<PAGE>
As filed with the Securities and Exchange Commission on December 12, 1996
Registration No.333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------
REGISTRATION STATEMENT ON FORM S-8
UNDER THE SECURITIES ACT OF 1933
----------------------------------
ULTRAFEM, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0435037
(State or other jurisdiction of (I.R.S. Employer identification
incorporation or organization) Number)
500 FIFTH AVENUE, SUITE 3620
NEW YORK, NEW YORK 10110
(Address of Principal Executive Offices) (Zip Code)
----------------------------------
1990 STOCK OPTION PLAN OF ULTRAFEM, INC.
ULTRAFEM, INC. 1995 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
ULTRAFEM, INC. OPTIONS
(Full title of the plan)
----------------------------------
JOHN W. ANDERSEN GERALD ADLER, ESQ.
PRESIDENT AND CHIEF EXECUTIVE Shereff, Friedman, Hoffman
OFFICER & Goodman, LLP
ULTRAFEM, INC. 919 Third Avenue
500 FIFTH AVENUE, SUITE 3620 New York, New York 10022
NEW YORK, NEW YORK 10110 (212) 758-9500
(212) 575-5740
(Name, address and telephone number, including area code, of agents for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE (1)
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE AMOUNT OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED TO BE PER SHARE (2) PRICE FEE
REGISTERED
<S> <C> <C> <C> <C>
Common Stock, par value $.001 8,750 shares $4 $35,000 $10.61
Common Stock, par value $.001 574,862 shares $4.35 $2,500,649.70 $757.77
Common Stock, par value $.001 50,000 shares $6 $300,000 $90.91
Common Stock, par value $.001 563,194 shares $8 $4,505,552 $1,365.32
Common Stock, par value $.001 35,000 shares $10.50 $367,500 $111.36
Common Stock, par value $.001 15,000 shares $14.50 $217,500 $65.91
Common Stock, par value $.001 401,806 shares $20.75(3) $8,337,474.50 $2,526.51
Common Stock, par value $.001 20,000 shares $30 $600,000 $181.82
Common Stock, par value $.001 20,000 shares $35 $700,000 $212.12
Common Stock, par value $.001 20,000 shares $40 $800,000 $242.42
</TABLE>
(1) See Exhibit 99 for a schedule of securities being registered.
(2) Estimated in accordance with Rule 457(c) and (h) of the Securities Act
of 1933, as amended (the "Act"), solely for the purpose of calculation
of the registration fee.
(3) The price shown is the average high and low price for shares of the
shares of common stock, par value $.001 per share (the "Common
Stock"), of the Registrant on the Nasdaq National Market on December
9, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by Ultrafem, Inc., a Delaware
corporation (the "Registrant"), with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or the Securities Act of 1933, as amended (the "Securities Act") are
incorporated herein by reference:
(a) The latest prospectus filed pursuant to Rule 424(b) under the Act that
contains audited financial statements for the Registrant's latest fiscal
year for which such statements have been filed, which was filed November
15, 1996, File No. 333-11995.
(1) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1996 filed November 14, 1996, File No. 0-27576.
(2) The Registrant's Current Report on Form 8-K filed October 30, 1996.
(c) The description of the Registrant's Common Stock, par value $.001 per
share, which is contained in a registration statement filed under Section
12 of the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Section
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 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 date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
A partner of Shereff Friedman Hoffman & Goodman, LLP, counsel to the
Registrant, Martin Nussbaum, is a member of the Board of Directors of the
Company, and has received options to purchase shares of Common Stock (which
shares are being registered in this Registration Statement) under the Ultrafem,
Inc. 1995 Non-Employee Director Stock Option Plan which is attached as Exhibit
4.2 hereto.
II-1
<PAGE>
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The indemnification of officers and directors of the Company is governed by
Section 145 of the General Corporation Law of the State of Delaware (the "DGCL")
and the Restated Certificate of Incorporation. Among other things, the DGCL
permits indemnification of a director, officer, employee or agent in civil,
criminal, administrative or investigative actions, suits or proceedings (other
than an action by or in the right of the corporation) to which such person is a
party or is threatened to be made a party by reason of the fact of such
relationship with the corporation or the fact that such person is or was serving
in a similar capacity with another entity at the request of the corporation
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him if such person 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, if he had no reasonable cause to believe his conduct was unlawful.
No indemnification may be made in any such suit to any person adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which the action was brought determines that,
despite the adjudication of liability, such person is under all circumstances,
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper. Under the DGCL, to the extent that a director, officer,
employee or agent is successful, on the merits or otherwise, in the defense of
any action, suit or proceeding or any claim, issue or matter therein (whether or
not the suit is brought by or in the right of the corporation), he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him. In all cases in which indemnification is permitted (unless
ordered by a court), it may be made by the corporation only as authorized in the
specific case upon a determination that the applicable standard of conduct has
been met by the party to be indemnified. The determination must be made by a
majority vote of the directors who were not parties to the action, even though
less than a quorum, or, if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or by the
stockholders. The statute authorizes the corporation to pay expenses incurred by
an officer or director in advance of a final disposition of a proceeding upon
receipt of an undertaking by or on behalf of the person to whom the advance will
be made, to repay the advances if it shall ultimately be determined that he was
not entitled to indemnification. The DGCL provides that indemnification and
advances of expenses permitted thereunder are not to be exclusive of any rights
to which those seeking indemnification or advancement of expenses may be
entitled under any By-Law, agreement, vote of stockholders or disinterested
directors, or otherwise. The DGCL also authorizes the corporation to purchase
and maintain liability insurance on behalf of its directors, officers, employees
and agents regardless of whether the corporation would have the statutory power
to indemnify such persons against the liabilities insured.
The Restated Certificate of Incorporation of the Company (the
"Certificate") provides that no director of the Company shall be personally
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director except for liability (i) for any breach of the
director's duty of loyalty to the Company 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 paying a dividend or approving a stock repurchase in
violation of Section 174 of the DGCL, (iv) for any transaction from which the
director derived an improper personal benefit or (v) for any act or omission
occurring prior to the date when the provision became effective.
II-2
<PAGE>
The Certificate provides that directors, officers and others shall be
indemnified to the fullest extent authorized by the DGCL, as in effect (or, to
the extent indemnification is broadened, as it may be amended), against any and
all judgments, fines and amounts paid in settling or otherwise disposing of
threatened, pending or completed actions, suits or proceedings, whether civil,
criminal, administrative or investigative and expenses incurred by such person
in connection therewith. The Certificate further provides that, to the extent
permitted by law, expenses so incurred by any such person in defending a civil
or criminal action or proceeding shall, at his request, be paid by the Company
in advance of the final disposition of such action or proceeding.
The Certificate provides that the right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition shall not be exclusive of any other right which any person may have
or acquire under any statute, provision of the Certificate or Amended and
Restated By-Laws of the Company (the "By-Laws") or otherwise.
Pursuant to employment agreements with certain of its executive officers,
the Company has agreed to indemnify such executive officers (including their
respective heirs, executors and administrators) to the fullest extent permitted
by the DGCL against all expenses and liabilities reasonably incurred in
connection with or arising out of any action, suit or proceeding in which such
executive officer may be involved by reason of having been a director or officer
of the Company or any subsidiary thereof.
The Company has obtained directors and officers liability and company
reimbursement insurance which, among other things, (i) provides for payment on
behalf of its officers and directors against loss as defined in the policy
stemming from acts committed by directors and officers as such and (ii) provides
for reimbursement to the Company for such loss but only when the Company shall
be required or permitted to indemnify directors or officers for loss pursuant to
statutory or common law or pursuant to duly effective certificate of
incorporation or By-Law provisions. Coverage is afforded to the directors and
officers, the Company for reimbursement of the directors and officers and the
Company directly for securities related claims.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
Item 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
EXHIBIT NUMBER. DESCRIPTION.
4.1 1990 Stock Option Plan of Ultrafem, Inc. (incorporated by
reference to Exhibit 10.33 to Amendment No. 1 to Registration
Statement on Form S-1 (File No. 33-97960) filed with the
Securities and Exchange Commission on November 17, 1995)
4.2 Ultrafem, Inc. 1995 Stock Option Plan for Non-Employee Directors
(incorporated by reference to Exhibit 10.34 to Amendment No. 1 to
Registration Statement on Form S-1 (File No. 33-97960) filed with
the Securities and Exchange Commission on November 17, 1995)
II-3
<PAGE>
4.3 Amended and Restated Option Certificate and Agreement, dated
August 1, 1995 between John W. Andersen and Ultrafem, Inc.
(incorporated by reference to Exhibit 10.43 to Amendment No. 1 to
Registration Statement on Form S-1 (File No. 33-97960) filed with
the Securities and Exchange Commission on November 17, 1995)
4.4 Amended and Restated Option Certificate and Agreement, dated
August 1, 1995 between John W. Andersen and Ultrafem, Inc.
(incorporated by reference to Exhibit 10.44 to Amendment No. 1 to
Registration Statement on Form S-1 (File No. 33-97960) filed with
the Securities and Exchange Commission on November 17, 1995)
4.5 Option Certificate and Agreement, dated March 12, 1996, granted
by Ultrafem, Inc. to Rosalind Paaswell
5.1 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Shereff, Friedman, Hoffman & Goodman, LLP (contained
in Exhibit 5.1)
99 Schedule of Securities Registered on this Form S-8
Item 9. UNDERTAKINGS.
The undersigned small business issuer hereby undertakes that it will:
(1) file, during any period in which it offers or sell securities, a
post-effective amendment to this registration statement to:
(i) include any prospectus required by Section 10(a)(3) of the Act;
(ii) reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the
information set forth in the registration statement; and
(iii) include any additional or changed material information on
the plan of distribution;
(2) for determining liability under the Act, treat each post-effective
amendment as a new registration statement of the securities offered,
and the offering of such securities at that time to be the initial
bona fide offering.
(3) file a post-effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering.
(4) for purposes of determining any liability under the Act, treat the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the small business issuer pursuant to Rule
424(b)(1) or (4) or 497(h) under the Act as part of this registration
statement as of the time the Commission declared it effective; and
II-4
<PAGE>
(5) for the purpose of determining any liability under the Act, treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration
statement, and that offering of such securities at that time as the
initial bona fide offering of those securities.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the small business
issuer pursuant to the foregoing provisions, or otherwise, the small business
issuer 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 small business issuer of
expenses incurred or paid by a director, officer or controlling person of the
small business issuer in the successful defense of any action, suit or
proceeding) is asserted by such director, officer of controlling person in
connection with the securities being registered, the small business issuer 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 New York, State of New York on this 12th day of
December, 1996.
ULTRAFEM, INC.
By: /s/John W. Andersen
---------------------------------------
John W. Andersen
President, Chief Executive
Officer and Chairman of the Board of Directors
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned whose signature
appears below constitutes and appoints John W. Andersen and Dori M. Reap, and
each of them (with full power of each of them to act alone), his true and lawful
attorneys-in-fact, with full power of substitution and resubstitution for him or
her and on his or her behalf, and in his or her name, place and stead, in any
all capacities to execute and sign any and all amendments or post-effective
amendments to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection with them, including any
registration statement pursuant to Rule 462 under Securities Act of 1933, with
the Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact or any of them or their or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof and the
Registrant hereby confers like authority on its behalf.
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
SIGNATURE TITLES DATE
- --------- ------ ----
/s/John W. Andersen President, Chief Executive December 12, 1996
- ------------------------ Officer and Chairman of the
John W. Andersen Board of Directors
(Principal Executive Officer)
/s/Dori M. Reap Chief Financial Officer, December 12, 1996
- ------------------------ Secretary, and Senior
Dori M. Reap Vice President, Finance and
Administration
(Principal Financial &
Accounting Officer)
/s/Audrey Contente Executive Vice President December 12, 1996
- ------------------------ and Founder; Director
Audrey Contente
<PAGE>
SIGNATURE TITLES DATE
- --------- ------ ----
/s/Richard Cone Director December 12, 1996
- ------------------------
Richard Cone
/s/Joy Vida Jones Director December 12, 1996
- ------------------------
Joy Vida Jones
/s/Martin Nussbaum Director December 12, 1996
- ------------------------
Martin Nussbaum
/s/Charles D. Peebler, Jr. Director December 12, 1996
- ---------------------------
Charles D. Peebler, Jr.
/s/Barrie R. Zesiger Director December 12, 1996
- ---------------------------
Barrie R. Zesiger
<PAGE>
EXHIBIT 5.1
OPINION OF SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
December 12, 1996
Ultrafem, Inc.
500 Fifth Avenue, Suite 3620
New York, New York 10021
Ladies and Gentlemen:
On the date hereof, Ultrafem, Inc., a Delaware corporation (the
"Company"), intends to transmit for filing with the Securities and Exchange
Commission, a Registration Statement on Form S-8 (the "Registration Statement"),
relating to an aggregate of 1,708,612 shares (the "Shares") of common stock, par
value $.001 per share (the "Common Stock"), of the Company which may be offered
from time to time pursuant to the plans listed on Annex A hereto (collectively,
the "Plans"). This opinion is an exhibit to the Registration Statement.
We have at times acted as counsel to the Company with respect to
certain corporate and securities matters, and in such capacity we are familiar
with the various corporate and other proceedings taken by or on behalf of the
Company in connection with the proposed offer and sale of the Shares as
contemplated by the Registration Statement. We have examined copies (in each
case signed, certified or otherwise proven to our satisfaction to be genuine) of
the Company's Certificate of Incorporation as presently in effect, its By-Laws
as presently in effect, minutes and other instruments evidencing actions taken
by its directors and stockholders, the Plans and such other documents and
instruments relating to the Company and the proposed offering as we have deemed
necessary under the circumstances. Insofar as this opinion relates to
securities to be issued in the future, we have assumed that all applicable laws,
rules and regulations in effect at the time of such issuance are the same as
such laws, rules and regulations in effect as of the date hereof.
We note that we are members of the Bar of the State of New York and
that we are not admitted to the Bar in the State of Delaware. To the extent
that the opinions expressed herein involve the law of the State of Delaware,
such opinions are based solely upon our reading of the Delaware General
Corporation Law as reported by Prentice-Hall Legal and Financial Services.
Based on the foregoing, and subject to and in reliance on the accuracy
and completeness of the information relevant thereto provided to us, it is our
opinion that the Shares to be issued pursuant to the Plans (including upon the
proper exercise of options granted pursuant to the Plans) have been duly
authorized and, subject to the effectiveness of the Registration Statement
<PAGE>
Ultrafem, Inc.
December 12, 1996
Page 2
and compliance with applicable state securities laws, when issued in accordance
with the terms set forth in the Plans and options issued under the Plans, will
be legally and validly issued, fully paid and nonassessable.
It should be understood that nothing in this opinion is intended to
apply to any disposition of the Shares which any participant in the Plans might
propose to make.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and as an exhibit to any filing made by the Company under
the securities or "Blue Sky" laws of any state.
This opinion is furnished to you in connection with the filing of the
Registration Statement, and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose, except as expressly provided in the preceding
paragraph, without our express written consent, and no party other than you is
entitled to rely on it. This opinion is rendered to you as of the date hereof
and we undertake no obligation to advise you of any change, whether legal or
factual, after the date hereof.
Very truly yours,
/s/Shereff, Friedman, Hoffman & Goodman, LLP
-------------------------------------------------
SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
SFH&G, LLP:GA:DSR:ALK
<PAGE>
ANNEX A
NAME OF PLAN
1. 1990 Stock Option Plan of Ultrafem, Inc.
2. Ultrafem, Inc. 1995 Stock Option Plan for Non-Employee Directors
3. Amended and Restated Option Certificate and Agreement, dated August 1, 1995
between John W. Andersen and Ultrafem, Inc.
4. Amended and Restated Option Certificate and Agreement, dated August 1, 1995
between John W. Andersen and Ultrafem, Inc.
5. Option Certificate and Agreement, dated March 12, 1996, granted by
Ultrafem, Inc. to Rosalind Paaswell
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference into this Registration
Statement on Form S-8 of our report dated August 12, 1996 (August 27, 1996 as to
Note 7), appearing in the Ultrafem, Inc. prospectus filed pursuant to Rule
424(b) under the Securities Act, which was filed November 15, 1996,
(File No. 333-11995).
DELOITTE & TOUCHE LLP
December 12, 1996
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 99
No. of Exercise
Name of Plan Shares Price per Share
<S> <C> <C>
1990 Stock Option Plan of Ultrafem, Inc. 8,750 $4
1990 Stock Option Plan of Ultrafem, Inc. 50,000 $6
1990 Stock Option Plan of Ultrafem, Inc. 500,694 $8
1990 Stock Option Plan of Ultrafem, Inc. 35,000 $10.50
1990 Stock Option Plan of Ultrafem, Inc. 226,806 $20.75(1)
1990 Stock Option Plan of Ultrafem, Inc. 20,000 $30
1990 Stock Option Plan of Ultrafem, Inc. 20,000 $35
1990 Stock Option Plan of Ultrafem, Inc. 20,000 $40
Ultrafem, Inc. 1995 Stock Option Plan for Non-Employee Directors 60,000 $8
Ultrafem, Inc. 1995 Stock Option Plan for Non-Employee Directors 15,000 $14.50
Ultrafem, Inc. 1995 Stock Option Plan for Non-Employee Directors 175,000 $20.75(1)
Amended and Restated Option Certificate and Agreement, dated
August 1, 1995 between John W. Andersen and Ultrafem, Inc. 459,890 $4.35
Amended and Restated Option Certificate and Agreement, dated
August 1, 1995 between John W. Andersen and Ultrafem, Inc. 114,972 $4.35
Option Certificate and Agreement, dated March 12, 1996, granted by
Ultrafem, Inc. to Rosalind Paaswell 2,500 $8.00
</TABLE>
(1) The price shown is the average high and low price for shares of Common
Stock, par value $.001 per share, of the Registrant on the Nasdaq National
Market on December 9, 1996.
