SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THERMO-MIZER ENVIRONMENTAL CORP.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
22-2312917
(Employer Identification No.)
528 Oritan Avenue, Ridgefield, NJ 07657
(Address of principal executive offices)
NONQUALIFIED OPTIONS
(Full title of the plan)
Steven Schuster, Esq.
McLaughlin & Stern, LLP
260 Madison Avenue
New York, NY 10016
(212) 448-1100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------
Title of Amount Proposed maximum Proposed maximum Amount
securities to be offering price aggregate of
to be registered registered per share (1) offering price(1) registration
fee
- ------------------------------------------------------------------------------
Common Stock,550,000 shares $ .90 $495,000 $ 170.68
par value
$.001 per share
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Common Stock,
25,000 shares,
par value $.001 per share $1.16 $29,000 $10.00
Class B Warrants 1,150,000 warrants $ .05 $55,500 $19.83
Common Stock,
par value $.001,
underlying
Class B Warrants 1,150,000 Shares $3.00 $3,450,000 $1,189.56
---------
Total $1,390.07(2)
(1) Pursuant to Rule 457 (h) , the offering price of such shares is estimated
solely for the purpose of determining the registration fee.
(2) Paid in connection with filing of Registration Statement on September 26,
1996.
This Registration Statement, including all exhibits and
attachments, contains 37 pages. The exhibit index may be found on page 7 of the
consecutively numbered pages of the Registration Statement.
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PART 1
INFORMATION REQUIRED IN THE SECTION 10 (A) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in this Item will be
sent or given to individuals who have been granted awards of nonqualified
options by Thermo-Mizer Environmental Corp., a Delaware corporation (the
"Registrant"), and are not being filed with, or included in, this Registration
Statement on Form S-8 (the "Registration Statement") in accordance with the
rules and regulations of the Securities and Exchange Commission (the
"Commission").
The Board of Directors of the Registrant has authorized the issuance of
nonqualified stock options covering up to 575,000 units, each unit consisting of
one share of Common Stock and two Class B Warrants. Options covering 550,000
units, with an exercise price of $1.00 per unit, have been issued to Solay, Inc.
and Crystal Line Inc. ("collectively, "Consultant") in consideration for the
performance of sourcing merger and acquisition candidates, financial public
relations and other consulting services. Options covering 25,000 units, at an
exercise price of $1.16per unit, have been granted to other consultants.
The options issued to the Consultant are exercisable at a price of
$1.00 per unit for a period of five years commencing as follows:
(A) Options covering 260,000 units of the award are
exercisable upon filing of this Registration Statement.
(B) Options covering 40,000 units are exercisable within 90
days of the filing of this Registration Statement, and
(C) Options covering the remaining 250,000 units of the award
are exercisable on the earlier of (i) the consummation of an acquisition, as
defined or (ii) 18 months from the date of grant.
Effective September 30, 1996, Consultant exercised the options with
respect to the purchase of 260,000 shares of Common Stock and 520,000 Class B
Warrants. The Company and Consultant agreed effective February 21, 1997, to
convert 100,000 shares of Common Stock for 470,000 Class B Warrants and the
agreement by Consultant to deliver 30,000 Class B Warrants to the Company in the
event that Consultant purchases more Units pursuant to the Consulting Agreement.
The number of remaining Units that may be purchased by Consultant under the
Consulting Agreement has been reduced by 100,000.
The options issued to other consultants are exercisable at a price of
$1.16 per unit for a period of five years commencing as follows:
(A) Options covering 25,000 units of the award are
exercisable upon filing of this Registration Statement.
The Class B Warrants included in the Units are exercisable at an
exercise price equal to the greater of (i) $3.00 per share or (ii) 120% of the
offering price of a share of the Registrant's Common Stock in a public offering
by the Registrant which offering results in gross proceeds of not less than
$3,500,000. The Class B warrants shall be exercisable for a period of five years
commencing upon the earlier of (i) the consummation of
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an Acquisition, as defined, or (ii) one year from the date on which the Options
are granted. The Class B Warrants shall otherwise be on substantially the same
terms as the Redeemable Warrants issued by the Registrant in its initial public
offering, including the antidilution provisions.
An Acquisition shall be deemed to include the purchase by the
Registrant (by cash or the issuance of securities, or both) of a corporation,
partnership or other entity introduced to the Registrant by Consultant..
Item 2. Registrant Information and Employee Plan Annual Information
The documents containing the information specified in this Item will be
sent or given to individuals who have been granted awards by the Registrant and
are not being filed with, or included in, this Registration Statement in
accordance with the rules and regulations of the Commission.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
1. The description of the shares of common stock, par value $.001 per
share ("the Common Stock"), contained in the Registrant's Registration Statement
on form 8-A filed with the Commission on October 13, 1995 (File number O-26982)
pursuant to Section 12 (g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), which incorporates by reference the description of the
shares of Common Stock contained in the Registration Statement on Form SB-2
(File Number 33-87284-NY) declared effective by the Commission on August 14,
1995.
2. The Registrant's Registration Statement on Form SB-2
(File Number 33-87284-NY)
3. The Registrant's annual report on Form 10-KSB for the fiscal
year ended June 30, 1995.
4. The Registrant's annual report on Form 10-KSB for the fiscal
year ended June 30, 1996.
5. The Registrant's Registration Statement on Form SB-2
(File Number 33-80961-NY) declared effective by the Commission on
February 27, 1996.
6. The Registrant's quarterly report on Form 10-QSB for the
quarter ended December 31, 1996.
All documents filed by the Registrant with the Commission pursuant to
Sections 13 (a), 13 (c), 14 or 15 (d) of the Exchange Act subsequent to the date
hereof and prior to the filing of a post-effective amendment, which indicate
that all securities offered have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reverence herein and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein 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 incorporated or deemed to be incorporated be reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
The description of the shares of common stock, par value $.001 per
share ("the Common Stock"), contained in the Registrant's Registration Statement
on form 8-A filed with the Commission on October 31, 1995 (File number O-26982)
pursuant to Section 12 (g) of the Exchange Act of 1934, as amended (the
"Exchange Act"), which incorporates by reference the description of the shares
of Common Stock contained in the Registration Statement on Form SB-2 (File
Number 33-87284-NY). Such shares are traded on the NASDAQ SmallCap Market under
the symbol "THMZ" and the Boston Stock Exchange under the symbol "THZ."
The Class B Warrants included in the Units are exercisable at an
exercise price equal to the greater of (i) $3.00 per share or (ii) 120% of the
offering price of a share of the Registrant's Common Stock in a public offering
by the Registrant which offering results in gross proceeds of not less than
$3,000,000. The Class B
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warrants shall be exercisable for a period of five years commencing upon the
earlier of (i) the consummation of an Acquisition, as defined, or (ii) one year
from the date on which the Options are granted. The Class B Warrants shall
otherwise be on substantially the same terms as the Redeemable Warrants issued
by the Registrant in its initial public offering, including the antidilution
provisions.
An Acquisition shall be deemed to include the purchase by the
Registrant (by cash or the issuance of securities, or both) of a corporation,
partnership or other entity introduced to the Registrant by Consultant. The
Class B Warrants included in the Units are exercisable at an exercise price
equal to the greater of (i) $3.00 per share or (ii) 120% of the offering price
of a share of the Registrant's Common Stock in a public offering by the
Registrant which offering results in gross proceeds of not less than $3,000,000.
The Class B warrants shall be exercisable for a period of five years commencing
upon the earlier of (i) the consummation of an Acquisition, as defined, or (ii)
one year from the date on which the Options are granted. The Class B Warrants
shall otherwise be on substantially the same terms as the Redeemable Warrants
issued by the Registrant in its initial public offering, including the
antidilution provisions.
An Acquisition shall be deemed to include the purchase by the
Registrant (by cash or the issuance of securities, or both) of a corporation,
partnership or other entity introduced to the Registrant by Consultant.
Item 5. Interests of Named Experts and Counsel
The legality of the Common Stock and Class B Warrants being offered
hereby will be passed upon for the Company by McLaughlin & Stern, LLP, New York,
New York..
Item 6. Indemnification of Directors and Officers
Reference is made to Section 145 of the Delaware General Corporation
Law, as amended (the "DGCL"), which provides that a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed legal action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of such corporation) by reason of the fact that such person is or was
a director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation in such capacity of another corporation or
business organization. The indemnity may include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such director, officer, employee or agent in connection with such
action, suit or proceeding is such person acted in good faith and in a manner
such person 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 that such person's conduct was unlawful. A Delaware
corporation may indemnify officers and directors in an action by or in the right
of a corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses that such officer or
director actually and reasonably incurred.
Reference is also made to Section 102 (b) (7) of the DGCL, which
enables a corporation in its certificate of incorporation to eliminate or limit
the personal liability of a director for monetary damages for violations of a
director's fiduciary duty, except for liability (I) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
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knowing violation of law, (iii) under Section 174 of the DGCL (providing for
liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions) or (iv) for any transaction from which the director
derived an improper personal benefit.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
3(i) * Certificate of Incorporation
3(ii) *By-Laws
4(iii) **Form of Option issued to Consultant.
4(iv) **Form of Option to be issued to Officers, Directors, Consultants
and Employees.
4(v) **Form of Class B Warrant
5 **Opinion of McLaughlin & Stern, LLP regarding the legality of the
securities being registered.
10(xi) **Consulting Agreement between the Registrant and Consultant
10(xii) Amendment to Consulting Agreement between Registrant and
Consultant dated as of February 21, 1997.
24.2 Consent of McLaughlin & Stern, LLP (included in, and incorporated
by Exhibit 5 hereto).
*Included in, and incorporated by reference to, the Registrant's Registration
Statement on Form SB-2 (File Number 33 87284-NY)..
**Included in, and incorporated by reference to, the Registrant's Registration
Statement on Form S-8 filed on September 26, 1996.
Item 9. Undertakings.
The 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 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 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
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registered hereby which remain unsold at the termination of the offering.
(4) 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 Exchange Act of 1934 that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) 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 Registrant of expenses
incurred or paid by a director, officer or controlling person of 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 settles 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 of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Post-Effective Amendment No.1 to Form S-8 and
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Ridgefield, State of New
Jersey, on this 7th day of March, 1997.
THERMO-MIZER ENVIRONMENTAL CORP.
By: /s/Jon J. Darcy
Jon J. Darcy
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 dates indicated.
Signature Title Date
/s/Jon J. Darcy President, Chief Executive March 7, 1997
---------------
Jon J. Darcy Officer, Chief Financial
Officer, Director
/s/Edward A. Sundberg. Chairman of the Board March 7, 1997
----------------------
Edward A. Sundberg of Directors
____________________ Director March , 1997
Carl R. Bruno
/s/K. Ivan F. Gothner Director March 7, 1997
--------------------
K. Ivan F. Gothner
/s/Edward A. Heil Director March 7, 1997
Edward A. Heil
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AMENDMENT 10 (xii)
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AMENDMENT TO CONSULTING AGREEMENT
THIS AMENDMENT ("Agreement") is made as of the 21st day of February,
1997, by and between Thermo-Mizer Environmental Corp., a Delaware corporation,
with a principal executive office at 528 Oritan Avenue, Ridgefield, New Jersey
07657 (the "Company"), and Solay, Inc. ("Solay") and Crystal Line, Inc.
("Crystal"), each Florida corporations with principal executive offices at 8666
Commerce Avenue, San Diego, California 92121 (Solay and Crystal are referred to
collectively as the "Consultant"), and Brett Salter, also with an address at
8666 Commerce Avenue, San Diego California 92121.
RECITALS
WHEREAS, the Company, Brett Salter and the Consultant entered into a
Consulting Agreement as of July 31st 1996 to provide certain consulting services
with respect to the Company's business;
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, the parties hereby
agree as follows:
1. Effect of Amendment
Except as otherwise amended herein, the Consulting Agreement shall
remain in full force and effect. All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in the Consulting
Agreement.
2. Exchange of Warrants
The parties acknowledge that the Consultant has purchased 260,000 Units
to date. With respect to the Warrants included in the Units previously purchased
by the Consultant and which may be purchased by the Consultant pursuant to the
Consulting Agreement, Consultant and the Company agree, upon execution of this
Agreement, to the conversion of 100,000 shares of Common Stock for 470,000
Warrants and the agreement by Consultant to deliver 30,000 Warrants to the
Company in the event that Consultant purchases 15,000 more Units pursuant to the
Consulting Agreement.
The parties acknowledge that the shares of Common Stock to be exchanged
for the Warrants are the shares of Common Stock registered by the Company under
the Securities Act of 1933 (the "Securities Act") on Form S-8, which
registration statement applied to the registration of 550,000 Units. The Company
shall file an amendment to the Form S-8 to reflect the transaction contemplated
by this amendment. The number of remaining Units that may be purchased by
Consultant under the Consulting Agreement shall be reduced by 100,000, the
number of shares of Common Stock being exchanged..
3. Exercise of Right of Exchange
The Company shall issue the shares of Common Stock to Consultant
promptly following receipt of the original Warrant certificates for 470,000
shares duly endorsed for transfer to the Company.
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4. Payment of Note
Solay Inc. acknowledges that any payments by Jon Darcy under the
promissory note executed in favor of Solay Inc. in the original principal a
mount of $150,000 that are paid to the Company shall reduce, by an equal
amount, the amount owed by Solay Inc. to the Company pursuant to the
promissory note executed by Solay Inc. in favor of the Company in the original
principal amount of $160,000.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as a sealed instrument as of the day and year first above
written.
Thermo-Mizer Environmental Corp. Solay, Inc.
By:\s\ Jon Darcy By: |s| Bret Salter
Title: President Title:
Crystal Line, Inc.
By: \s\Brett Salter
Title:
\s\ Brett Salter
Brett Salter, Individually
steven\thermo\solay\amend.fin
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