As filed with the Securities and Exchange Commission on January 16, 1998.
Registration No. 333-_______
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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U.S. HOME & GARDEN INC.
(Exact name of registrant as specified in its charter)
Delaware 77-0262908
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
655 Montgomery Street, Suite 830, San Francisco, CA 94111
(Address of principal executive offices) (Zip Code)
Non-Employee Director Stock Option Plan
(Full title of the plan)
Mr. Robert Kassel, President, U.S. Home & Garden Inc.
655 Montgomery Street, Suite 830, San Francisco CA 94111
(Name and address of agent for service)
(415) 616-8111
(Telephone number, including area code, of agent for service)
Copy to:
Robert J. Mittman, Esq.
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Telephone: (212) 885-5000
Facsimile: (212) 885-5001
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Amount to Price Per Offering Registra-
to be Registered be Registered Share(1) Price(1) tion Fee
- ---------------- ------------- -------- -------- --------
<S> <C> <C> <C> <C>
Common Stock, par 100,000 shares $3.87 $387,000 $114.17
value $.001 per share(2)
</TABLE>
(1) Estimated solely for the purposes of calculating the registration fee
and based (a) as to the 30,000 shares of Common Stock issuable upon the exercise
of options already granted under the registrant's Non-Employee Director Stock
Option Plan ("Plan"), upon the average price at which such options may be
exercised and (b) as to the remaining 70,000 shares of Common Stock issuable
upon exercise of options reserved for issuance under the Plan, on the basis of
the average of the high and low prices for the Common Stock as quoted on NASDAQ
on January 12, 1998.
(2) Pursuant to Rule 416, there are also being registered additional shares
of Common Stock as may become issuable pursuant to the anti-dilution provisions
of the Plan.
- 2 -
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
- 3 -
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
(1) The registrant's Annual Report on Form 10-K for the fiscal year ended
June 30, 1997;
(2) Form 10-K/A Amendment No. 1 to the registrant's Annual Report on Form
10-K for the fiscal year ended June 30, 1997;
(3) Form 10-K/A, Amendment No. 2 to the registrant's Annual Report on Form
10-K for the fiscal year ended June 30, 1997;
(4) The registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997;
(5) The description of the registrant's common stock, par value $.001 per
share (the "Common Stock"), contained in the registrant's Registration Statement
on Form 8-A filed with the Commission on March 4, 1992, and any amendments
thereto; and
(6) 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 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 respective date of filing of such documents. Any
statement contained in a document incorporated by reference herein is modified
or superseded for all purposes to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document which is
incorporated by reference modifies or replaces such statement.
Item 4. Description of Securities.
Not applicable.
II-1
<PAGE>
Item 5. Interests of Named Experts and Counsel.
The legality of the Common Stock offered hereby will be passed upon for the
registrant by the law firm of Tenzer Greenblatt LLP. A partner of Tenzer
Greenblatt LLP is the beneficial owner of shares of Common Stock and options and
warrants to purchase shares of Common Stock. Certain other partners of Tenzer
Greenblatt LLP also own shares of Common Stock and/or options to purchase Common
Stock.
Item 6. Indemnification of Directors and Officers.
Sections 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers and directors under certain
circumstances against expenses incurred in successfully defending against a
claim and authorizes Delaware corporations to indemnify their officers and
directors under certain circumstances against expenses and liabilities incurred
in legal proceedings involving such persons because of their being or having
been an officer or director.
Section 102(b) of the Delaware General Corporation Law permits a
corporation, by so providing in its certificate of incorporation, to eliminate
or limit director's liability to the corporation and its stockholders for
monetary damages arising out of certain alleged breaches of their fiduciary
duty. Section 102(b)(7) provides that no such limitation of liability may affect
a director's liability with respect to any of the following: (i) breaches of the
director's duty of loyalty to the corporation or its stockholders; (ii) acts or
omissions not made in good faith or which involve intentional misconduct of
knowing violations of law; (iii) liability for dividends paid or stock
repurchased or redeemed in violation of the Delaware General Corporation Law; or
(iv) any transaction from which the director derived an improper personal
benefit. Section 102(b)(7) does not authorize any limitation on the ability of
the corporation or its stockholders to obtain injunctive relief, specific
performance or other equitable relief against directors.
Article Ninth of the registrant's Certificate of Incorporation and Article
XVIII of the registrant's By-laws provide that all persons who the registrant is
empowered to indemnify pursuant to the provisions of Section 145 of the General
Corporation Law of the State of Delaware (or any similar provision or provisions
of applicable law at the time in effect), shall be indemnified by the registrant
to the full extent permitted thereby. The foregoing right of indemnification
shall not be deemed to be exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors, or otherwise.
II-2
<PAGE>
Article Tenth of the registrant's Certificate of Incorporation provides
that no director of the registrant shall be personally liable to the registrant
or its stockholders for any monetary damages for breaches of fiduciary duty as a
director, provided that this provision shall not eliminate or limit the
liability of a director (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)
under Section 174 of the General Corporation Law of the State of Delaware; or
(iv) for any transaction from which the director derived an improper personal
benefit.
Sections 7 and 8 of the Underwriting Agreement dated March 26, 1992 between
the registrant and the underwriter of the registrant's initial public offering
and Sections 6 and 7 of the Underwriting Agreement dated August 5, 1993 between
the registrant and the underwriter of the registrant's 1993 public offering, and
Section 7 of the Underwriting Agreement dated December 10, 1997 between the
registrant and certain selling stockholders and the representatives of the
underwriters of the registrant's 1997 public offering, provides for the
indemnification of the registrant's officers, directors and control persons
under certain circumstances.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
----------- -----------
4.1 Non-Employee Director Stock Option Plan of the
registrant (the "Plan")*
5.1 Opinion of Tenzer Greenblatt LLP
23 Consent of BDO Seidman, LLP
- --------
* Incorporated by reference to exhibit 10.5 filed with the registrant's Form
10-KSB for the fiscal year ended June 30, 1995.
II-3
<PAGE>
23.1 Consent of Tenzer Greenblatt LLP (included in Exhibit
5.1)
24.1 Powers of Attorney (included on Page II-6 of this
Registration Statement)
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:
(2) 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.
(3) 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.
(4) 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 reference in the registration
statement 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) 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 referred to in Item 6 of Part II of this Registration
Statement, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange
II-4
<PAGE>
Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 ("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.
II-5
<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 San Francisco, State of California, on this 14th day
of January, 1998.
U.S. HOME & GARDEN INC.
--------------------------------
(Registrant)
By: /s/Robert Kassel
----------------------------
Robert Kassel, President
Each person whose individual signature appears below hereby authorizes each
of Robert Kassel and Richard Raleigh or either of them as his or her true and
lawful attorney-in-fact with full power of substitution to execute in the name
and on behalf of each person, individually and in each capacity stated below,
and to file, any and all post-effective amendments to this Registration
Statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/Robert Kassel Chairman of the Board, January 14, 1998
- ------------------- President, Chief Executive
Robert Kassel Officer and Treasurer
(Principal Executive and
Financial Officer)
/s/Richard Raleigh Chief Operating Officer January 14, 1998
- ------------------- and Director
Richard Raleigh
/s/Maureen Kassel Vice President, January 14, 1998
- ------------------- Secretary and Director
Maureen Kassel
/s/Lynda Gustafson Vice President of January 14, 1998
- ------------------- Finance (Principal
Lynda Gustafson Accounting Officer)
/s/Fred Heiden Director January 14, 1998
- -------------------
Fred Heiden
/s/Jon Schulberg Director January 14, 1998
- -------------------
Jon Schulberg
II-6
<PAGE>
Exhibit Index
Exhibit No.
Page Description
---- -----------
4.1 Non-Employee Director Stock Option Plan of the
registrant*
5.1 Opinion of Tenzer Greenblatt LLP
23 Consent of BDO Seidman LLP
23.1 Consent of Tenzer Greenblatt LLP
(included in Exhibit 5.1)
24.1 Powers of Attorney (included on Page II-6 of the
Registration Statement)
- -----------
* Incorporated by reference to exhibit 10.5 filed with the registrant's Form
10-KSB for the fiscal year ended June 30, 1995.
January 14, 1998
U.S. Home & Garden Inc.
655 Montgomery Street
San Francisco, CA 94111
Gentlemen:
You have requested our opinion with respect to the offering by you, U.S.
Home & Garden Inc., a Delaware corporation (the "Company"), pursuant to the
provisions of the Company's Non-Employee Director Stock Option Plan (the "Plan")
and a Registration Statement (the "Registration Statement") on Form S- 8, under
the Securities Act of 1933, as amended (the "Act"), of up to 100,000 shares (the
"Shares") of Common Stock, par value $.001 per share, of the Company (the
"Common Stock").
We have examined originals, or copies certified or otherwise identified to
our satisfaction, of such documents and corporate and public records as we deem
necessary as a basis for the opinion hereinafter expressed. With respect to such
examination, we have assumed the genuineness of all signatures appearing on all
documents presented to us as originals, and the conformity to the originals of
all documents presented to us as conformed or reproduced copies. Where factual
matters relevant to such opinion were not independently established, we have
relied upon certificates of appropriate state and local officials, and upon
certificates of executive officers and responsible employees and agents of the
Company.
Based upon the foregoing, it is our opinion that the Shares have been duly
and validly authorized and, when sold, paid for and issued as contemplated by
the Plan and the Registration Statement, will be duly and validly issued, fully
paid and nonassessable.
<PAGE>
U.S. Home & Garden Inc.
January 14, 1998
Page 2
Please be advised that certain partners of this firm are the beneficial
owners of shares of Common Stock and options and warrants to purchase shares of
Common Stock.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement, and to the use of our name as your counsel in connection
with the Registration Statement. In giving this consent, we do not thereby
concede that we come within the categories of persons whose consent is required
by the Act or the General Rules and Regulations promulgated thereunder.
Very truly yours,
/s/ TENZER GREENBLATT LLP
--------------------------------
TENZER GREENBLATT LL
EXHIBIT 23
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
U.S. Home & Garden Inc.
San Francisco, California
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated August 1, 1997, except for Note 15
which is dated as of September 15, 1997, relating to the consolidated financial
statements and schedule of U.S. Home & Garden Inc. appearing in the Company's
Annual Report on Form 10-K for the fiscal year ended June 30, 1997.
/s/ BDO Seidman, LLP
-------------------------
BDO Seidman, LLP
San Francisco, California
January 14, 1998
