Information (as
hereinafter defined) and shall not release or disclose such information to any
other person, except its employees, auditors, attorneys, representatives and
other advisors and agents in connection with this Agreement and the services to
be provided hereunder, provided that any such person shall have first been
advised of and agreed to the confidentiality provisions of this Section 5. For
purposes hereof, "Confidential Information" shall mean all information of any
kind which the Company deems to be confidential, except information (i)
disclosed in any filing by the Company pursuant to the Securities Exchange Act
of 1934, (ii) available to the public other than as a result of a disclosure by
Consultant in violation of the terms hereof, (iii) available to Consultant on a
non-confidential basis prior to disclosure to Consultant by the Company, or (iv)
available to Consultant on a non-confidential basis from a source other than the
Company, provided that such source is not known by Consultant to be bound by a
confidentiality agreement with the Company or otherwise is known by Consultant
to be prohibited by a contractual, legal or fiduciary obligation from
transmitting the information to Consultant.
SECTION 6. No Solicitation. Consultant agrees that during the term of this
Agreement and for a period of one (1) year following the expiration of this
Agreement, it will not solicit the employment of any employee of the Company on
behalf of any other
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<PAGE>
person, firm, corporation or other entity or otherwise interfere with the
employment relationship between any employee or officer of the Company and the
Company.
SECTION 7. Limitation of Liability; Indemnification.
(a) Consultant shall have no liability to the Company, its shareholders
or to any third party for any losses, liabilities, obligations, fines,
injunctions or other costs or expenses of any kind directly or indirectly
sustained, or incurred or arising as a result of the services that are the
subject of this Agreement (or any action or inaction of any third party retained
by or acting on behalf of Consultant hereunder) or for any other cause or
reason, except as may result from Consultant's gross negligence or wilful
misconduct in the performance of its duties hereunder.
(b) The Company agrees to indemnify and hold Consultant harmless from
and against any losses, claims, damages or liabilities, joint or several, to
which Consultant may become subject in connection with the services which are
the subject of this Agreement, and to reimburse Consultant for any out-of-pocket
expenses including reasonable fees and expenses of counsel (including the cost
of any investigation and preparation) incurred by Consultant in connection
therewith, whether or not resulting in any liability; provided, however, that
the Company shall not be liable under the foregoing indemnity to the extent that
a court having jurisdiction shall have determined by a final judgment that such
loss, claim, damage or liability resulted from the willful misconduct or gross
negligence of Consultant. This indemnification shall remain in full force and
effect following the completion or termination of this Agreement.
(c) Consultant agrees to indemnify and hold the Company harmless from
and against any losses, claims, damages or liabilities, joint or several, to
which the Company may become subject in connection with the services which are
the subject of this Agreement, and to reimburse the Company for any
out-of-pocket expenses including reasonable fees and expenses of counsel
(including the cost of any investigation and preparation) incurred by the
Company in connection therewith, whether or not resulting in any liability;
provided, however, that Consultant shall not be liable under the foregoing
indemnity except to the extent that a court having jurisdiction shall have
determined by a final judgment that such loss, claim, damage or liability
resulted from the willful misconduct or gross negligence of Consultant. The
indemnity agreement in this paragraph shall, upon the same terms and conditions,
extend to and inure to the benefit of each person, if any, who may be deemed to
control the Company and to the respective officers, directors, employees and
advisors of the Company and such control persons. This indemnification shall
remain in full force and effect following the completion or termination of this
agreement.
(d) If any lawsuit or enforcement action is filed against any party
entitled to the benefit of indemnity under this Section 7 by any third party,
written notice thereof shall be given to the indemnifying party as promptly as
practicable; provided that the failure of any
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<PAGE>
indemnified party to give timely notice shall not affect rights to
indemnification hereunder except to the extent that the indemnifying party
demonstrates that such failure was prejudicial to the ability of the
indemnifying party to defend such lawsuit or action and resulted in increased
cost to the indemnifying party pursuant to this Section 7. After such notice, if
the indemnifying party shall acknowledge in writing to such indemnified party
that such indemnifying party shall be obligated under the terms of its indemnity
hereunder in connection with such lawsuit or action, then the indemnifying party
shall be entitled, if it so elects, to take control of the defense and
investigation of such lawsuit or action and to employ and engage attorneys of
its own choice to handle and defend the same, at the indemnifying party's cost,
risk and expense; and such indemnified party shall cooperate in all reasonable
respects, at the indemnifying party's cost, risk and expense, with the
indemnifying party and such attorneys in the investigation, trial and defense of
such lawsuit or action and any appeal arising therefrom; provided, however, that
the indemnified party may, at its own cost, participate in such investigation,
trial and defense of such lawsuit or action and any appeal arising therefrom.
However, if the defendants in any action involve both the indemnifying party and
the indemnified party, and the indemnified party concludes that representation
of both the indemnifying party and the indemnified party by the same counsel is
inappropriate under applicable standards of professional conduct due to actual
or potential differing interests between them or for some other reason, then the
indemnifying party shall have the right, at the expense of the indemnifying
party, to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of the indemnified party.
(e) In the case of any legal action directly between the Company and
Consultant with regard to any matter covered by the provisions of this Section
7, the non-prevailing party shall pay all reasonable attorney's fees and
expenses of the prevailing party incurred solely as a result of such action.
SECTION 8. Authorization. Each party hereto has taken all necessary action to
duly authorize the execution, delivery and performance of this Agreement.
SECTION 9. Modification. Except as otherwise provided herein, this Agreement may
not be modified, changed, discharged, waived or terminated except by an
instrument in writing signed by the party against whom the enforcement of any
such modification, change, discharge, waiver or termination is sought.
SECTION 10. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous arrangements or understandings with respect thereto.
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<PAGE>
SECTION 11. Notices. All notices and other communications hereunder to any party
shall be in a written instrument delivered by hand or duly sent by first class,
registered or certified mail, return receipt requested and postage prepaid,
addressed to such party at the address set forth on the first page of this
Agreement or such other address as may hereafter by designated in writing by the
addressee. All such notices and communications shall be deemed to have been
received (a) in the case of personal delivery, on the date of such delivery, and
(b) in the case of mailing, on the fifth day following the date of such mailing.
SECTION 12. Survival. The indemnification granted under Section 7 above shall
survive the termination or cancellation of this Agreement and shall be binding
upon and inure to the benefit of the parties hereto, their successors and
assigns.
SECTION 13. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
permitted assigns and representatives. This Agreement shall not be assignable in
whole or in part, in any of its terms, obligations, responsibilities or
provisions by any party hereto without the express written consent of the other
party; provided, however, that this provision shall in no way limit the right of
Consultant to enlist, hire or retain counsel, consultants, advisors, experts or
other third parties to assist it in carrying out and administering its duties
and responsibilities hereunder.
SECTION 14. Relationship. The sole relationships existing between the Company
and Consultant shall be that as specifically provided under the terms of this
Agreement. This Agreement shall not be construed as creating any partnership,
joint venture or any other form of joint operation or organization wherein the
parties hereto are deemed to be partners.
SECTION 15. Cooperation. The parties hereto agree to execute and deliver from
time to time such additional documents, instruments, agreements, and other
evidences of authority as may be necessary or prudent to carry out the intent of
this Agreement and the transactions contemplated hereby.
SECTION 16. Counterparts. This Agreement may be executed in any number of
counterparts and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 17. Severability. The invalidity or unenforceability of any provision
hereof shall in no way effect the validity or enforceability of any other
provision. The parties to this Agreement agree and intend that this Agreement
shall be enforced as fully as it may be enforced consistent with applicable
statutes and rules of law.
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<PAGE>
SECTION 18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first set forth above.
NMC CORP.
By: /s/ Marvin E. Greenfield
Name: Marvin E. Greenfield
Title: President
BHB CAPITAL GROUP, INC.
By: /s/ Adolph L. Bennett
Name: Adolph L. Bennett
Title: Vice President
LANE & MITTENDORF LLP
320 Park Avenue, 10th floor
New York, New York 10022
July 15, 1997
Continental Stock Transfer
& Trust Company
2 Broadway
New York, New York 10004
Ladies and Gentlemen:
We are counsel to NMC Corp., a Delaware corporation (the "Company").
Our opinion has been requested in connection with the issuance of 50,000 shares
of the Company's Common Stock, $.06 2/3 par value per share (the "Shares") to be
issued to BHB Capital Group, Inc. (the "Holder").
In such capacity and for the purposes of rendering the opinion
hereinafter expressed, we have examined and relied upon original, reproduced or
certified copies of corporate records, agreements, certificates and other
communications of officers and representatives of the Company, and of public
officials and such other documents as we have deemed relevant or necessary as a
basis for such opinion. In such examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
the legal capacity of all persons executing such documents, the conformity to
authentic originals of all documents submitted to us as reproduced or certified
copies and the truth and correctness of any representations and warranties
contained therein.
Based upon and in reliance upon the foregoing, and subject to the
qualifications and limitations hereinafter set forth, we are of the opinion
that:
(1) The Shares have been authorized and validly issued.
<PAGE>
Continental Stock Transfer
& Trust Company
July 15, 1997
Page 2
We are admitted to the practice of law only in the State of New York.
The opinions set forth herein are based upon the laws of the State of New York,
the corporate laws of the State of Delaware and the Federal laws of the United
States.
The opinion expressed herein is for the benefit of and may be relied
upon only by you and solely in connection with the transactions contemplated
herein. Neither this opinion nor any extract herefrom or reference hereto shall
be published or delivered to any other person or relied upon for any other
purpose without our express written consent.
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
July 15, 1997
