As filed with the Securities and Exchange Commission on September 3, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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E-Z-EM, INC.
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(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 11-1999504
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
717 MAIN STREET,
WESTBURY, NEW YORK 11590
(Address of principal executive offices) (Zip Code)
E-Z-EM, Inc. 1983 Stock Option Plan and E-Z-EM, Inc.
1984 Directors and Consultants Stock Option Plan
(Full Title of the Plan)
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Howard S. Stern
Chairman of the Board
E-Z-EM, Inc.
717 Main Street
Westbury, New York 11590
(Name and Address of agent for service)
(516) 333-8230
(Telephone number, including area code, of agent for service)
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With a copy to:
Robert H. Friedman, Esq.
Olshan Grundman Frome & Rosenzweig LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
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Approximate date of proposed sales pursuant to the
plan: From time to time after the effective date of this
registration statement.
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
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Common Stock
par value,
$.10 per 200,000 (1)
share shares $10.625(1) $2,125,000 $732.76
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(1) There are also registered hereby such indeterminate number of shares of
Common Stock as may become issuable by reason of the operation of the
anti-dilution provisions of the Company's 1983 Stock Option Plan and its 1984
Directors and Consultants Stock Option Plan. The offering price is based on the
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closing price of the Company's Common Stock on August 27, 1996 as reported by
the American Stock Exchange.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference and made a
part hereof:
(a) The E-Z-EM, Inc.'s (the "Company's") Annual Report on Form
10-K for the fiscal year ended June 1, 1996; and
(b) The description of the Company's securities contained in
the Company's Registration Statements on Form 8-A filed November 20,
1984 and October 6, 1992.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13, 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which de-registers all
securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports and
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Company's By-laws authorize indemnification of directors and
officers as follows:
4.1 RIGHT OF INDEMNIFICATION. The Company shall indemnify any person
who was or is a party or threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, either civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director, officer or employee of the company or a constituent corporation
absorbed in a consolidation or merger, or is or was serving at the request of
the Company or a constituent corporation absorbed in a consolidation or merger,
as a director, officer or employee or another enterprise, or is or was director,
officer or employee of the Company serving at its request as an administrator,
trustee or other fiduciary of one or more of the employee benefit plans of the
Company or other enterprise,
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against expenses (including attorneys' fees), judgments, fines, excise taxes and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
Company and, with respect to any criminal action or proceeding had no reasonable
cause to believe his conduct was unlawful, to the extent that (i) such person is
not otherwise indemnified and (ii) such indemnification is permitted by
applicable law. For this purpose the board of directors may, and on request of
any such person shall be required to, determine in each case whether or not the
applicable standards in any such statute have been met, or such determination
shall be made by independent legal counsel if the board so directs or if the
board is not empowered by statute to make such determination. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in, or not opposed to, the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful. Expenses incurred by
an officer or director of the Company in defending a civil or criminal action,
suit or proceeding shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding, (i) to the extent that such
person is not otherwise indemnified and (ii) subject to the provisions of any
applicable statute.
4.2 INDEMNIFICATION NOT EXCLUSIVE. The foregoing indemnification and
advancement of expenses shall not be deemed exclusive of any other right to
which one indemnified or advanced expenses may be entitled, both as to action in
his official capacity and as to action in another capacity while holding such
office, and shall inure to the benefit of the heirs, executors and
administrators of any such person.
4.3 INSURANCE AND OTHER INDEMNIFICATION. The board of directors shall
have the power to (i) purchase and maintain, at the Company's expense, insurance
on behalf of the company and on behalf of others to the extent that power to do
so has been or may be granted by statute, and (ii) give other indemnification to
the extent permitted by law.
See Item 9(c) below for information regarding the position of the
Commission with respect to the effect of any indemnification for liabilities
arising under the Securities Act of 1933, as amended.
Section 145 of the Delaware General Corporation Law provides as
follows:
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"(a) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than action by or in the right
of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
(b) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
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(c) To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections
(a) and (b) of this section, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made (1) by the board of directors by a majority
vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable,
or, even if obtainable a quorum of disinterested directors so directs,
by independent legal counsel in a written opinion or (3) by the
stockholders.
(e) Expenses incurred by an officer or director in defending a
civil or criminal action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation
as authorized in this section. Such expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this section shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by
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him in any such capacity, or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with
respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee, or agent
with respect to any employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participant and
beneficiaries of an employee benefit plan shall be deemed to have acted
in a manner "not opposed to the best interests of the corporation" as
referred to in this section.
(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of
expenses or indemnification brought under this section or under any
bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. The Court of Chancery may summarily determine a
corporation's obligation to advance expenses (including attorneys'
fees)."
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The Company maintains a directors and officers insurance and company
reimbursement policy. The policy insures directors and officers against
unindemnified loss arising from certain wrongful acts in their capacities and
reimburses the Company for such loss for which the Company has lawfully
indemnified the directors and officers. The policy contains various exclusions,
none of which relate to the offering hereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
*4(a) - Restated Certificate of Incorporation of the
Company, as amended (incorporated by reference to the
Company's Form 10-Q for the quarter ended December 2,
1995 (the "December 2, 1995 10-Q")).
*4(b) - Bylaws of the Company. (Incorporated by reference
to the Company's Form 10-K for the year ended May
28, 1994).
*4(c) - E-Z-EM, Inc. 1983 Stock Option Plan, as amended
(incorporated by reference to the December 2, 1995
10-Q).
*4(d) - 1984 Directors and Consultants Stock Option Plan,
as amended (incorporated by reference to the
December 2, 1995 10-Q).
5 - Opinion of Olshan Grundman Frome & Rosenzweig LLP.
*21 - Subsidiaries of the Company (incorporated by
reference to the Company's Form 10-K for the year
ended June 1, 1996).
23(a) - Consent of Grant Thornton LLP, independent
auditors.
23(b) - Consent of Olshan Grundman Frome & Rosenzweig LLP
(included in its opinion filed herewith as Exhibit
5).
24 - Powers of Attorney (included on pages 11-12).
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* Indicates exhibits incorporated by reference herein.
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ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
a) 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 requires by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts
or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high 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.
b) 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.
c) 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.
d) 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
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
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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.
e) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Westbury, State of New York, on this 29th day of
August, 1996.
E-Z-EM, INC.
(Registrant)
/s/ Howard S. Stern
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Howard S. Stern, Chairman of the Board, Director
POWER OF ATTORNEYS AND SIGNATORIES
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated. Each of the undersigned officers and
directors of E-Z-EM, Inc. hereby constitutes and appoints Howard S. Stern and
Daniel R. Martin and each of them singly, as true and lawful attorneys-in-fact
and agents with full power of substitution and resubstitution, for him in his
name in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and to prepare any and all exhibits thereto,
and other documents in connection therewith, and to make any applicable state
securities law or blue sky filings, granting unto said attorneys-in-fact and
agents, full power and authority to do and perform each and every act and thing
requisite or necessary to be done to enable E-Z-EM, Inc. to comply with the
provisions of the Securities Act of 1933, as amended, and all requirements of
the Securities and Exchange Commission, as fully to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE
/s/ Howard S. Stern Chairman of the Board, Director August 29, 1996
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Howard S. Stern
/s/ Daniel R. Martin President, Chief Executive August 29, 1996
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Daniel R. Martin Officer, Director
/s/ Dennis J. Curtin Vice President-Finance (Chief August 29, 1996
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Dennis J. Curtin Accounting and Financial
Officer)
/s/ Michael Davis Director August 29, 1996
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Michael Davis
/s/ Paul S. Echenberg Director August 29, 1996
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Paul S. Echenberg
/s/ James L. Katz Director August 29, 1996
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James L. Katz
/s/ Donald A. Meyer Director August 29, 1996
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Donald A. Meyer
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/s/ Irwin H. Nadel Director August 29, 1996
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Irwin H. Nadel
/s/ Robert M. Topol Director August 29, 1996
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Robert M. Topol
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Exhibit 5
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OLSHAN GRUNDMAN FROME & ROSENZWEIG
505 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 753-7200
September 3, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: E-Z-EM, Inc.
Registration Statement on Form S-8
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Gentlemen:
Reference is made to the Registration Statement on Form S-8
dated September 3, 1996 (the "Registration Statement"), filed with the
Securities and Exchange Commission by E-Z-EM, Inc., a Delaware corporation (the
"Company"). The Registration Statement relates to an aggregate of 200,000 shares
(the "Shares") of common stock, par value $.10 per share (the "Common Stock").
The Shares will be issued and sold by the Company in accordance with the
Company's 1983 Stock Option Plan (the "1983 Plan") and the Company's 1984
Directors and Consultants stock Option Plan (the "1984 Plan" and together with
the 1983 Plan, the "Plans").
We advise you that we have examined originals or copies
certified or otherwise identified to our satisfaction of the Certificate of
Incorporation and By-laws of the Company, minutes of meetings of the Board of
Directors and stockholders of the Company, the Plans and such other documents,
instruments and certificates of officers and representatives of the Company and
public officials, and we have made such examination of the law, as we have
deemed appropriate as the basis for the opinion hereinafter expressed. In making
such examination, we have assumed the genuineness of all signatures, the
authenticity of
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all documents submitted to us as originals, and the conformity to original
documents of documents submitted to us as certified or photostatic copies.
Based upon the foregoing, we are of the opinion that the
Shares, when issued and paid for in accordance with the terms and conditions set
forth in the Plans, will be duly and validly issued, fully paid and
non-assessable.
Very truly yours,
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
EXHIBIT 23.2
Consent of Independent Auditors
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The Board of Directors
E-Z-EM, Inc.
We have issued our report dated August 8, 1996, accompanying
the consolidated financial statements and schedule of E-Z-EM, Inc. and
Subsidiaries appearing in the 1996 Annual Report on Form 10-K of the Company for
the year ended June 1, 1996 which are incorporated by reference in this
Registration Statement. We consent to the incorporation by reference in the
Registration Statement of the aforementioned report.
Grant Thornton LLP
Melville, New York
August 30, 1996
