SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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)
THERMO-MIZER ENVIRONMENTAL CORP. 1996 STOCK INCENTIVE PLAN
(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 aggegate of
to be registered per share (1) offering price (1) registration
registered fee
Common Stock,500,000 shares $1.50 $750,000 $227.25
par value
$.001 per share
1
<PAGE>
1) Pursuant to Rule 457 (h) , the offering price of such shares is
estimated solely for the purpose of determining the registration fee.
This Registration Statement, including all exhibits and attachments,
contains 11 pages. The exhbit index may be found on page 5 of the consecutively
numbered pages for the Registration Statement.
2
<PAGE>
PART I
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 or will be the information
specified in this Item will be sent or given to individuals who have been
granted or will be granted awards under the Plan 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 stockholders of the Registrant have authorized the adoption of the
Thermo-Mizer Environmental Corp. 1996 Stock Incentive Plan (the "Plan") at the
Registrant's Annual Meeting on December 12, 1996 covering up to 500,000 shares
of Common Stock.
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 or will be 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.
The Plan provides a means whereby employees, officers, directors,
consultants and independent contractors ("Qualified Grantees") may acquire the
Common Stock of the Company pursuant to grants of (i) Incentive Stock Options
("ISOs") whereby Qualified Grantees may purchase shares of Common Stock; (ii)
nonqualified stock options whereby Qualified Grantees may purchase shares of
Common Stock; and (iii) Stock Appreciation Rights ("SARs") whereby Qualified
Grantees may acquire the right to participate in the appreciation of the Common
Stock. A summary of the significant provisions of the Plan is set forth below. A
copy of the full Plan was filed with the Commission as an exhibit to the
Registrant's Annual Report on Form 10-KSB for the year ended June 30, 1996 and
is incorporated herein by reference.
The Plan shall be administered by a committee of the Board of Directors
(the "Committee"), all of whose members are "disinterested persons" as that term
is defined in Rule 16b-3(d)(3) of the General Rules and Regulations under the
Securities Exchange Act of 1934, consisting of two or more directors appointed
by, and who serve at the pleasure of, the Board of Directors. Subject to the
express terms of the Plan, the Committee has
3
<PAGE>
the sole discretion to determine to whom among those eligible, and the time or
times at which, options and/or Stock Appreciation Rights may be exercised. In
making such determinations, the Committee may take into account the nature and
period of service of Qualified Grantees, their level of compensation, their
past, present and potential contributions to the Company and such other factors
as the Committee in its discretion deems relevant.
The Committee may amend, suspend, or terminate the Plan at any time,
except that no amendment may be adopted without the approval of shareholders
which would (i) increase the benefits accruing to participants under the Plan;
(ii) materially increase the number of securities which may be issued under the
Plan; or (iii) change the eligibility requirements for participation in the Plan
Unless terminated earlier by the Board of Directors, the Plan will terminate on
December 12, 2006.
Subject to adjustments resulting from changes in capitalization, no
more than 500,000 shares of Common Stock may be issued pursuant to the exercise
of options or SARs. Under certain circumstances involving a change in the number
of shares of Common Stock without the receipt by the Company of any
consideration therefor, such as a stocksplit, stock consolidation or payment of
a stock dividend, the class and aggregate number of shares of Common Stock in
respect of which options may be granted under the Plan, the class and number of
shares subject to each outstanding option and the option price per share will be
proportionately adjusted. In addition, if the Registrant is involved in a
merger, consolidation, dissolution or liquidation, the options or SARs granted
under the Plan will be adjusted or, under certain conditions, will terminate,
subject to the right of the option holder or SARs holder to exercise his option
or stock appreciation right or a comparable option substituted at the discretion
of the Registrant prior to such event. An option or SAR may not be transferred
other than by will or by laws of descent and distribution, and during the
lifetime of the option holder may be exercised only by such holder. If any
option expires or terminates for any reason, without having been exercised in
full, the unpurchased shares subject to such option will be available again for
purposes of the Plan.
Subject to the provisions of the Plan, the Committee shall have full
and final authority to select those individuals who are eligible to receive
options pursuant to the Plan, the terms and conditions of which shall be set
forth in an option agreement between the Registrant and the optionee.
The exercise price of each option or SAR is determined by the
Committee, but may not be less than 100 percent of fair market value (110% for
10% or greater shareholders) with repect to the grant of ISOs. An ISO holder who
meets the eligibility requirements of Section 422 of the Internal Revenue Code
of 1986 (the "Code") will not realize income for Federal income tax purposes,
and the Registrant willnot be entitled to a deduction, on either the grant or
the exercise of ISO. If the ISO holder does not dispose
4
<PAGE>
of the shares acquired within two years after the date the ISO was granted to
him or within one year after the transfer of the shares to him, (i) any proceeds
realized on a sale of such shares in excess of the option price will be treated
as long-term capital gain and (ii) the Registrant will not be entitled to any
deduction for Federal income tax purposes with respect to such shares. If an ISO
holder disposes of shares during the two-year or one-year periods referred to
above (a "Disqualifying Disposition"), the ISO holder will not be entitled to
the favorable tax treatment afforded to incentive stock options under the Code.
Instead, the ISO holder will realize ordinary income for Federal income tax
purposes in the year the Disqualifying Disposition is made, in an amount equal
to the excess, if any, of the fair market value of the shares of Common Stock on
the date of exercise over the exercise price.
An ISO generally will recognize long-term capital gains or loss, as the
case may be, if the Disqualifying Disposition is made more than one year after
the shares are transferred the ISO holder. The amount of any such gain or loss
will be equal to the difference between the amount realized on the Disqualifying
Disposition and the sum of (x) the exercise price and (y) the ordinary income
realized by the ISO holder as a result of the Disqualifying Disposition, then
the amount of ordinary income required to be recognized upon the Disqualifying
Disposition will not exceed the amount by which the amount realized from the
disposition exceeds the exercise price. Generally, a loss may be recognized if
the transaction is not a "wash" sale, a gift or a sale between certain persons
or entities classified under the Code as "related persons."
For purposes of computing the alternative minimum tax with respect to
shares acquired pursuant to the exercise of ISOs, the difference between the
fair market value of the shares on the date of exercise over the exercise price
will be an item of tax preference in the year of exercise if the shares are not
subject to a Risk of Forfeiture; if the shares are subject to a Risk of
Forfeiture, the amount of the tax preference taken into account in the year that
the Risk of Forfeiture ceases will be the excess of the fair market value of the
shares at the date they cease to be subject to a Risk of Forfeiture over the
exercise price. The basis of the shares for alternative minimum tax purposes,
generally, will be an amount equal to the price, increased by the amount of the
preference taken into account in computing the alternative minimum taxable
income. The rate of tax applied in general to alternative minimum taxable income
is 24%.
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Certain Documents by Reference
5
<PAGE>
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 June 30, 1996 filed on September 30 1996.
4. The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended June 30, 1995 filed on October 10, 1995.
5. The Registrant's Quarterly Report on Form 10 QSB for the fiscal
quarter ended September 30, 1996 filed on November 16, 1996.
6. The Registrant's quarterly reports on Form 10-QSB for 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 registers all such
securities then remaining unsold, shall be deemed to be incorporated by
reference 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, which incorporates by reference
the description of the shares of Common Stock contained in the Registration
Statement on Form SB-2 (File Number
6
<PAGE>
33-87284-NY). Such shares are traded on the NASDAQ Small Cap Market under the
symbol "THMZ" and the Boston Stock Exchange under the symbol "THZ."
Item 5. Interests of Named Experts and Counsel
Not applicable.
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 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 such individual against the expenses that were
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
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.
7
<PAGE>
Item 8. Exhibits
3(i) (1) Certificate of Incorporation
3(ii) (1) By-Laws
4(i) (2) Thermo-Mizer Environmental Corp. 1996 Stock Incentive Plan
5 Opinion of McLaughlin & Stern, LLP regarding the legality of the
securities being registered.
24.2 Consent of McLaughlin & Stern, LLP (included in, and incorporated by
Exhibit 5 hereto).
(1) Included in, and incorporated by reference to, the Registrant's Registration
Statement on Form SB-2 (File Number 33 87284-NY)..
(2) Included in, and incorporated by reference to the Registrant's Annual Report
on Form 10-KSB for the fiscal year ended June 30, 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 of 1933, as amended, 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 hereby which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, as amended, 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
8
<PAGE>
securities offered therein, and the offering of such securities offered
indemnification for liabilities arising under the Securities Act of 1933, as
amended, 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 of 1933, as amended,
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 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 of 1933, as amended, and will be
governed by the final adjudication of such issue.
9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Town of Ridgefield, State of New Jersey, on this 13th
day of January, 1997.
THERMO-MIZER ENVIRONMENTAL CORP.
By: /s/Jon J. Darcy
Jon J. Darcy
President
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 January 13, 1997
- ---------------
Jon J. Darcy Officer, Chief Financial Officer,
Director
/s/Edward A. Sundberg. Chairman of the Board January 13, 1997
- ---------------------
Edward A. Sundberg of Directors
Director January , 1997
Carl R. Bruno
Director January , 1997
K. Ivan F. Gothner
/s/Edward A. Heil Director January 13, 1997
Edward A. Heil
steven\thermomi\s-8\s8option.113
`
10
<PAGE>
Exhibit 5
MCLAUGHLIN & STERN, LLP.
260 MADISON AVENUE, 18TH FLOOR
NEW YORK, NEW YORK 10016
(212) 448-1100
FAX (212) 448-0066
January 13, 1997
United States Securities
& Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Thermo-Mizer Environmental Corp.
Gentlemen:
Reference is made to the Registration Statement on Form S-8 (the
"Registration Statement"), filed with the Securities and Exchange Commission by
Thermo-Mizer Environmental Corp (the "Company").
We hereby advise you that we have examined originals or copies
certified to our satisfaction of the Certificate of Incorporation and amendments
thereto and the By-Laws of the Company, minutes of the meetings of the Board of
Directors and Shareholders and such other documents and instruments, and we have
made such examination of law as we have deemed appropriate as the basis for the
opinions hereinafter expressed.
Based on the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware.
2. The 500,000 shares of Common Stock, which are due to be
sold pursuant to the Registration Statement have been duly and validly
authorized and, when paid for, will be validly issued, fully paid and
non-assessable.
In addition, we hereby consent to the reference to our firm under the
caption "Legal Matters" in the prospectus forming part of such Registration
Statement and to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
McLaughlin & Stern, LLP
<PAGE>
steven\thermomi\s-8\opinion1.13
12
<PAGE>
