As filed with the Securities and Exchange Commission on May 9, 1997
Registration No. 333-______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------------------
AVITAR, INC.
(Exact name of registrant as specified in its charter)
Delaware 06-1174053
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
------------------------------
65 Dan Street
Canton, Massachusetts 02021
(617) 575-9790
(Address of Principal Executive Office)
Avitar Stock Based Compensation Plan
---------------------------------------------
(Full Title of the Plan)
PETER P. PHILDIUS
65 Dan Street
Canton, Massachusets 02021
(Name and Address of Agent for Service)
Copies to: EUGENE M. CRONIN, ESQ.
DOLGENOS NEWMAN & CRONIN LLP
NEW YORK, NEW YORK 10012
(212) 925-2800
CALCULATION OF REGISTRATION FEE
- - ------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title of Each Class Amount to Be Offering Aggregate Amount of
of Securities to be Registered Price Per Offering Registration
Registered Share (1) Price Fee
Common Stock,$0.01 par 1,400,000 $ 0.50 $700,000 $212.12
value
- - ------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933.
1
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Documents containing information specified in Part I of Form S-8 will be sent or
given to eligible employees and consultants as required by Rule 428(b)(1). Such
documents and documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Part II, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act of 1933, as
amended. All such documents will be dated and maintained in a "prospectus file"
as required by Rule 428(a) and will contain the following legend in a
conspicuous place as directed by Rule 428(b)(1):
This document (or specifically designated portions of this document)
constitutes (constitute) part of a prospectus covering securities that
have been registered under the Securities Act of 1933.
2
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3: INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Avitar, Inc. (the "Registrant") with the
Commission are incorporated in and made a part of this Registration Statement by
reference, except to the extent that any statement or information therein is
modified, superseded or replaced by a statement or information contained in any
other subsequently filed document incorporated herein by reference: (1) the
Registrant's Annual Report on Form 10-KSB for the fiscal year ended September
30, 1996; (2) the Registrant's Current Reports on Form 8-K dated February 4,
1997, March 12, 1997, March 20, 1997, April 1, 1997 and April 23, 1997; (3) the
Registrant's Quarterly Reports on Form 10-QSB for the quarter ended December 31,
1996; and (4) from the date of filing of such documents, all documents filed by
the Registrant with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, as amended ("Exchange Act") subsequent
to 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 hereby have been sold or which deregisters all securities
then remaining unsold.
ITEM 4: DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5: INTEREST OF NAMED EXPERTS AND COUNSEL
The Company's counsel, Dolgenos Newman & Cronin LLP ("DNC") shall receive
approximately 200,000 shares of the Company's Common Stock pursuant to the Plan
in satisfaction of certain obligations of the Company owing to DNC for legal
services rendered not in connection with the offer or sale of securities in a
capital-raising transaction. In addition, approximately 100,000 additional
shares are being registered hereunder for satisfaction of legal services to be
rendered by DNC.
ITEM 6: INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section Seven of the Registrant's Certificate of Incorporation, as amended,
provides that the Registrant shall indemnify its officers, directors, employees
and agents to the fullest extent permitted by Delaware General Corporation Law
(the "DGCL"). Section 145 of the DGCL, the relevant indemnification provision of
the DGCL, provides as follows:
(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 an 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 director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses
3
<PAGE>
(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.
(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
4
<PAGE>
(a) and (b) of this section. Such determination shall be made (1) by a majority
vote of the directors who are not parties to such action, suit or proceeding
even though less than a quorum, or, (2) if there are no such directors or if
such directors so direct, by independent legal counsel in a written opinion, or
(3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative 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 (including attorneys' fees) 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 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
5
<PAGE>
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 interests of the participants 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).
In accordance with Section 102(b)(7) of the DGCL, Section Seven of the
Certificate of Incorporation, as amended, of the Registrant eliminates the
personal liability of the Registrant's directors to the Registrant, or its
stockholders for monetary damages for breach of their fiduciary duties as a
director, except for liability (I) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for payments of unlawful dividends or unlawful stock repurchases or
redemptions, or (iv) for any transaction from which the director derived an
improper personal benefit.
ITEM 7: EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8: EXHIBITS
6
<PAGE>
Exhibit No.
5.1 Opinion of Dolgenos Newman & Cronin LLP re legality
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Dolgenos Newman & Cronin LLP
ITEM 9: UNDERTAKINGS
The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made of the
securities registered hereby, 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, as amended (the "1933 Act");
(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 this Registration Statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement; provided,
however, that the undertakings set forth in paragraphs (1)(i) and (1)(ii) above
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
Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934, as amended (the "1934 Act") that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the 1933 Act, 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.
(4) That, for the purposes of determining any liability under the 1933 Act, each
filing of the Company's annual report pursuant to Section 13(a) or Section 15(d)
of the 1934 Act that is incorporated by reference in the Registration Statement
shall be
7
<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.
(5) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the Prospectus, to each person to whom the Prospectus is sent or
given, the latest annual report to stockholders that is incorporated by
reference in the Prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the 1934 Act; and, where interim
financial information required to be presented by Article 3 of Regulation S-X is
not set forth in the Prospectus, to deliver, or cause to be delivered to each
person to whom the Prospectus is sent or given, the latest quarterly report that
is specifically incorporated by reference in the Prospectus to provide such
interim financial information.
(6) Insofar as indemnification for liabilities arising under the 1933 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 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 whether
such indemnification by it is against public policy as expressed in the 1933 Act
and will be governed by the final adjudication of such issue.
8
<PAGE>
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 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 Wallingford, State of Connecticut, on this 5th day of
May 1997.
AVITAR, INC.
By:/s/ Peter P. Phildius
Name: Peter P. Phildius
Title: Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
/S/ PETER P. PHILDIUS Chairman of the Board May 5, 1997
- - --------------------- and Chief Executive
Peter P. Phildius Officer (Principal
Executive Officer)
/S/ DOUGLAS W. SCOTT President and Chief May 5, 1997
- - -------------------- Operating Officer;
Douglas W. Scott Director
/S/ GEORGE WITT, PH.D. Director May 5, 1997
- - ---------------------
George Witt, Ph.D.
/S/ JAMES GROTH Director May 5, 1997
- - --------------------
James Groth
/S/ JAY LEATHERMAN Controller, Secretary, May 5, 1997
- - ------------------ and Chief Financial and
Jay Leatherman Accounting Officer,
(Principal Accounting
and Financial Officer)
9
<PAGE>
EXHIBIT INDEX
Exhibit No.
5.1 Opinion of Dolgenos Newman & Cronin LLP re legality
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Dolgenos Newman & Cronin LLP (contained in the opinion filed
as Exhibit 5.1)
10
Exhibit 5.1
Opinion re legality of
Dolgenos Newman & Cronin LLP
11
<PAGE>
EXHIBIT 5.1
Dolgenos Newman & Cronin LLP
-------------------------------------------------
96 Spring Street, New York, N.Y. 10012
212-925 2800 Fax 212-925-0690
May 5, 1997
Avitar, Inc.
556 Washington Avenue, Suite 202
North Haven, Connecticut 06473
Tel.: (203) 234-7737
Gentlemen:
We have acted as counsel to Avitar, Inc., a Delaware corporation (the
"Company"), in connection with the Company's proposed offering of 1,400,000
shares of Common Stock, $0.01 par value as described in that certain
Registration Statement (and the related Prospectus) on Form S-8 executed today
by the Company and to be filed with the Securities and Exchange Commission on
May 9, 1997 (as amended, the "Registration Statement" and "Prospectus").
In rendering this opinion we have examined copies of the Registration Statement;
the Company's Certificate of Incorporation, as amended, and such other
instruments, certificates and documents as we have deemed necessary or
appropriate for the purpose of rendering this opinion.
In such examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
original documents submitted to us as copies. We have further assumed for the
purpose of this opinion the due authorization and, as applicable, the due
execution and delivery by, or on behalf of, each of the parties thereto of the
above-referenced documents and all documents contemplated by the Registration
Statement to be executed.
Based on and subject to the foregoing, and limited in all respects to matters of
New York law and the General Corporation Law of the State of Delaware, we are of
the opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Delaware.
12
<PAGE>
Avitar, Inc.
May 5, 1997
Page 2
2. The Company has authorized capitalization of thirty million
shares, of which twenty-five million (25,000,000) shares are
Common Stock, $0.01 par value, and five million (5,000,000)
shares are Preferred Stock, $0.001 par value.
3. As of the date hereof, 12,077,195 shares of Common Stock
have been duly and validly issued and are fully paid
and non-assessable.
4. The shares of Common Stock included in the Registration
Statement will, when issued in accordance with the terms and
procedures set forth in the Registration Statement, constitute
legally and validly issued, fully paid and non-assessable
shares of Common Stock.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
DOLGENOS NEWMAN & CRONIN LLP
By: /s/EUGENE M. CRONIN
13
Exhibit 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
14
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
Avitar, Inc.
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated November
15, 1996, relating to the consolidated financial statements of Avitar, Inc.
appearing in the Company's Annual Report on Form 10-KSB for the year ended
September 30, 1996. Our report contains an explanatory paragraph expressing
substantial doubt about the Company's ability to continue as a going concern.
BDO Seidman, LLP
/s/ BDO SEIDMAN, LLP
New York, New York
May 8, 1997
15
