As filed with the Securities and Exchange Commission on December 16, 1996
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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AVITAR, INC.
(Exact name of registrant as specified in its charter)
Delaware 06-1174053
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
------------------------------
35 Thorpe Avenue, Suite 101
Wallingford, Connecticut 06492
(203) 265-3594
(203) 234-7737
(Address of Principal Executive Office)
Avitar Consultants Consultation Plan
---------------------------------------------
(Full Title of the Plan)
PETER P. PHILDIUS
35 Thorpe Avenue, Suite 101
Wallingford, Connecticut 06492
(Name and Address of Agent for Service)
Copies to: EUGENE M. CRONIN, ESQ.
DOLGENOS NEWMAN & CRONIN LLP
NEW YORK, NEW YORK 10012
(212) 925-2800
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title of Each Class Amount to Be Offering Aggregate Amount of
of Securities to be Registered Price Per Offering Registration
Registered Share (1) Price Fee
Common Stock,$0.01 par 300,000 $ 0.50 $150,000 $45.45
value
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Documents containing information specified in Part I of Form S-8 will be sent or
given to eligible consultants as required by Rule 428(b)(1). Such documents and
documents incorporated by reference in this Registration Statement pursuant to
Item 3 of Part II, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933, as amended. All
such documents will be dated and maintained in a "prospectus file" as required
by Rule 428(a) and will contain the following legend in a conspicuous place as
directed by Rule 428(b)(1):
This document (or specifically designated portions of this document)
constitutes (constitute) part of a prospectus covering securities
that have been registered under the Securities Act of 1933.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3: INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Avitar, Inc. (the "Registrant") with the
Commission are incorporated in and made a part of this Registration Statement by
reference, except to the extent that any statement or information therein is
modified, superseded or replaced by a statement or information contained in any
other subsequently filed document incorporated herein by reference: (1) the
Registrant's Annual Report on Form 10-KSB for the fiscal year ended September
30, 1995; (2) the Registrant's Current Reports on Form 8-K dated September 30
and October 21, 1996; (3) the Registrant's Quarterly Reports on Form 10-QSB for
the quarters ended December 31, 1995 and March 31 and June 30, 1996; and (4)
from the date of filing of such documents, all documents filed by the Registrant
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended ("Exchange Act") subsequent to the
date of this Registration Statement and 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.
ITEM 4: DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5: INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6: INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section Seven of the Registrant's Certificate of Incorporation, as amended,
provides that the Registrant shall indemnify its officers, directors, employees
and agents to the fullest extent permitted by Delaware General Corporation Law
(the "DGCL"). Section 145 of the DGCL, the relevant indemnification provision of
the DGCL, provides as follows:
(a) 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 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 director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses
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(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him 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 no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which 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 reasonable cause to believe that his conduct
was unlawful.
(b) 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 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 the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of this section, or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section (unless
ordered by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections
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(a) and (b) of this section. Such determination shall be made (1) by a majority
vote of the directors who are not parties to such action, suit or proceeding
even though less than a quorum, or, (2) if there are no such directors or if
such directors so direct, by independent legal counsel in a written opinion, or
(3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation as
authorized in this section. Such expenses (including attorneys' fees) incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, 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.
(g) A corporation shall have power to purchase and maintain insurance on behalf
of any person who 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 any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the corporation" shall include,
in addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as he would
have with respect
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to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to any employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interests of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to hear
and determine all actions for advancement of expenses or indemnification brought
under this section or under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).
In accordance with Section 102(b)(7) of the DGCL, Section Seven of the
Certificate of Incorporation, as amended, of the Registrant eliminates the
personal liability of the Registrant's directors to the Registrant, or its
stockholders for monetary damages for breach of their fiduciary duties as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for payments of unlawful dividends or unlawful stock repurchases 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
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Exhibit No.
5.1 Opinion of Dolgenos Newman & Cronin LLP re legality
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Dolgenos Newman & Cronin LLP
ITEM 9: UNDERTAKINGS
The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made of the
securities registered hereby, 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 "1933 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 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 the undertakings set forth in paragraphs (1)(i) and (1)(ii) above
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
Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934, as amended (the "1934 Act") that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the 1933 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.
(4) That, for the purposes of determining any liability under the 1933 Act, each
filing of the Company's annual report pursuant to Section 13(a) or Section 15(d)
of the 1934 Act that is incorporated by reference in the Registration Statement
shall be
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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.
(5) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the Prospectus, to each person to whom the Prospectus is sent or
given, the latest annual report to stockholders that is incorporated by
reference in the Prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the 1934 Act; and, where interim
financial information required to be presented by Article 3 of Regulation S-X is
not set forth in the Prospectus, to deliver, or cause to be delivered to each
person to whom the Prospectus is sent or given, the latest quarterly report that
is specifically incorporated by reference in the Prospectus to provide such
interim financial information.
(6) Insofar as indemnification for liabilities arising under the 1933 Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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 Company 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 1933 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 Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Wallingford, State of Connecticut, on this 16th day
of December 1996.
AVITAR, INC.
By:/s/ Peter P. Phildius
Name: Peter P. Phildius
Title: 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.
Signature Title Date
/S/ PETER P. PHILDIUS Chairman of the Board December 16, 1996
- --------------------- and Chief Executive
Peter P. Phildius Officer (Principal
Executive Officer)
/S/ DOUGLAS W. SCOTT President and Chief December 16, 1996
- -------------------- Operating Officer;
Douglas W. Scott Director
/S/ GEORGE WITT, PH.D. Director December 16, 1996
- ---------------------
George Witt, Ph.D.
/S/ CRAIG TAYLOR Director December 16, 1996
- ---------------------
Craig Taylor
/S/ JAMES GROTH Director December 16, 1996
- --------------------
James Groth
/S/ JAY LEATHERMAN Controller, Secretary, December 16, 1996
- ------------------ and Chief Financial and
Jay Leatherman Accounting Officer,
(Principal Accounting
and Financial Officer)
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EXHIBIT INDEX
Exhibit No.
5.1 Opinion of Dolgenos Newman & Cronin LLP re legality
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Dolgenos Newman & Cronin LLP
10