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Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
------------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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MEDICAL ACTION INDUSTRIES INC.
(Exact Name of Registrant as specified in its Charter)
Delaware 11-2421849
(State or other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
150 Motor Parkway, Hauppauge, New York 11788
(Address of Principal Executive Offices) (Zip Code)
1996 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
(Full Title of Plan)
RICHARD G. SATIN, VICE PRESIDENT AND GENERAL COUNSEL
MEDICAL ACTION INDUSTRIES INC.
150 Motor Parkway
Hauppauge, New York 11788
(Name and Address of Agent for Service)
(516) 231-4600
(Telephone number, including area code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Per Offering Registration
be Registered Registered Share (1) Price (1) Fee
- ------------------------------------------------------------------------------
Common Stock,
par value
$.001 per share 100,000 shs.(2) $3.375 $337,500 $117.00
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(1) Estimated solely for the purpose of calculating the registration fee,
based upon the closing price of the Company's Common Stock on the
NASDAQ-National Market System on September 2, 1997.
(2) In addition, pursuant to Rule 416(a) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
additional shares of Common Stock which may become issuable pursuant
to anti-dilution and adjustment provisions of the Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Medical Action Industries Inc., a Delaware
corporation (the "Corporation" or the "Registrant"), are incorporated herein by
reference.
(a) The Corporation's Annual Report filed on Form 10-K for the
fiscal year ended March 31, 1997.
(b) The Corporation's Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 1997.
(c) The description of the Corporation's common stock, par value
$.001 per share, contained in the Company's Registration
Statement filed on Form 8-A pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act").
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
remaining securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for the purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Names Experts and Counsel.
None.
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Item 6. Indemnification of Directors and Officers.
Under provisions of the Certificate of Incorporation and By-Laws of
the Registrant, each person who is or was a director or officer of the
Registrant shall be indemnified by Registrant as of right to the full extent
permitted or authorized by the General Corporation Law of Delaware.
Under such law, to the extent that such person is successful on the
merits of a defense of a suit or proceeding brought against him by reason of
the fact that he is a director or officer of Registrant, he shall be
indemnified against expenses (including attorneys' fees) reasonably incurred in
connection with such action.
If unsuccessful in the defense of a third-party civil suit or a
criminal suit is settled, such a person shall be indemnified under such law
against both (1) expenses (including attorneys' fees) and (2) judgments, fines
and amounts paid in settlement if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of
Registrant, and with respect to any criminal action, had no reasonable cause to
believe his conduct was unlawful.
If unsuccessful in the defense of a suit brought by or in the right of
Registrant, or if such suit is settled, such a person shall be indemnified
under such law only against expenses (including attorneys' fees) incurred in
the defense or settlement of such 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 Registrant, except that if such a person is adjudicated to be liable in such
suit for negligence or misconduct in the performance of his duty to Registrant,
he cannot be made whole even for expenses unless the court determines that he
is fairly and reasonably entitled to be indemnified for such expenses.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 1996 Non-Employee Directors Stock Option Plan.
5 Opinion and consent of Richard G. Satin, Vice President and
General Counsel, relating to the legality of securities under
the 1996 Non-Employee Directors Stock Option Plan.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Richard G. Satin, Vice President and General
Counsel - included in his opinion filed as Exhibit 5.
3
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or int he
aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, and information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Sections 13 or 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.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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
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reference in the registration statement that 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.
(h) 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, the
Registrant certifies that it has reasonable grounds to believe that it meets
all 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 Hauppauge, New York on the 3rd day of September, 1997.
MEDICAL ACTION INDUSTRIES INC.
By: /s/ Paul D. Meringola
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Paul D. Meringola, President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed on September 3, 1997 by
the following persons in the capacities indicated. Each person whose signature
appears below constitutes and appoints Paul D. Meringola, with full power of
substitution, our true and lawful attorney and agent to do any and all acts and
things in our name and on our behalf in our capacities indicated below which we
may deem necessary or advisable to enable Medical Action Industries Inc. to
comply with the Securities Act of 1933, as amended, and any rules, regulations
and requirements of the Securities and Exchange Commission, in connection with
this Registration Statement including specifically, but not limited to,
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power and authority to sign for us or any of us in our names in the capacities
stated below, any and all amendments (including post-effective amendments)
thereof; and we do hereby ratify and confirm all that we shall do or cause to
be done by virtue thereof.
Signature Title
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/s/ Joseph R. Meringola Chairman of the Board
- --------------------------
Joseph R. Meringola
/s/ Paul D. Meringola President and Director
- --------------------------
Paul D. Meringola
/s/ Richard G. Satin Vice President, General Counsel and Director
- -------------------------- (Principal Accounting Officer)
Richard G. Satin
/s/ Bernard Wengrover Director
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Bernard Wengrover
/s/ Philip F. Corso Director
- --------------------------
Philip F. Corso
/s/ Thomas A. Nicosia Director
- --------------------------
Thomas A. Nicosia
7
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
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MEDICAL ACTION INDUSTRIES INC.
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Form S-8 Registration Statement
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EXHIBIT INDEX
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Page No. in Sequential
Exhibit Numbering of all Pages,
Number Exhibit Description including Exhibit Pages
- ------ ------------------- -----------------------
4.1 1996 Non-Employee Directors
Stock Option Plan.................................9
5 Opinion and Consent of Counsel...................14
23.1 Consent of Ernst & Young LLP.....................15
23.2 Consent of Counsel...............................See Exhibit 5
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1996 MEDICAL ACTION INDUSTRIES INC. STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
1. Purpose
The purpose of the 1996 Medical Action Industries Inc. Non-Employee
Directors Stock Option Plan (the "Plan") is to increase the proprietary and
vested interest of the non-employee directors of Medical Action Industries Inc.
(the "Company") in the growth and performance of the Company by granting such
directors options to purchase shares of Common Stock, $.001 par value per share
(the "Stock") of the Company.
2. Administration
The Plan shall be administered by the Company's Board of Directors
(the "Board"). Subject to the provisions of the Plan, the Board shall be
authorized to interpret the Plan, to establish, amend, and rescind any rules
and regulations relating to the Plan and to make all other determinations
necessary or advisable for the administration of the Plan; provided, however,
that the Board shall have no discretion with respect to the selection of
directors to receive options under the Plan, the number of shares of Stock
subject to any such options, the purchase price thereunder or the timing of
grants of options under the Plan. The determinations of the Board in the
administration of the Plan, as described herein, shall be final and conclusive.
The Secretary of the Company shall be authorized to implement the Plan in
accordance with its terms and to take such actions of a ministerial nature as
shall be necessary to effectuate the intent and purposes thereof. The validity,
construction and effect of the Plan and any rules and regulations relating to
the Plan shall be determined in accordance with the laws of the State of New
York.
3. Eligibility
The class of individuals eligible for grants of options under the Plan
shall be Eligible Directors, as defined below. Eligible Director shall mean a
director of the Company who is not an employee of the Company or its
subsidiaries and has not, within one year immediately preceding the
determination of such director's eligibility, received any award under any plan
of the Company or its subsidiaries that entitles the participants therein to
acquire stock, stock options or stock appreciation rights of the Company or its
subsidiaries (other than any other plan which participants' entitlements are
governed by provisions meeting the requirements of Rule 16b-3(c)(2)(ii)
promulgated under the Securities Exchange Act of 1934). Any holder of an option
granted hereunder shall hereinafter be referred to as a "Participant".
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4. Shares Subject to the Plan
Subject to adjustment as provided in Section 7, an aggregate of
100,000 shares of Stock shall be available for issuance upon the exercise of
options granted under the Plan. The shares of Stock deliverable upon the
exercise of options may be made available from authorized but unissued share or
shares reacquired by the Company, including shares purchased in the open market
or in private transactions. If any option granted under the Plan shall
terminate for any reason without having been exercised, the shares subject to,
but not delivered under, such option shall be available for other options.
5. Grant, Terms and Conditions of Options
Each individual who is an Eligible Director will be granted an option
to purchase 2,500 shares of Stock as of the date of each Annual Stockholders
Meeting following the effectiveness of the Plan. The options granted will be
nonstatutory stock options not intended to qualify under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code") and shall have the
following terms and conditions:
(a) Price. The purchase price per share of Stock deliverable
upon the exercise of each option shall be 100% of the Fair Market
Value per share of the Stock on the date the option is granted. For
purposes of determining Fair Market Value of a share of Common Stock
on the date of grant, if the Common Stock (i) is then listed on any
national securities exchange, the fair market value shall be the
closing price per share of the Common Stock on such exchange at the
close of the trading session on the date of grant, (ii) is then listed
on NASDAQ (but not on any national securities exchange), the Fair
Market Value shall be the closing price per share of the Common Stock
on NASDAQ on the date of grant, or (iii) is then traded on the
over-the-counter market (but not on a national securities exchange or
NASDAQ), the Fair Market Value shall be the average of the closing bid
and asked prices of the Common Stock as reported by the National
Quotation Bureau, Inc. or other entity then publishing bid and asked
prices for the Common Stock for the date of grant, or, if unavailable,
then the last trading date on which bid and asked quotations were
published immediately preceding the date of grant.
(b) Payment. Options may be exercised only upon payment of
the purchase price thereof in full. Such payment shall be made in cash
or in Stock, which shall have a Fair Market Value (determined in
accordance with the rules of paragraph (a) above), at least equal to
the aggregate exercise price of the shares being purchased, or a
combination of cash and Stock.
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(c) Exercisability and Term of Option. Options shall be
exercisable in whole or in part at all times during the period
beginning on the date of grant until terminated, as provided in
paragraph (d) below.
(d) Termination of Service as Eligible Director.
(i) Except as provided in subparagraph (ii) of this
paragraph (d), all outstanding options held by a Participant
shall be automatically cancelled upon such Participant's
termination of service as an Eligible Director.
(ii) Upon termination of a Participant's service as
an Eligible Director by reason of such Participant's
voluntary mid-term resignation, declining to stand for
reelection (whether as a result of the Company's mandatory
retirement program or otherwise), becoming an employee of the
Company or a subsidiary thereof or becoming disabled (as
defined in the Company's pension plan), all outstanding
options held by such Participant on the date of such
termination shall expire five years from the date upon which
the Participant ceases to be an Eligible Director. In the
event of the death of a Participant (whether before or after
termination of service as an Eligible Director), all
outstanding options held by such Participant (and not
previously cancelled or expired) on the date of such death
shall be fully exercisable by the Participant's legal
representative within one year after the date of death
(without regard to the expiration date of the option
specified in accordance with the preceding sentence).
(e) Nontransferability of Options. No option shall be
transferable by a Participant otherwise than by will or the laws of
descent and distribution, and during the lifetime of the Participant
to whom an option is granted it may be exercised only by the
Participant or by the Participant's guardian or legal representative.
Notwithstanding the above, options may be transferred pursuant to a
qualified domestic relations order.
(f) Listing and Registration. Each option shall be subject to
the requirement that if at any time the Board shall determine, in its
discretion, that the listing, registration or qualification of the
Stock subject to such option upon any securities exchange or under any
state or federal law, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or in
connection with, the granting of such option or the issue or purchase
of shares thereunder, no such option may be exercised in whole or in
part unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any condition
not acceptable to the Board.
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(g) Option Agreement. Each option granted hereunder shall be evidenced
by an agreement with the Company which shall contain the terms and provisions
set forth herein and shall otherwise be consistent with the provisions of the
Plan.
6. Adjustment of and Change in Stock
In the event of a stock split, stock dividend, subdivision or
combination of the Stock or other change in corporate structure affecting the
Stock, the number of shares of Stock authorized by the Plan shall be increased
or decreased proportionately, as the case may be, and the number of shares of
Stock subject to any outstanding option shall be increased or decreased
proportionately, as the case may be, with appropriate corresponding adjustment
in the purchase price per share of Stock thereunder.
7. Mergers, Sales and Change of Control
In the case of (i) any merger, consolidation or combination of the
Company with or into another corporation (other than a merger, consolidation or
combination in which the Company is the continuing corporation and which does
not result in its outstanding Stock being converted into or exchanged for
different securities, cash or other property, or any combination thereof) or a
sale of all or substantially all of the assets of the Company or (ii) a Change
in Control (as defined below) of the Company, the holder of each option then
outstanding immediately prior to such Change in Control shall (unless the Board
determines otherwise) have the right to receive on the date or effective date
of such event an amount equal to the excess of the Fair Market Value on such
date of (a) the securities, cash or other property, or combination thereof,
receivable upon such merger, consolidation or combination in respect of a share
of Stock, in the cases covered by clause (i) above, or in the case of a slae of
assets referred to in such clause (i), a share of Stock, or (b) the final
tender offer price in the case of a tender offer resulting in a Change in
Control or (c) the value of the Stock covered by the option as determined by
the Board, in the case of Change in Control by reason of any other event, over
the exercise price of such option, multiplied by the number of shares of Stock
subject to such option. Such amount will be payable fully in cash.
Any determination by the Board made pursuant to this Section 7 will be
made as to all outstanding options and shall be made (a) in cases covered by
clause (i) above, prior to the occurrence of such event, (b) in the event of a
tender or exchange offer, prior to the purchase of any Stock pursuant thereto
by the offeror and (c) in the case of a Change in Control by reason of any
other event, just prior to or as soon as practicable after such Change in
Control.
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A "Change in Control" shall be deemed to have occurred if (a) any
person, or any two or more persons acting as a group, and all affiliates of
such person or persons, shall own beneficially 20% or more of the Stock
outstanding, or (b) if following (i) a tender or exchange offer for voting
securities of the Company (other than any such offer made by the Company), or
(ii) a proxy contest for the election of directors of the Company, the persons
who were directors of the Company immediately before the initiation of such
event (or directors who were appointed by such directors) cease to constitute a
majority of the Board of Directors of the Company upon the completion of such
tender or exchange offer or proxy contest or within one year after such
completion.
8. No Rights of Stockholders
Neither a Participant nor a Participant's legal representative shall
be, or have any of the rights and privileges of, a stockholder of the Company
in respect of any shares purchasable upon the exercise of any option, in whole
or in part, unless and until certificates for such shares shall have been
issued.
9. Plan Amendments
The Plan may be amended by the Board, as it shall deem advisable or to
conform to any change in any law or regulation applicable thereto; provided,
that the Board may not, without the authorization and approval of stockholders:
(i) increase the number of shares which may be purchased pursuant to options
hereunder, either individually or in the aggregate, except as permitted by
Section 8, (ii) change the requirements of Section 5(a) that option grants be
priced at Fair Market Value, except as permitted by Section 6, (iii) modify in
any respect the class of individuals who constitute Eligible Directors; or (iv)
materially increase the benefits accruing to Participants hereunder. The
provisions of Sections 3 and 5 may not be amended more than once every six
months, other than to comport with changes in the Code, the Employee Retirement
Income Security Act, or the rules under either such statute.
10. Effective Date and Duration of Plan
The Plan shall become effective on the day after the Company's Annual
Stockholders Meeting at which the Plan is approved by Stockholders. The Plan
shall terminate on the day following the tenth Annual Stockholders Meeting at
which Directors are elected succeeding the Annual Stockholders Meeting at which
the Plan was approved by Stockholders, unless the Plan is extended or
terminated at an earlier date by Stockholders.
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September 3, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Medical Action Industries Inc.
Registration Statement on Form S-8
Gentlemen:
Reference is made to the filing by Medical Action Industries Inc. (the
"Corporation") of a Registration Statement on Form S-8 with the Securities and
Exchange Commission pursuant to the provisions of the Securities Act of 1933,
as amended, covering the registration of 100,000 shares of the Corporation's
Common stock, $.001 par value per share, in connection with the Corporation's
1996 Non-Employee Directors Stock Option Plan.
As General Counsel for the Corproation, I have examined its corporate
records, including its Certificate of Incorporation, By-Laws, its corporate
minutes, the form of its Common Stock certificate, its 1996 Non-Employee
Directors Stock Option Plan, related documents under such plan, and such other
documents as I have deemed necessary or relevant under the circumstances.
Based upon my examination, I am of the opinion that:
1. The Corporation is duly organized and validly
existing under the laws of the State of Delaware.
2. There have been reserved for issuance by the Board
of Directors of the Corporation 100,000 shares of
its Common Stock, $.001 par value per share. The
shares of the Corporation's Common Stock, when
issued under the 1996 Non-Employee Directors Stock
Option Plan, will be validly authorized, legally
issued, fully paid and non-assessable.
I hereby consent to be named in the Registration Statement as General
Counsel of the Corporation, and I hereby consent to the filing of this opinion
as Exhibit 5 to the Registration Statement.
Very truly yours,
Richard G. Satin
Vice President-Operations
and General Counsel
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Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the registration of 100,000 shares of Common Stock
pursuant to the Medical Action Industries Inc. 1996 Non-Employee Directors
Stock Option Plan of our report dated May 23, 1997, with respect to the
financial statements of Medical Action Industries Inc. incorporated by
reference it is Annual Report (Form 10-K) for the year ended March 31, 1997,
and the related financial statement schedule included therein, filed with the
Securities and Exchange Commission.
Ernst & Young LLP
Melville, New York
September 3, 1997
