Registration No. 333-44489
FORM S-8
POST-EFFECTIVE AMENDMENT NO. 1
TO
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BALCHEM CORPORATION
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(Exact name of registrant as specified in its charter)
Maryland 13-2578432
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
P.O. Box 175
Slate Hill, New York 10973
(914) 355-5300
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(Address of Principal Executive Offices)
BALCHEM CORPORATION
401(K)/PROFIT SHARING PLAN
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(Full Title of the Plan)
Dino A. Rossi
President and Chief Executive Officer
Balchem Corporation
P.O. Box 175
Slate Hill, New York 10973
(914) 355-5300
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Name, Address and Telephone Number, including area code, of Agent for Service)
Copy to:
Nathan E. Assor, Esq.
Golenbock, Eiseman, Assor & Bell
437 Madison Avenue
New York, New York 10022-7302
(212) 907-7300
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities to be Amount to be offering price per aggregate offering Amount of
registered registered(1) share(2) price(2) registration fee(2)
---------- ------------- -------- -------- -------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.06-2/3 per share 150,000 $11.00 $1,650,000 $568.97
</TABLE>
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(1) Represents an aggregate of 150,00 shares (as adjusted to give effect to
a three-for-two stock split effected by means of a stock dividend in
June 1998) covered by the Balchem Corporation 401(k)/Profit Sharing
Plan (the "Plan"). Such shares were initially registered pursuant to
the Registration Statement to which this Amendment relates.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate number of
interests to be offered or sold pursuant to the Plan.
(2) Calculated pursuant to Rule 457(h)(1) on the basis of the high and low
prices of the Company's Common Stock as reported on the consolidated
reporting system for the American Stock Exchange on January 9, 1998. A
registration fee of $568.97 was paid upon filing of the Registration
Statement to which this Amendment relates on January 20, 1998. Proposed
maximum offering price per share is adjusted to give effect to a three-
for-two stock split effected by means of a stock dividend in June 1998.
This Post-Effective Amendment to Registration Statement shall become
effective immediately upon filing as provided in Rule 464 under the
Securities Act of 1933.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
EXPLANATORY NOTE
As permitted by the rules of the Securities and Exchange
Commission, this Registration Statement omits the information specified in Part
I of Form S-8. The documents containing the information specified in Part I will
be delivered to the participants in the plan covered by this Registration
Statement, as amended, as required by Rule 428(b) under the Securities Act of
1933, as amended. Such documents are not being filed with the Securities and
Exchange Commission as part of this Registration Statement, as amended, or as
prospectuses or prospectus supplements pursuant to Rule 424 of such Act.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The Registrant and the Balchem Corporation 401(k)/Profit Sharing Plan
(the "Plan") hereby incorporate by reference the following documents into this
Post-Effective Amendment No. 1 to Registration Statement:
(a) (1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998.
(2) The Plan's Annual Report on Form 11-K to be filed for the Plan's
fiscal year ended December 31, 1998.
(b) Not Applicable.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, File No. 1-13648, filed under
the Securities Exchange Act of 1934 (the "Exchange Act") and declared effective
by the Securities and Exchange Commission on February 28, 1995.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Registrant and the Plan pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment to this Registration Statement 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 in and made a part of
this Registration Statement from the date of filing of such documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Article Eighth of the Registrant's Articles of Incorporation, as
amended, provides as follows:
"EIGHTH: To the fullest extent permitted by Maryland statutory or
decisional law, as amended or interpreted, no director or officer of the
Corporation shall be personally liable to the Corporation or its stockholders
for money damages. No amendment of the charter of the Corporation or repeal of
any of its provisions shall limit or eliminate the benefits provided to
directors and officers under this provisions with respect to any act or omission
that occurred prior to such amendment or repeal."
Under Maryland law, the foregoing provisions do not eliminate or limit
the personal liability of a director or an officer (a) to the extent that it is
proved that the director or officer actually received an improper benefit or
profit in money, property or services for the amount of the benefit or profit in
money, property or services actually received or (b) to the extent that a
judgment or other final adjudication is entered in a proceeding based on a
finding that the director's or officer's action, or failure to act, was the
result of active and deliberate dishonesty and was material to the cause of
action adjudicated in such proceeding. These provisions also do not affect the
ability of Registrant or its stockholders to obtain equitable relief, such as an
injunction or rescission.
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The Maryland General Corporation law generally permits a corporation to
indemnify its directors and officers, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by them
in connection with any proceeding to which they may be made a party by reason of
their service in those or other capacities, unless it is established that (a)
the act or omission of the director or officer was material to the matter giving
rise to such proceeding and (1) was committed in bad faith or (2) was the result
of active and deliberate dishonesty, (b) the director or officer actually
received an improper benefit in money, property or services, or (c) in the case
of any criminal proceeding, the director or officer had reasonable cause to
believe that the action or omission was unlawful. However, in the case of a suit
by or in the right of the corporation, a director or officer may not be
indemnified in respect of any proceeding in which he shall have been adjudged
liable to the corporation, unless and only to the extent a court of appropriate
jurisdiction determines that such person is fairly and reasonably entitled to
indemnity for such expenses as such court may deem proper.
Article XI of the By-laws of the Registrant provides as follows:
"INDEMNITY OF OFFICERS AND DIRECTORS. The corporation shall indemnify
and hold harmless each of its directors and officers against any and all
expenses actually and necessarily incurred in connection with the defense of any
action, suit or proceeding to which such director or officer is made a party by
reason of his being, or having been, a director or officer of the corporation,
except in relation to matters as to which he shall be adjudged in such action,
suit or proceeding to be liable for gross negligence or misconduct in the
performance of his duties as such director or officer. In the event of
settlement of such action, suit or proceeding in the absence of such
adjudication, indemnification shall include reimbursement of amounts paid in
settlement and expenses actually and necessarily incurred by such director or
officer in connection therewith, but such indemnification shall be provided only
if this corporation is advised by its counsel that in his opinion such
settlement is for the best interests of this corporation and the director or
officer to be indemnified has not been guilty of gross negligence or misconduct
in respect of any matter covered by such settlement. Such right of
indemnification shall not be deemed exclusive of any other right, or rights, to
which such director or officer may be entitled under any agreement, vote of
shareholders or otherwise."
Section 3.5 of the Trust Agreement under the Balchem Corporation
401(k)/Profit Sharing Plan (the "Plan"), effective as of January 1, 1998,
between the Registrant, as Employer (the "Employer"), and Chase Manhattan Bank,
a New York State Bank, as Trustee under the Plan (the "Trustee"), provides as
follows with regard to the Trust (the "Trust") maintained under the Plan:
<PAGE>
"Section 3.5 Indemnification of Trustee.
(a) The Employer shall indemnify and hold harmless
the Trustee, its affiliates, and their officers, agents and employees from and
against all damages, claims, losses, liabilities, demands, penalties,
obligations, costs, disbursements, and expenses (including, for example,
attorneys' and experts' fees, expenses, and disbursements) which it or they may
receive, suffer or incur, arising out of or resulting from the performance of
the Trustee's responsibilities with respect to the Trust, except to the extent
that the same is determined to be the result of the negligence or willful
misconduct of the Trustee or its affiliates or their officers, agents or
employees.
(b) Additionally, the Employer and the Trust, jointly
and separately, shall indemnify and hold harmless the Trustee, its affiliates,
and their officers, agents and employees from and against all damages, claims,
losses, liabilities, demands, penalties, obligations, costs, disbursements, and
expenses including, for example, attorneys' and experts' fees, expenses, and
disbursements) which it or they may receive, suffer or incur, arising out of or
resulting from the performance of the Trustee's responsibilities with respect to
the Trust, except to the extent that the same is determined to be the result of
the negligence or wilful misconduct of the Trustee or its affiliates or their
officers, agents, or employees.
(c) The Trustee, its affiliates, and their officers,
agents, and employees may bring action against the Employer to contribute to the
satisfaction of any damages, claims, losses, liabilities, demands, penalties,
obligations, or costs to the extent that they (i) are not subject to
indemnification under Subsections (a) or (b) and (ii) are are caused by the
culpable conduct of the Employer, the Administrator or any Investment Manager
[as such terms are defined in the Plan]."
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Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
4.1 Balchem Corporation 401(k)/Profit Sharing Plan (the "Plan")
(incorporated by reference to Exhibit 4.1 to Registrant's
Registration Statement on Form S-8 as filed on January 20,
1998 (File No. 333-44489) (the "Registration Statement")).
4.2 First Amendment to Balchem Corporation 401(k)/Profit Sharing
Plan.
5 Opinion of Lebensfeld Borker & Sussman LLP (incorporated by
reference to Exhibit 5 to the Registration Statement).
23.1 Consent of Lebensfeld Borker & Sussman LLP (incorporated by
reference to Exhibit 5 to the Registration Statement).
23.2 Consent of KPMG LLP (incorporated by reference to Exhibit 23.2
to the Registration Statement).
23.3 Consent of Judelson, Giordano & Siegel, P.C. (incorporated by
reference to Exhibit 23.3 to the Registration Statement).
24 Power of Attorney executed by the Officers and Directors who
signed this Amendment to Registration Statement is set forth
on the signature page of the Registration Statement.
Pursuant to Item 8(b) of Form S-8, the Registrant hereby
undertakes that it will submit or has submitted the Plan and
any amendment thereto to the Internal Revenue Service ("IRS")
in a timely manner and has made or will make all changes
required by the IRS in order to qualify the Plan.
<PAGE>
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 to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(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, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
value of securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of a prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee' table in the effective 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 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 Exchange Act that are
incorporated by reference in the Registration Statement.
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(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.
(b) 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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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 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 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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<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
the requirements for filing on Form S-8, and has duly caused this Amendment to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Hamlet of Slate Hill and State of New York on this 29th
day of April, 1999.
BALCHEM CORPORATION
By: /s/ Dino A. Rossi
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Name: Dino A. Rossi
Title: President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated:
<TABLE>
<S> <C> <C>
/s/ Dino A. Rossi President, Chief Executive Officer and Director April 29, 1999
- ----------------------------------- (principal executive officer and
Dino A. Rossi principal financial officer))
/s/ Francis J. Fitzpatrick Controller (principal April 29, 1999
- ----------------------------------- accounting officer)
Francis J. Fitzpatrick
/s/ Donald E. Alguire Director April 29, 1999
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Donald E. Alguire
/s/ John E. Beebe Director April 29, 1999
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John E. Beebe
/s/ Francis X. McDermott Director April 29, 1999
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Francis X. McDermott
/s/ Kenneth P. Mitchell Director April 29, 1999
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Kenneth P. Mitchell
/s/ Carl R. Pacifico Director April 29, 1999
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Carl R. Pacifico
/s/ Israel Sheinberg Director April 29, 1999
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Israel Sheinberg
/s/ F. Leonard J. Zweifler Director April 29, 1999
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Leonard J. Zweifler
</TABLE>
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Pursuant to the requirements of the Securities Act of 1933, the
Registrant, as Plan Administrator, has duly caused this Amendment to
Registration Statement to be signed on behalf of the Plan by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on April
29, 1999.
BALCHEM CORPORATION
401(K)/PROFIT SHARING PLAN
By: BALCHEM CORPORATION,
Plan Administrator
By: /s/ Dino A. Rossi
-------------------------------------
Name: Dino A. Rossi
Title: President and Chief Executive Officer
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EXHIBIT INDEX
Exhibit
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4.1 Balchem Corporation 401(k)/Profit Sharing Plan (the "Plan")
(incorporated by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-8 as filed on January 20, 1998 (File
No. 333- 44489) (the "Registration Statement")).
4.2 First Amendment to Balchem Corporation 401(k)/Profit Sharing Plan.
5 Opinion of Lebensfeld Borker & Sussman LLP (incorporated by reference
to Exhibit 5 to the Registration Statement).
23.1 Consent of Lebensfeld Borker & Sussman LLP (incorporated by reference
to Exhibit 5 to the Registration Statement).
23.2 Consent of KPMG LLP (incorporated by reference to Exhibit 23.2 to the
Registration Statement).
23.3 Consent of Judelson, Giordano & Siegel, P.C. (incorporated by reference
to Exhibit 23.3 to the Registration Statement).
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FIRST AMENDMENT TO
BALCHEM CORPORATION 401(K)/PROFIT SHARING PLAN
Balchem Corporation, a corporation organized under the laws of
the State of Maryland, and having executive offices at Route 6 and Route 284,
Slate Hill, New York, hereby adopts this First Amendment to its 401(k)/Profit
Sharing Plan, effective January 1, 1998:
1. Article I, Definitions, is amended by the addition of a new
Section 1.32 to read as follows:
"1.32 Senior Grade Employees. Senior Grade Employees are those
Participants who are in Company salary grades which exceed
$100,000 per year, or whose Annual Compensation exceeds $100,000
in a particular Plan Year." IN WITNESS WHEREOF, the Company has
set its corporate name
hereto, by and through its duly authorized officer.
BALCHEM CORPORATION
By: /s/ Dino A. Rossi
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Its President
Dated: April 29, 1999
