As filed with the Securities and Exchange Commission on July 12, 2000.
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
of incorporation or organization) Identification No.)
655 Montgomery Street, Suite 500, San Francisco, CA 94111
(Address of principal executive offices) (Zip Code)
1995, 1997 and 1999 Stock Option Plans and Certain Non-Plan Options _
(Full title of the plan)
Mr. Robert Kassel, President, U.S. Home & Garden Inc.
655 Montgomery Street, Suite 500, 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.
Blank Rome 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
Title of Securities Amount to Price Per Offering Amount of
to be Registered be Registered Share(1) Price(1) Registra-tion Fee
---------------- ------------- --------- -------- -----------------
<S> <C> <C> <C> <C>
Common Stock, par value $.001 per share 3,900,000 shares (2)(3) $2.74 10,686,000 $2,821.00
Common Stock, par value $.001 per share 2,266,871 shares (2)(4) $2.59 $5,871,196 $1,550.10
--------
Total Fee $4,371.10
</TABLE>
(1) Estimated solely for the purposes of calculating the registration fee
and based (a) as to the 2,967,500 shares of Common Stock that may be issued upon
the exercise of options already granted under either the registrant's 1995 Stock
Option Plan ("95 Plan"), or the registrant's 1997 Stock Option Plan ("97 Plan")
or the registrant's 1999 Stock Option Plan ("99 Plan") or the 2,266,871 non-plan
options, upon the average price at which such options may be exercised and (b)
as to the remaining 932,500 shares of Common Stock that may be issued upon
exercise of options reserved for issuance under the 95 Plan, the 97 Plan and the
99 Plan, on the basis of the average of the high and low prices for the Common
Stock as quoted on NASDAQ on July 6, 2000.
(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 95 Plan, the 97 Plan and the 99 Plan and the non-plan options referred to
in footnote (4) below.
(3) Represents 1,500,000, 1,500,000 and 900,000 shares, respectively, that
may be issued upon exercise of options granted or to be granted under the 95
Plan, the 97 Plan, and the 99 Plan, respectively.
(4) Represents 2,266,871 shares that may be issued upon exercise of
non-plan options granted to certain employees of the registrant or its
wholly-owned subsidiaries or certain consultants to the registrant pursuant to
stock option agreements.
<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.
<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, 1999;
(2) The registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999;
(3) The registrant's Quarterly Report on Form 10-Q for the Quarter ended
December 31, 1999;
(4) The registrant's Quarterly Report on Form 10-Q for the Quarter ended
March 31, 2000;
(5) The description of the registrant's common stock, par value $.001 per
share (the "Common Stock"), contained in the registrant's Registration
Statements on Form 8-A filed with the Commission on March 4, 1992 and April 7,
1999, 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.
II-1
<PAGE>
Item 4. Description of Securities.
Not applicable.
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 Blank Rome Tenzer Greenblatt LLP. Certain partners
of Blank Rome Tenzer Greenblatt LLP are the beneficial owner of shares of Common
Stock and options and warrants to purchase shares of 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.
II-2
<PAGE>
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.
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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
5.1 Opinion of Blank Rome Tenzer Greenblatt LLP
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Blank Rome Tenzer Greenblatt LLP
(included in Exhibit 5.1)
24.1 Powers of Attorney (included on Page II-6 of this
Registration Statement)
II-3
<PAGE>
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
II-4
<PAGE>
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 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 6th day
of July 2000.
U.S. HOME & GARDEN INC.
-----------------------------------
(Registrant)
By: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, July 6, 2000
---------------------- President, Chief Executive
Robert Kassel Officer and Treasurer
(Principal Executive and
Financial Officer)
/s/ Richard Raleigh Chief Operating Officer July 6, 2000
---------------------- and Director
Richard Raleigh
/s/ Maureen Kassel Vice President, July 6, 2000
---------------------- Secretary and Director
Maureen Kassel
II-6
<PAGE>
/s/ Donald Rutishauser Chief Financial Officer July 6, 2000
---------------------- (Principal Accounting Officer)
Donald Rutishauser
/s/ Fred Heiden Director July 6, 2000
----------------------
Fred Heiden
/s/ Jon Schulberg Director July 6, 2000
----------------------
Jon Schulberg
II-7
<PAGE>
Exhibit Index
Exhibit No. Description
----------- -----------
Page
5.1 Opinion of Blank Rome Tenzer
Greenblatt LLP
23.1 Consent of BDO Seidman LLP
23.2 Consent of Blank Rome Tenzer
Greenblatt LLP (included in
Exhibit 5.1)
24.1 Powers of Attorney (included
on Page II-6 of the
Registration Statement)
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