As filed with the Securities and Exchange Commission on August 16, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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U.S.-CHINA INDUSTRIAL EXCHANGE, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 13-3097642
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7201 WISCONSIN AVENUE, BETHESDA, MARYLAND 20814
(Address of Principal Executive Offices)
1994 STOCK OPTION PLAN
(Full title of the plans)
ROBERT C. GOODWIN, JR., ESQ.
EXECUTIVE VICE PRESIDENT OPERATIONS, TREASURER,
ASSISTANT SECRETARY AND GENERAL COUNSEL
U.S.-CHINA INDUSTRIAL EXCHANGE, INC.
7201 WISCONSIN AVENUE, BETHESDA, MARYLAND 20814
(301) 215-7777
(Name, address and telephone number, including area code, of agent for service)
with a copy to:
GARY J. SIMON, ESQ.
PARKER CHAPIN LLP
THE CHRYSLER BUILDING
405 LEXINGTON AVENUE
NEW YORK, NEW YORK 10174
(212) 704-6000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after the effective date of this registration statement.
CALCULATION OF REGISTRATION FEE
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<CAPTION>
============================================ ================ ======================= ======================= ================
Proposed Proposed
Title of each class of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered Offering Price Aggregate Registration
(1) Per Share Offering Price Fee
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<S> <C> <C> <C> <C> <C>
Common Stock, $.01 par value per share 7,893 $ 10.5625 (2) $ 83,370 $ 22
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Common Stock, $.01 par value per share 54,607 $ 12.83 (3) $ 700,608 $ 185
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(1) Pursuant to Rule 416(b), there also shall be deemed covered hereby such
additional securities as may result from anti-dilution adjustments under
the 1994 Stock Option Plan.
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(2) Estimated solely for the purpose of calculating the registration fee on
the basis of, pursuant to Rule 457(c) and (h), the average of the bid and
asked prices per share of the registrant's Common Stock on the Nasdaq
Stock Market on August 15, 2000 with respect to 7,893 shares subject to
future grants under the 1994 Stock Option Plan.
(3) Represents a weighted average exercise price of $12.83 per share of shares
underlying outstanding stock options.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1999 (the "Annual Report") as amended by Form 10-KSB/A, and
the Quarterly Report on Form 10-QSB for the quarter ended March 31, 2000
heretofore filed by the Company with the Securities and Exchange Commission
(File No. 0-24624) pursuant to Section 13(a) of the Securities Exchange Act of
1934, as amended (the "1934 Act") and the description of the Company's Common
Stock contained in the Company's registration statement on Form 8-A filed on
August 3, 1994 under the 1934 Act, including any amendment or report filed for
the purpose of updating such description, are incorporated herein by
reference.
All documents filed subsequent to the date of this registration
statement pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 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 date of the filing of
such documents. Any statement contained in a document incorporated or deemed
to be incorporated herein by reference 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 or is deemed to be incorporated by reference herein modifies or
supersedes such statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 722 of the New York Business Corporation Law ("NYBCL")
permits, in general, a New York corporation to indemnify any person made, or
threatened to be made, a party to an action or proceeding by reason of the fact
that he or she was a director or officer of the corporation, or served another
entity in any capacity at the request of the corporation, against any judgment,
fines, amounts paid in settlement and reasonable expenses, including attorney's
fees actually and necessarily incurred as a result of such action or proceeding,
or any appeal therein, if such person acted in good faith, for a purpose he or
she reasonably believed to be in, or, in the case of service for another entity,
not opposed to, the best interests of the corporation and, in criminal actions
or proceedings, in addition had no reasonable cause to believe that his or
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her conduct was unlawful. Section 723 of the NYBCL permits the corporation to
pay in advance of a final disposition of such action or proceeding the expenses
incurred in defending such action or proceeding upon receipt of an undertaking
by or on behalf of the director or officer to repay such amount as, and to the
extent, required by statute. Section 721 of the NYBCL provides that
indemnification and advancement of expense provisions contained in the NYBCL
shall not be deemed exclusive of any rights to which a director or officer
seeking indemnification or advancement of expenses may be entitled, provided no
indemnification may be made on behalf of any director or officer if a judgment
or other final adjudication adverse to the director or officer establishes that
his or her acts were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action so adjudicated,
or that he or she personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled.
Article Seventh of the Company's Certificate of Incorporation
provides, in general, that the Company may indemnify, to the fullest extent
permitted by applicable law, every person threatened to be made a party to any
action, suit or proceeding by reason of the fact that such person is or was an
officer or director or was serving at the request of the Company as a director,
officer, employee, agent or trustee of another corporation, business,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
against expenses, judgments, fines and amounts paid in settlement in connection
with such suit or proceeding. Article Seventh of the Certificate of
Incorporation also provides that the Company may indemnify and advance expenses
to those persons as authorized by resolutions of a majority of the Board of
Directors or shareholders, agreement, directors' or officers' liability
insurance policies, or any other form of indemnification agreement.
In accordance with that provision of the Certificate of
Incorporation, the Company shall indemnify any officer or director (including
officers and directors serving another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity at the
Company's request) made, or threatened to be made, a party to an action or
proceeding (whether civil, criminal, administrative or investigative) by reason
of the fact that he or she was serving in any of those capacities against
judgments, fines, amounts paid in settlement and reasonable expenses (including
attorney's fees) incurred as a result of such action or proceeding.
Indemnification would not be available under Article Seventh of the Certificate
of Incorporation if a judgment or other final adjudication adverse to such
director or officer establishes that (i) his or her acts were committed in bad
faith or were the result of active and deliberate dishonesty and, in either
case, were material to the cause of action so adjudicated, or (ii) he or she
personally gained in fact a financial profit or other advantage to which he or
she was not legally entitled. Article Seventh of the Certificate of
Incorporation further stipulates that the rights granted therein are contractual
in nature.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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ITEM 8. EXHIBITS.
Exhibit
Number Description
------ ------------
5.1 Opinion of Parker Chapin LLP, as to the legality of the common
stock being offered.
23.1 Consent of Parker Chapin LLP (included in their opinion filed
as Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of attorney of certain officers and directors of the
registrant (contained in the signature page).
99.1 1994 Stock Option Plan.
ITEM 9. UNDERTAKINGS.
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:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the "Securities
Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if 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 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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.
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The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions described in Item 6
above, 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 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
Securities 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, the registrant has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Bethesda, State of
Maryland, on the 16th day of August, 2000.
U.S.-China Industrial Exchange, Inc.
By: /s/ Roberta Lipson
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Roberta Lipson
Chairperson of the Board, Chief
Executive Officer and President
POWER OF ATTORNEY
The undersigned directors and officers of U.S.-China Industrial
Exchange, Inc. hereby constitute and appoint Roberta Lipson and Lawrence Pemble,
and each of them, with full power to act without the other and with full power
of substitution and re-substitution, our true and lawful attorneys-in-fact with
full power to execute in our name and behalf in the capacities indicated below
any and all amendments (including post-effective amendments and amendments
thereto) to this registration statement under the Securities Act and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission and hereby ratify and confirm each
and every act and thing that such attorneys-in-fact, or any of them, or their
substitutes, shall lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Roberta Lipson Chairperson of the Board, August 16, 2000
--------------------------------------- Chief Executive Officer,
Roberta Lipson President and Director
/s/ Lawrence Pemble Executive Vice President August 16, 2000
--------------------------------------- Finance and Business
Lawrence Pemble Development and Director
(Principal Financial Officer)
/s/ Robert C. Goodwin, Jr. Executive Vice President August 16, 2000
--------------------------------------- Operations, Treasurer, Assistant
Robert C. Goodwin, Jr. Secretary, General Counsel and
Director
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/s/ A. Kenneth Nilsson Director August 1, 2000
---------------------------------------
A. Kenneth Nilsson
/s/ Julius Y. Oestreicher Director August 7, 2000
---------------------------------------
Julius Y. Oestreicher
/s/ Ronald Zilkowski Senior Vice President August 1, 2000
--------------------------------------- Finance and Controller
Ronald Zilkowski
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
------- -----------
5.1 Opinion of Parker Chapin LLP, as to the legality of the common
stock being offered.
23.1 Consent of Parker Chapin LLP (included in their opinion filed
as Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of attorney of certain officers and directors of the
registrant (contained in the signature page).
99.1 1994 Stock Option Plan.
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