<PAGE>
As filed with the Securities and Exchange Commission on July 11, 1997
Registration No.
- ---------------------------------------------------------------------
Securities and Exchange Commission
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ARIEL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-3137699
(State or Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
2540 Route 130
Cranbury, New Jersey 08512
(Address of principal executive offices)
1995 STOCK OPTION PLAN
(Full Title of Plan)
Anthony M. Agnello
Ariel Corporation
2540 Route 130
Cranbury, New Jersey 08512
(609) 860-2900
(Name, Address and telephone number,
including area code, of agent for service)
with a copy to:
Harold W. Paul, Esq.
Berger & Paul, L.L.P.
630 Third Avenue
New York, New York 10017
(212) 661-2727
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CALCULATION OF REGISTRATION FEE
-------------------------------
<TABLE>
<CAPTION>
====================================================================================================================
Title of Proposed maximum Proposed maximum Amount of
Securities to Amount to be offering price aggregate offering registration
be registered registered per share (1) price (2) fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 600,000 $7.50 $4,500,000.00 $1,363.50
par value $.001
per share
====================================================================================================================
</TABLE>
(1) The proposed maximum offering price per share is disclosed in accordance
with Rule 457(c) and (h) promulgated under the Securities Act of 1933, as
amended.
(2) The proposed maximum aggregate offering price is the total of unissued
options remaining in the 1995 Plan, as amended, - 600,000 - at the closing price
on Nasdaq on July 8, 1997 of $7.50 in accordance with Rule 457(h) under the
Securities Act of 1933, as amended.
----------
The amount being registered represents the maximum number of shares of
Common Stock that may be issued by the Company upon the exercise of all
remaining 1995 plan options. 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 all plans.
In accordance with the provisions of Rule 462 promulgated under the
Securities Act of 1933, as amended, the Registration Statement will become
effective upon filing with the Securities and Exchange Commission.
The Registration Statement, including all exhibits and attachments,
contains 16 pages. The exhibit index may be found on page 11 of the
consecutively numbered pages of the Registration Statement.
<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 herein by
reference in this Registration Statement:
(a) The contents of the earlier Registration Statement on Form
S-8 filed under File # 333-5196 on July 3, 1996;
(b) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, filed with the Securities and Exchange Commission (the
"Commission") pursuant to Section 13(a) of the Securities Exchange Act of 1934
(the "Exchange Act");
(c) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1997, filed with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act;
(d) The Registrant's Proxy Statement dated May 14, 1997; and
(e) The description of the Company's common stock, par value $.001 per
share (the "Common Stock"), contained in the Registrant's 8-A Registration
Statement filed with the Commission pursuant to Section 12(g) of the Exchange
Act, including any subsequent amendment(s) or report(s) filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant 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 offered have been
sold or which de-registers 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.
The Common Stock of the Registrant is registered under Section 12 of
the Exchange Act.
4
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Item 5. Interests of Named Experts and Counsel.
Certain legal matters in connection with the shares of common stock
being registered are being passed upon by Berger & Paul L.L.P., 630 Third
Avenue, New York, New York 10017, counsel to the Registrant. Harold W. Paul, a
member of the firm, owns 31,500 common shares including 10,000 shares issuable
upon the exercise of options previously registered under the earlier
Registration Statement.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware permits a
corporation to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or contemplated action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation), by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding if he 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, had not
reasonable cause to believe his conduct was unlawful.
A corporation also may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or contemplated action
or suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to be best interests of the
corporation. However, in such an action by or on behalf of a corporation, no
indemnification may be made in respect of any claim, issue or matter as to which
the person is adjudged liable to the corporation unless and only to the extent
that the court determines that, despite the adjudication of liability but in
view of all the circumstances, the person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
5
<PAGE>
In addition, the indemnification provided by Section 145 shall not be
deemed 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, both as to action in his official capacity and as to
action in another capacity while holding such office.
The Amended and Restated Certificate of Incorporation of the Company
and the Bylaws of the Company provide for indemnification of directors and
officers of the Company to the fullest extent permitted by law, as now in effect
or later amended. The Bylaws provide that expenses incurred by an officer or
director in defending a civil or criminal action, suit, or proceeding may be
paid by the Company in advance of final disposition upon receipt of an
undertaking by or on behalf of such person to repay such amount if it ultimately
is determined that such person is not entitled to be indemnified by the Company.
The Company may provide liability insurance for each director and
officer for certain losses arising from claims or charges made against them
while acting in their capacities as directors or officers of the Company. The
Company currently maintains such liability insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
- ----------- -----------
The Registrant incorporates by reference Exhibits numbered 4.1 through
4.20 filed as part of the earlier Registration Statement on Form S-8 under File
# 333-5196.
5.1 Opinion of Berger & Paul, L.L.P.
23.1 Consent of Coopers & Lybrand, L.L.P.
23.2 Consent of Berger & Paul (included in Exhibit 5.1)
6
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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 or appendix 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 effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(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 post-effective
amendment any of the securities 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 were 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
7
<PAGE>
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 procedures, 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 a final adjudication of such issue.
8
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EXHIBIT INDEX
-------------
Exhibit No. Description
- ----------- -----------
5.1 Opinion of Berger & Paul
23.1 Consent of Coopers & Lybrand, L.L.P.
23.2 Consent of Berger & Paul (included in Exhibit 5.1)
9
<PAGE>
BERGER & PAUL, LLP LETTERHEAD
July 11, 1997
Ariel Corporation
2540 Route 130
Cranbury, New Jersey 08512
Dear Sirs:
Reference is made to the Registration Statement on Form S-8
("Registration Statement") filed by Ariel Corporation ("Company") under the
Securities Act of 1933, as amended ("Act"), with respect to an aggregate of
600,000 shares of common stock, par value $.001 per share ("Common Stock") to be
offered by the Company under the Company's 1995 Stock Option Plan, as amended
(the "Plan").
We have examined such documents and considered such legal matters as we
have deemed necessary and relevant as the basis for the opinion set forth below.
With respect to such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as reproduced
or certified copies, and the authenticity of the originals of those latter
documents. As to questions of fact material to this opinion, we have, to the
extent deemed appropriate, relied upon certain representations of certain
officers and employees of the Company.
Based upon the foregoing, it is our opinion that the Common Stock to be
issued by the Company under the Plan, as amended, when sold in accordance with
the terms of the Plan and the instruments governing their issuance, will be
legally issued, fully paid and non-assessable, although they may be subject to
contractual restrictions established by the Plan or instrument.
<PAGE>
Ariel Corporation
July 11, 1997
Page Two
In giving this opinion, we have assumed that all certificates for the
Company's shares of Common Stock, prior to their issuance, will be duly executed
on behalf of the Company by the Company's transfer and/or warrant agent and
registered by the Company's registrar, if necessary, and will conform, except as
to denominations, to specimens which we have examined.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement, to the use of our name as your counsel, and to all
references made to us in the Registration Statement and in the Prospectus
forming a part thereof.
Very truly yours,
/s/ Berger & Paul, L.L.P.
---------------------------
/hv BERGER & PAUL, L.L.P.
<PAGE>
[LETTERHEAD OF COOPERS & LYBRAND]
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Ariel Corporation on Form S-8 of our report dated March 7, 1997, on our audits
of the financial statements of Ariel Corporation as of December 31, 1996 and
1995 and for each of the three years in the period ended December 31, 1996,
which report is included in Ariel Corporation's Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
--------------------------------
Coopers & Lybrand L.L.P.
Princeton, New Jersey
July 10, 1997
