As filed with the Securities and Exchange Commission on May 13, 1999
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SEMX CORPORATION
----------------
(Exact name of Registrant as specified in its character)
DELAWARE 13-3584740
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1 Labriola Court, Armonk, New York 10504-1336
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(Address of Principal Executive Office)
AMENDED EMPLOYEES' INCENTIVE STOCK OPTION PLAN
NON-QUALIFIED INCENTIVE STOCK OPTION PLAN
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(Full Title of Plans)
Mark A. Koch
------------------------
Controller and Secretary
SEMX Corporation
1 Labriola Court
Armonk, New York 10504-1336
(914) 273-5500
------------------------------------------------------
(Name, address including zip code and telephone number,
including area code, of agent for service)
A copy of all communications,
including communications sent to
the agent of service should be sent to:
Alan M. Rashes, Esq.
Salon, Marrow & Dyckman, LLP
685 Third Avenue
New York, New York 10017
(212) 661-7100
----------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Each Maximum Maximum
Class of Offering Aggregate Amount of
Securities to Amount to be Price Offering Registration
be Registered Registered Per Share Price Fee
------------- ---------- --------- --------- ------------
<S> <C> <C> <C> <C>
Stock Options 300,000(l) - - -(3)
200,000(2) - - -(3)
Common Stock 300,000(4) (6) $2.34(7) $703,125 $195
200,000(5) (6) $2.34(7) $468,750 $131
----
Total $326
====
</TABLE>
(1) Represents options to be granted pursuant to the Amended Employees'
Incentive Stock Option Plan (the "Incentive Plan"). Options to purchase 250,000
shares of Common Stock granted pursuant to the Incentive Plan were previously
registered pursuant to the Registrant's Registration Statement on Form S-8 (File
No. 33-84752) filed with the Commission on October 6, 1994. Options to purchase
150,000 shares of Common Stock granted pursuant to the Incentive Plan were
previously registered pursuant to Registrant's Registration Statement on Form
S-8 (File No. 33-95762) filed with the Commission on August 14, 1995. Options to
purchase an additional 200,000 shares of Common Stock granted pursuant to the
Incentive Plan were previously registered pursuant to the Registrant's
Registration Statement on Form S-8 (File No. 333-7797) filed with the Commission
on July 9, 1996.
(2) Represents options to be granted pursuant to the Non-Qualified Stock Option
Plan (the "Non-Qualified Plan"). Options to purchase 100,000 shares of Common
Stock granted pursuant to the Non-Qualified Plan were previously registered
pursuant to Registrant's Registration Statement on Form S-8 (File No. 33-95762)
filed with the Commission on August 14, 1995.
(3) No registration fee is required pursuant to Rule 457(h)(2).
(4) Shares issuable upon exercise of options granted pursuant to the Incentive
Plan.
(5) Shares issuable upon exercise of options granted pursuant to the
Non-Qualified Plan.
(6) Includes an indeterminable number of shares of Common Stock which may become
issuable pursuant to the anti-dilution provision of the Plans and the
anti-dilution provisions contained in the Stock Option Agreements.
(7) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457 (c) based upon the average of the high and low prices for
the Common Stock on the NASDAQ National Marketplace on May 10, 1999.
2
<PAGE>
Introduction
Amended Employees' Incentive Stock Option Plan. On April 28, 1998, the
stockholders of the Registrant approved a 300,000 share increase in the number
of shares of Common Stock reserved under the Amended Employees' Incentive Stock
Option Plan (the "Incentive Plan"). The instant Registration Statement registers
the additional 300,000 shares of Common Stock which are reserved for issuance
under the Incentive Plan.
Non-Qualified Incentive Stock Option Plan. On April 28, 1998, the
stockholders of the Registrant approved a 200,000 share increase in the number
of shares of Common Stock reserved under the Non-Qualified Incentive Stock
Option Plan (the "Non-Qualified Plan"). The instant Registration Statement
registers the additional 200,000 shares of Common Stock which are reserved for
issuance under the Non-Qualified Plan.
Incorporation by Reference
On October 6, 1994, a Form S-8 Registration Statement (33-84752)
registering 250,000 shares of Common Stock, reserved for issuance upon the
exercise of options pursuant to the Incentive Plan, was filed with the
Securities and Exchange Commission (the "Commission") and became effective. On
August 14, 1995, a Form S-8 Registration Statement (33-95762) registering an
additional 150,000 shares of Common Stock, reserved for issuance upon the
exercise of options pursuant to the Incentive Plan, was filed with the
Commission and became effective. On July 9, 1996, a Form S-8 Registration
Statement (333-7797) registering an additional 200,000 shares of Common Stock,
reserved for issuance upon the exercise of options pursuant to the Incentive
Plan, was filed with the Commission and became effective.
On August 14, 1995, a Form S-8 Registration Statement (33-95762)
registering 100,000 shares of Common Stock reserved for issuance upon the
exercise of options pursuant to the Non-Qualified Plan was filed with the
Commission and became effective.
The contents of Registration Statements Nos. 33-84752, 33-95762 and
333-7797 are hereby incorporated by reference.
Amendment to the Non-Qualified Plan
In addition to approving the increase of 200,000 shares of Common Stock
reserved for issuance under the Non-Qualified Plan, the stockholders also
approved an amendment to the Non-Qualified Plan which provides for the grant of
non-qualified options to employees of the Company or any subsidiary thereof.
3
<PAGE>
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 the registrant, SEMX Corporation, a Delaware
corporation (the "Company"), pursuant to the Securities Act of 1933, as amended
(the "Securities Act"), and the Securities Exchange Act of 1933, as amended (the
"Exchange Act"), are incorporated by reference in this registration statement:
(1) The Company's Annual Report on Form 10-K for the year ended December 31,
1998;
(2) Portions of the Company's Proxy Statement dated April 28, 1999 which
contain information required by Items 9, 10, 11 and 12 of Form 10-K which were
incorporated by reference in the Form 10-K; and
(3) The description of the Company's Common Stock, par value $.10 per share
(the "Common Stock") contained in the Company's Registration Statement on Form
8-A (File No. 1-10938), filed pursuant to Section 12(b) of the Exchange Act,
including any amendment or report filed for the purpose of updating such
information.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such 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. Interests of Named Experts and Counsel.
Not applicable.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law ("DGCL"), directors
and officers may be indemnified against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation -- a
"derivative action") if they acted in good faith and in a manner they 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 their conduct was unlawful. A similar standard of care is applicable in
the case of derivative actions, except that indemnification only extends to
expenses (including attorneys' fees) incurred in connection with the defense or
settlement of such an action. Moreover, the DGCL requires court approval before
there can be any indemnification where the person seeking indemnification has
been found liable to the corporation. The statute provides that indemnification
pursuant to its provisions is not exclusive of other rights of indemnification
to which a person may be entitled under the Company's Certificate of
Incorporation, or any by-law, agreement, vote of stockholders or disinterested
directors, or otherwise.
ARTICLE VII of the By-laws of the Company states as follows:
SECTION 7.1 Indemnification. The Corporation shall indemnify, in the
manner and to the full extent permitted by law, any person (or the estate
of any person) who was or is a party to, or is threatened to be made a
party to, any threatened, pending or completed action, suit or
proceeding, whether or not by or in the right of the Corporation, and
whether civil, criminal, administrative, investigative, or otherwise, by
reason of the fact that such person is or was a director, officer,
employee, fiduciary or agent of the Corporation, or is or was serving at
the request of another corporation, partnership, joint venture, trust or
other enterprise. Unless otherwise permitted by law, the indemnification
provided for herein shall be made only as authorized in the specific case
upon a determination, in the manner provided by law, that indemnification
of the director, officer, employee or agent is proper in the
circumstances. The Corporation may, to the full extent permitted by law,
purchase and maintain insurance on behalf of any such person against any
liability which may be asserted against him or her. To the full extent
permitted by law, the indemnification provided herein shall include
expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement, and, in the manner provided by law, any such expenses may
be paid
II-2
<PAGE>
by the Corporation in advance of the final disposition of such action,
suit or proceeding. The indemnification provided herein shall not be
deemed to limit the right of the Corporation to indemnify any other
person for any such expenses to the full extent permitted by law, nor
shall it be deemed exclusive of any other rights to which any person
seeking indemnification from the Corporation may be entitled under any
agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in
another capacity while holding such office.
Pursuant to Section 145 of the DGCL, Registrant has purchased insurance
on behalf of its present and former directors and officers against any liability
asserted against or incurred by them in such capacity or arising out of their
status as such.
ARTICLE SEVENTH of the Certificate of Incorporation of the Company
states as follows:
SEVENTH: Liability of Directors of the Corporation. A director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of his fiduciary duty as a
director, except for liability (i) for any breach of the director's duty
of loyalty to the Corporation or its stockholder, (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 any improper personal benefit. If the General
Corporation Law of the State of Delaware is amended after the date hereof
to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
II-3
<PAGE>
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Amended Employees' Incentive Stock Option
Plan, as amended.(1)
4.2 Non-Qualified Stock Option Plan. (2)
5.1 Opinion of Salon, Marrow & Dyckman, LLP.
23.1 Consent of Salon, Marrow & Dyckman, LLP
(included in Exhibit 5.1 hereto).
23.2 Consent of Goldstein Golub Kessler LLP
23.3 Power of Attorney (included on the
signature page of this Registration
Statement).
(1) Incorporated herein by reference to the Company's Registration Statement
No. 33-70876 on Form S-3 as filed with the Securities and Exchange Commission
on October 28, 1993, and as amended on December 30, 1993, January 20, 1994 and
February 7, 1994.
(2) Incorporated herein by reference to the Company's Proxy Statement dated
March 30, 1998.
Item 9. Required Undertakings.
The undersigned Registrant hereby undertakes:
(a) (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 in the
aggregate, represents a fundamental change in the information set forth in the
registration statement;
II-4
<PAGE>
(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 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 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 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 or controlling
persons of the Registrant pursuant to any arrangement, provision 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 and is, therefore, unenforceable. In the event
that 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
II-5
<PAGE>
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for the 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 Armonk, State of New York on May 12, 1999.
SEMX CORPORATION
By: /s/ Gilbert D. Raker By: /s/ Mark A. Koch
------------------------ --------------------
Gilbert D. Raker Mark A. Koch
Chairman of the Board Secretary and Accounting
and Chief Executive Officer Officer
(principal executive officer) (principal financial and
accounting officer)
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Gilbert D. Raker and Mark A. Koch, and each of them, his true and lawful
attorneys-in-fact and agents, with power of substitution and resubstitution, for
him and in his name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this registration
statement, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying all that said attorneys-in-fact and agents or his substitute or
substitutes, or any of them, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on May 12, 1999.
Signature Title
--------- -----
/s/ Gilbert Raker Chairman of the May 12, 1999
-------------------- Board, Chief
Gilbert D. Raker Executive Officer
and Director
(principal
executive officer)
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<PAGE>
Signature Title
--------- -----
Vice Chairman and
------------------- Director
Frank J. Polese
/s/ Mark A. Koch Secretary and May 12, 1999
------------------- Chief Accounting
Mark A. Koch Officer (principal
financial and
accounting
officer)
/s/ John U. Moorhead, II, Director May 12, 1999
-------------------------
John U. Moorhead, II
/s/ Steven B. Sands Director May 12, 1999
-------------------
Steven B. Sands
Director
-------------------
Richard D. Fain
/s/ Mark A. Pinto Director May 12, 1999
-------------------
Mark A. Pinto
/s/ Andrew Lozyniak Director May 12, 1999
-------------------
Andrew Lozyniak
II-8
Exhibit 23.1
[Letterhead of Salon, Marrow & Dyckman]
May 12, 1999
SEMX Corporation
1 Labriola Court
Armonk, New York 10504
Re: SEMX Corporation
S-8 Registration Statement
--------------------------
Gentlemen:
We have acted as counsel for SEMX Corporation (the "Company") in
connection with the preparation and filing of the Registration Statement on Form
S-8 registering an additional 300,000 shares reserved for issuance upon the
exercise of options granted pursuant to the Company's Amended Employees'
Incentive Stock Option Plan (the "Incentive Plan") and (ii) an additional
200,000 shares reserved for issuance upon the exercise of options granted
pursuant to the Company's Non-Qualified Stock Option Plan (the "Non-Qualified
Plan"). We are familiar with the proceedings by which the Incentive Plan and the
Non-Qualified Plan were amended and the shares of Common Stock have been
authorized and have reviewed and are familiar with the Certificate of
Incorporation, as amended, the By-Laws of the Company and such other corporate
records and documents as we have deemed necessary to express our opinion herein
stated. We have assumed the genuineness of all signatures and the authenticity
of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as originals,
<PAGE>
SEMX Corporation
May 6, 1999
Page 2
the conformity to original documents of all documents submitted to us as
certified or photostatic copies, and the authenticity of the original of such
latter documents.
Based upon the foregoing and having regard to legal
considerations we deem relevant, we are of the opinion that the shares of common
stock have been duly and validly authorized for issuance by the Company, and
when issued under the circumstances contemplated by the Incentive Plan and the
Non-Qualified Plan, will be legally issued, fully paid and non-assessable.
We hereby consent to the reference to our firm in the
Registration Statement and the Prospectus.
Very truly yours,
/s/ Salon, Marrow & Dyckman, LLP
--------------------------------
Salon, Marrow & Dyckman, LLP
INDEPENDENT AUDITOR'S CONSENT
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 5, 1999, except for Note 15,
as to which the date is February 19, 1999, on the financial statements of SEMX
Corporation and Subsidiaries included in the Annual Report on Form 10-K of SEMX
Corporation for the year ended December 31, 1998.
GOLDSTEIN GOLUB KESSLER LLP
New York, New York
May 13, 1999
