As filed with the Securities and Exchange Commission on August 27, 1999
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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AVITAR, INC.
(Exact name of registrant as specified in its charter)
Delaware 06-1174053
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
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65 Dan Road
Canton, Massachusetts 02021
(781) 821-2440
(Address of Principal Executive Office)
Avitar Stock Option Plans
And
Avitar Stock Warrants
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(Full Title of the Plan)
PETER P. PHILDIUS
65 Dan Road
Canton, Massachusetts 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
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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 Price Fee
Common Stock 480,000 $1.36 $ 652,800 $181.48
Common Stock 66,823 $0.59 $ 39,426 $ 10.96
Common Stock 30,000 $0.53 $ 15,900 $ 4.42
Common Stock 20,000 $0.38 $ 7,600 $ 2.11
Common Stock 2,401,700 $0.345 $ 828,587 $230.35
Common Stock 50,000 $0.28 $ 14,000 $ 3.89
Common Stock 1,100,000 $0.25 $ 275,000 $ 76.45
Common Stock 458,600 $0.20 $ 91,720 $ 25.50
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$535.16
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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.
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
another subsequently filed document incorporated herein by reference: (1) the
Registrant's Annual Report on Form 10-KSB for the fiscal year ended September
30, 1998; (2) the Registrant's Current Report on Form 8-K dated July 14, 1999;
(3) the Registrant's Quarterly Reports on Form 10-QSB for the quarters ending
December 31, 1998, March 31, 1999 and June 30, 1999; 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 de-registers all securities then remaining unsold.
ITEM 4: DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5: INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
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:
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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 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 (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 (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.
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(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 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
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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
Exhibit No.
5.1 Opinion of Dolgenos Newman & Cronin LLP
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 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.
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, as amended (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.
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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 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 Canton, Commonwealth of Massachusetts, on this 24th
day of August 1999.
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 8/24/99
- - - --------------------- and Chief Executive
Peter P. Phildius Officer (Principal
Executive Officer)
/s/ Douglas W. Scott President and Chief 8/24/99
- - - -------------------- Operating Officer;
Douglas W. Scott Director
/s/ Neil R. Gordon Director 8/25/99
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Neil R. Gordon
/s/ James Groth Director 8/25/99
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James Groth
/s/ Charles R. McCarthy,Jr. Director 8/27/99
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Charles R. McCarthy, Jr.
/s/ Jay Leatherman Controller, Secretary, 8/24/99
- - - ------------------ and Chief Financial and
Jay Leatherman Accounting Officer,
(Principal Accounting
and Financial Officer)
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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)
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EXHIBIT 5.1
Dolgenos Newman & Cronin LLP
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96 Spring Street, New York, N.Y. 10012
Tel 212-925-2800 Fax 212-925-0690
August 27, 1999
Avitar, Inc.
65 Dan Road
Canton, Massachusetts 02021
Re: Avitar Stock Option Plans and Warrants
Gentlemen:
We have acted as counsel to Avitar, Inc. (the "Company") in connection
with the registration with the Securities and Exchange Commission on Form S-8 of
shares of Avitar's common stock, par value $0.01 (the "Shares"), which may be
issued in connection with the above-referenced plans (the "Plans"). In
connection with that registration, we have reviewed the proceedings of the Board
of Directors of the Company relating to the registration and proposed issuance
of the Shares, the Certificate of Incorporation of the Company and all
amendments thereto, the Bylaws of the Company and all amendments thereto, and
such other documents and matters as we have deemed necessary to the rendering of
the following opinion.
Based upon that review, it is our opinion that the Shares when issued
in conformance with the terms and conditions of the Plans, will be legally
issued, fully paid and nonassessable under the Delaware General Corporation Law.
We consent to the use of this opinion in the registration statement
filed with the Securities and Exchange Commission in connection with the
registration of the Shares.
Very truly yours,
DOLGENOS NEWMAN & CRONIN LLP
By /s/ Eugene M. Cronin
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Avitar, Inc.
Canton, Massachusetts
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated December
23, 1998, 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, 1998.
/s/ BDO Seidman, LLP
Boston, Massachusetts
August 25, 1999
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