SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-8
Registration Statement
Under
The Securities Act of 1933
IDM ENVIRONMENTAL CORP.
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(Exact name of registrant as specified in its charter)
New Jersey 22-2194790
-------------------------- ------------------------
(State or other jurisdiction (IRS Employer
of incorporation) Identification No.)
396 Whitehead Avenue, South River, New Jersey 08882
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(Address of Principal Executive Offices) (Zip Code)
IDM ENVIRONMENTAL CORP. 1998 COMPREHENSIVE
STOCK OPTION AND AWARD PLAN
NON-PLAN STOCK OPTION GRANTS PURSUANT
TO EMPLOYMENT AGREEMENTS
-------------------------
(Full title of the plan)
Copy to:
Joel Freedman Michael Sanders
IDM Environmental Corp. Vanderkam & Sanders
P.O. Box 388 440 Louisiana
396 Whitehead Avenue Suite 475
South River, New Jersey 08882 Houston, Texas 77002
(732) 390-9550 (713) 547-8900
-----------------------------
(Name, address and telephone
number of agent for service)
Approximate date of proposed sales pursuant to the plan: From time to time
after the effective date of this Registration Statement.
<TABLE>
CALCULATION OF REGISTRATION FEE
========================================================================================================================
Proposed
Proposed maximum maximum Amount of
Title of securities Amount to be offering price per aggregate offering registration
to be registered registered (3) share price fee
- - ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 1,000,000 (1) (4) $ 2,934,122.05 (4) $ 865.57
- - ------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value 4,500,000 (2) $ 3.719 (5) $16,735,500.00 $ 4,936.97
- - ------------------------------------------------------------------------------------------------------------------------
Total 5,500,000 $19,669,622.05 $ 5,802.54
========================================================================================================================
</TABLE>
(1) Represents Common Stock issuable under the IDM Environmental Corp. 1998
Comprehensive Stock Option and Award Plan (the "Plan").
(2) Represents Common Stock issuable under Non-Qualified Stock Option
Agreements ("Non-Plan Option Grants") with Joel Freedman and Frank Falco
pursuant to Employment Agreements between those individuals and IDM
Environmental Corp. (the "Company").
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(3) Plus such additional number of shares as may hereafter become issuable
pursuant to the Plan or the Non-Plan Option Grants in the event of a stock
dividend, split-up of shares, recapitalization or other similar transaction
without receipt of consideration which results in an increase in the number
of shares outstanding.
(4) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) promulgated under the Securities
Act of 1933, as amended (the "Securities Act"). The offering price per
share and aggregate offering price are based upon (a) the weighted average
exercise price, for shares subject to outstanding options granted by the
Company under the Company's 1998 Plan (the "Incentive Plan") and (b) the
average of the high and low prices of the Company's Common Stock as
reported on the Nasdaq Stock Market for June 16, 1998, for shares reserved
for future issuance pursuant to the 1998 Plan (pursuant to Rule 457(c)
under the Securities Act)(See Note below regarding computation of offering
price and aggregate offering price).
(5) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) promulgated under the Securities
Act of 1933, as amended (the "Securities Act"). The offering price per
share and aggregate offering price are based upon the exercise price per
share under the terms of the Non-Plan Option Grants.
NOTES TO CALCULATION OF REGISTRATION FEE:
The chart below details the calculations of the registration fee:
Number of Offering Price Aggregate
Type of Shares Shares Per Share Offering Price
- - --------------------------- ----------- -------------- ---------------
Shares issuable pursuant to 113,200 $3.719 $ 420,990.80
outstanding options under 1998 65,000 $3.50 $ 227,500.00
Plan
Shares reserved for future 821,800 $2.78125 $ 2,285,631.25
issuance pursuant to the 1998 ------- ------------
Plan
Total 1,000,000 $ 2,934,122.05
========= ============
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act and the introductory 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 filed with the Securities and Exchange Commission
(the "Commission") are incorporated by reference into this Registration
Statement and are made a part hereof:
(a) The Company's Annual Report on Form 10-K/A for the fiscal year ended
December 31, 1997.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual
Report referred to in Item 3(a) above, including the Company's
Quarterly Report on Form 10-Q/A for the quarter ended March 31, 1998.
(c) The description of securities included in Form 8-A declared effective
by the Commission on April 26, 1994 (Commission File No. 0-23900).
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended, prior to the filing of a post-effective amendment which indicates
that all securities offered hereby 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 the filing of such
reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Michael Sanders, a partner in the law firm of Vanderkam & Sanders which has
rendered an opinion in connection with the Shares offered pursuant to the 1998
Plan, holds an aggregate of 40,000 options exercisable to purchase common stock
of the Company at prices ranging from $2.00 per share to $3.50 per share for ten
year periods commencing between November 20, 1995 and June 2, 1998.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation, as amended, eliminate the personal
liability of directors to the Company or its stockholders for monetary damages
for breach of fiduciary duty to the extent permitted by New Jersey law. The
Company's Bylaws provide that the Company shall indemnify its officers and
directors to the extent permitted by the Business Corporation Act of the State
of New Jersey. Section 14A:3-5 of the New Jersey Business Corporation Act
authorizes a corporation to indemnify directors, officers, employees or agents
of the corporation in non-derivative suits if such party acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interest
of the corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful, as determined in
accordance with New Jersey law. Section 14A:3-5 further provides that
indemnification shall be provided if the party in question is successful on the
merits or otherwise.
The provisions affecting personal liability do not abrogate a director's
fiduciary duty to the Company and its shareholders, but eliminate personal
liability for monetary damages for breach of that duty. The provisions do not,
however, eliminate or limit the liability of a director for failing to act in
good faith, for engaging in intentional misconduct or knowingly violating a law,
for authorizing the illegal payment of a dividend or repurchase of stock, for
obtaining an improper personal benefit, for breaching a director's duty of
loyalty, which is generally described as the duty not to engage in any
transaction which involves a conflict between the interest of the Company and
those of the director, or for violations of the federal securities laws.
The provisions regarding indemnification provide, in essence, that the
Company will indemnify its directors against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with any action, suit or proceeding arising out of the
director's status as a director of the Company, including actions brought by or
on behalf of the Company (shareholder derivative actions). The provisions do not
require a showing of good faith. Moreover, they do not provide indemnification
for liability arising out of willful misconduct, fraud, or dishonesty, for
"short-swing" profits violations under the federal securities laws, or for the
receipt of illegal remuneration. The provisions also do not provide
indemnification for any liability to the extent such liability is covered by
insurance. However, the Company does not currently provide such insurance to its
directors, and there is no guarantee that the Company will provide such
insurance to its directors in the near future although the Company may attempt
to obtain such insurance.
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The provisions also limit or indemnify against liability resulting from
grossly negligent decisions including grossly negligent business decisions
relating to attempts to change control of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
5.1 Opinion and consent of Vanderkam & Sanders re: the legality of the
shares being registered
23.1 Consent of Vanderkam & Sanders (included in Exhibit 5.1)
23.2 Consent of Samuel Klein and Company
99.1(1) IDM Environmental Corp. 1998 Comprehensive Stock Option and Award
Plan
99.2(1) Non-Qualified Stock Option Agreement between the Company and Joel
Freedman
99.3(1) Non-Qualified Stock Option Agreement between the Company and Frank
Falco
- - --------------
(1) Incorporated by reference to the respective exhibits filed with
Registrant's Annual Report on Form 10-K/A for the year ended December 31,
1997.
ITEM 9. UNDERTAKINGS
(a) The registrant hereby undertakes:
(1) To file, during any period in which offers or sells are being
made, a post-effective amendment to this registration statement
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.
(2) That, for the purpose of determining liability under the
Securities Act of 1933, each post- effective amendment shall be
treated as a new registration statement of the securities
offered, and the offering of the securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from registration
any of the securities that remain unsold at the end 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, 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 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.
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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 South River, State of New Jersey on the 17th day of
June, 1998.
IDM ENVIRONMENTAL CORP.
By: /s/ Joel Freedman
-------------------------
JOEL FREEDMAN, President
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.
Signatures Title Date
------------- ---------- --------
/s/ Joel Freedman President, Chief Executive Officer June 17, 1998
- - ------------------------ and Director (Principal Executive
JOEL FREEDMAN Officer)
/s/ Frank A. Falco Chairman of the Board, Chief June 17, 1998
- - ------------------------ Operating Officer, Executive Vice
FRANK A. FALCO President and Director
/s/ Michael B. Killeen Treasurer, Chief Financial Officer June 17, 1998
- - ------------------------ and Director (Principal Financial
MICHAEL B. KILLEEN and Accounting Officer)
Director June , 1998
- - ------------------------ ---
MARK FRANCESCHINI
Director June , 1998
- - ------------------------ ---
RICHARD KELLER
Director June , 1998
- - ------------------------ ---
FRANK PATTI
/s/ Robert McGuinness Director June 17, 1998
- - ------------------------
ROBERT MCGUINNESS
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June 16, 1998
IDM Environmental Corp.
396 Whitehead Avenue
South River, New Jersey 08882
Re: Form S-8 Registration Statement
Gentlemen:
You have requested that we furnish you our legal opinion with respect to
the legality of the following described securities of IDM Environmental Corp.
(the "Company") covered by a Form S-8 Registration Statement, as amended through
the date hereof (the "Registration Statement"), filed with the Securities and
Exchange Commission for the purpose of registering such securities under the
Securities Act of 1933:
1. 1,000,000 shares of common stock, $.001 par value issuable
pursuant to Award grants and upon the exercise of various
options, issued, or to be issued, pursuant to the Company's 1998
Comprehensive Stock Option and Award Plan (the "Plan").
2. 4,500,000 shares of common stock issuable pursuant to certain
non-plan stock option grants ("Non-Plan Options") (the shares of
common stock issuable pursuant the Plan and the Non-Plan Options
are referred to as the "Shares").
In connection with this opinion, we have examined the corporate records of
the Company, including the Company's Articles of Incorporation, Bylaws, and the
Minutes of its Board of Directors and Shareholders meetings, the Plan, the
Non-Plan Opitons, the Registration Statement, and such other documents and
records as we deemed relevant in order to render this opinion.
Based on the foregoing, it is our opinion that, after the Registration
Statement becomes effective and the Shares have been issued and delivered as
described therein, the Shares will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion with Securities and
Exchange Commission as an exhibit to the Registration Statement and further
consent to statements made therein regarding our firm and use of our name in the
Registration Statement.
Sincerely,
VANDERKAM & SANDERS
/s/ Vanderkam & Sanders
b:/ms/legalopinions-8.idm98.2
CONSENT OF INDEPENDENT AUDITORS
As independent certified public accountants, we hereby consent to the
incorporation by reference in the Registration Statement on Form S-8 of our
report relating to the financial statements of IDM Environmental Corp., which
report appears in the Company's Annual Report on Form 10-K/A for the year ended
December 31, 1997 and to all references to this firm included in such
Registration Statement.
SAMUEL KLEIN AND COMPANY
/s/ Samuel Klein and Company
Newark, New Jersey
June 17, 1998
