As filed with the Securities and Exchange Commission on January 27, 2005
Registration No. 333-
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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DYADIC INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 45-0486747
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
140 INTRACOASTAL POINTE DRIVE, SUITE 404 33477
JUPITER, FLORIDA (Zip Code)
(561) 743-8333
(Address of principal executive offices)
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DYADIC INTERNATIONAL, INC.
2001 EQUITY COMPENSATION PLAN
(Full title of the plan)
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MARK A. EMALFARB
CHIEF EXECUTIVE OFFICER
140 INTRACOASTAL POINTE DRIVE, SUITE 404
JUPITER, FLORIDA 33477
(Name and address of agent for service)
(561) 743-8333
(Telephone number, including area code, of agent for service)
Copy to: Copy to:
ROBERT I. SCHWIMMER, ESQ. DARYL B. ROBERTSON, ESQ.
JENKENS & GILCHRIST, JENKENS & GILCHRIST,
A PROFESSIONAL CORPORATION A PROFESSIONAL CORPORATION
225 WEST WASHINGTON, SUITE 2600 1445 ROSS AVENUE, SUITE 3200
CHICAGO, ILLINOIS 60606 DALLAS, TEXAS 75202
(312) 425-3900 (214) 855-4500
CALCULATION OF REGISTRATION FEE
====================================================================================================================
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED (1) (2) PER SHARE (3)(4) PRICE (3)(4) FEE (4)
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Common Stock ($0.001 par 5,133,823 Shares $5.35 $27,465,953 $3,232.74
value per share)
====================================================================================================================
(1) The securities to be registered include an aggregate 5,133,823 shares
reserved for issuance under the Dyadic International, Inc. 2001 Equity
Compensation Plan, as amended (the "Plan").
(2) Pursuant to Rule 416, this registration statement also covers such
additional shares as may hereinafter be offered or issued to prevent
dilution resulting from stock splits, stock dividends, recapitalizations
or certain other capital adjustments.
(3) Estimated solely for purpose of calculating the registration fee.
(4) Calculated pursuant to Rule 457(c) and 457(h). Accordingly, the price per
share of common stock offered hereunder pursuant to the Plan is calculated
to be $5.35, which is the average of the bid and asked price per share of
common stock on the OTC Bulletin Board on January 25, 2005.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
*Information required by Items 1 and 2 of Part I to be contained in the Section
10(a) Prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Dyadic International, Inc., a Delaware corporation (the "Company"), hereby
incorporates by reference in this registration statement the following documents
previously filed by the Company with the Securities and Exchange Commission (the
"Commission"):
(1) The Company's Annual Report on Form 10-KSB filed with the Commission
for the fiscal year ended December 31, 2003.
(2) The Company's Current Report on Form 8-K filed with the Commission
on February 12, 2004.
(3) The Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 2004.
(4) The Company's Quarterly Report on Form 10-QSB for the quarter ended
June 30, 2004.
(5) The Company's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 2004.
(6) The Company's Current Report on Form 8-K filed with the Commission
on September 30, 2004.
(7) The Company's Current Report on Form 8-K filed with the Commission
on November 4, 2004, as amended by the Form 8-K/A amendments filed
on November 15, 2004, December 30, 2004 and January 20, 2005.
(8) The Company's Current Report on Form 8-K filed with the Commission
on December 23, 2004, as amended by the Form 8-K/A amendment filed
on December 30, 2004.
(9) The Company's Current Report on Form 8-K filed with the Commission
on January 14, 2005.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to
the date of this registration statement shall be deemed to be incorporated
herein by reference and to be a part hereof from the date of the filing of such
documents until such time as there shall have been filed a post-effective
amendment that indicates that all securities offered hereby have been sold or
that deregisters all securities remaining unsold at the time of such amendment.
ITEM 4. DESCRIPTION OF SECURITIES
The Company's authorized capital stock consists of 100,000,000 shares of
common stock, par value $0.001 per share, of which 22,231,105 shares were issued
and outstanding as of January 19, 2005, and 5,000,000 shares of preferred stock,
par value $0.0001 per share, none of which are issued and outstanding.
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COMMON STOCK
Holders of the Company's common stock are entitled to receive ratably,
from funds legally available for the payment thereof, dividends when and as
declared by resolution of the board of directors, subject to any preferential
dividend rights which may be granted to holders of any preferred stock
authorized and issued by the board of directors. Holders of common stock do not
have cumulative voting rights and are entitled to one vote per share on all
matters to be voted upon by stockholders. The Company's common stock is not
entitled to preemptive rights and is not subject to redemption, including
sinking fund provisions, or conversion. Upon the Company's liquidation,
dissolution or winding up, the assets, if any, legally available for
distribution to stockholders are distributable ratably among the holders of
common stock after payment of all classes or series of the Company's preferred
stock. All outstanding shares of common stock are validly issued, fully-paid and
nonassessable. The rights, preferences and privileges of holders of common stock
are subject to the preferential rights of all classes or series of preferred
stock that the Company may issue in the future.
PREFERRED STOCK
The Company's board of directors has the authority, without further action
by its stockholders, to issue from time to time the preferred stock in one or
more series and to fix the number of shares, designations, preferences, powers,
and relative, participating, optional or other special rights and the
qualifications or restrictions thereof. The preferences, powers, rights and
restrictions of different series of preferred stock may differ with respect to
dividend rates, amounts payable on liquidation, voting rights, conversion
rights, redemption provisions, sinking fund provisions and other matters. The
issuance of preferred stock could decrease the amount of earnings and assets
available for distribution to holders of common stock or affect adversely the
rights and powers, including voting rights, of the holders of common stock.
Additionally, as discussed below, the issuance of preferred stock with voting
and/or conversion rights may adversely affect the voting power of the holders of
common stock, including the loss of voting control to others.
ANTI-TAKEOVER, LIMITED LIABILITY AND INDEMNIFICATION PROVISIONS
Certificate of Incorporation and Bylaws. Certain provisions in the
Company's restated certificate of incorporation and its bylaws could have the
effect of impeding or discouraging the acquisition of control of the Company by
means of a merger, tender offer, proxy contest or otherwise, including a
transaction in which our stockholders would receive a premium over the market
price for their shares, and thereby protects the continuity of its management.
Specifically, the restated certificate of incorporation or bylaws contain the
following provisions:
o The Company's board of directors is composed of three classes of
directors who serve staggered three-year terms so that only
one-third of the directors are eligible for election at any annual
meeting of stockholders, and cumulative voting in the election of
directors is specifically denied.
o Any action permitted to be taken by stockholders is required to be
effected at a duly called annual or special meeting of stockholders
and cannot be effected by a written consent.
o The Company's stockholders will not be permitted to call a special
meeting of stockholders, and the only business matters permitted to
be conducted at any annual or special meeting of stockholders will
be business matters properly brought before that meeting in
accordance with specified procedures.
o Specific procedures are established for stockholder nominations for
directors and stockholder proposals of business to be considered at
an annual or special meeting of stockholders.
o The board of directors establishes the number of directors, and
vacancies on the board of directors must be filled by a majority
approval of the remaining directors, and directors may not be
removed by stockholder action without cause.
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o The board of directors is empowered to adopt, amend or repeal our
bylaws, while the stockholders may adopt, amend or repeal the
Company's bylaws only upon an affirmative vote of the holders of at
least two-thirds of the voting power of all then outstanding shares
of stock entitled to vote.
o The board of directors has the power to designate and establish new
classes of preferred stock having terms that the board of directors
determines to be advisable.
o With respect to extraordinary matters that are brought to the
stockholders for a vote, including the sale of all or substantially
all of our assets, a merger, a consolidation, the conversion of us
into another type of entity or the amendment of the Company's
restated certificate of incorporation, unless that matter is
affirmatively recommended by the board of directors, its approval
will require the affirmative vote of the holders of at least
two-thirds of the voting power of all then outstanding shares of
stock entitled to vote.
o The foregoing provisions of the restated certificate of
incorporation and bylaws and other provisions pertaining to the
limitation of liability and indemnification of directors may be
amended or repealed only with the affirmative vote of the holders of
at least two-thirds of the voting power of all then outstanding
shares of stock entitled to vote.
In addition, if in the due exercise of its fiduciary obligations, the board of
directors were to determine that a takeover proposal was not in the Company's
best interest, shares of common stock or preferred stock could be issued by the
board of directors without stockholder approval in one or more transactions that
might prevent or render more difficult or costly the completion of the takeover
by:
o diluting the voting or other rights of the proposed acquirer or
insurgent stockholder group;
o putting a substantial voting block in institutional or other hands
that might undertake to support the incumbent board of directors; or
o effecting an acquisition that might complicate or preclude the
takeover.
The effect of all of the foregoing provisions may be to delay or prevent a
tender offer or takeover attempt that a stockholder may determine to be in his
or her best interest, including attempts that might result in a premium over the
market price for the shares held by the stockholders.
Delaware Anti-Takeover Law. The Company is not currently subject to the
provisions of Section 203 of the Delaware General Corporation Law concerning
corporate takeovers. Nevertheless, if the Company's shares of common stock
become listed on a national securities exchange, authorized for quotation on The
Nasdaq Stock Market or held of record by more than 2,000 stockholders, the
Company will become subject to the provisions of Section 203. Section 203
prevents certain Delaware corporations from engaging in a business combination
with any interested stockholder, under certain circumstances. For these
purposes, a business combination includes a merger or sale of more than 10% of
the Company's assets, and an interested stockholder includes a stockholder who
owns 15% or more of the Company's outstanding voting stock, as well as
affiliates and associates of these persons. Under these provisions, this type of
business combination is prohibited for three years following the date that the
stockholder became an interested stockholder unless:
o the transaction in which the stockholder became an interested
stockholder is approved by the board of directors prior to the date
the interested stockholder attained such status;
o upon consummation of the transaction that resulted in the
stockholder's becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction was commenced,
excluding those shares owned by persons who are directors and also
officers; or
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o on or subsequent to that date, the business combination is approved
by the board of directors and authorized at an annual or special
meeting of stockholders by the affirmative vote of at least
two-thirds of the outstanding voting stock that is not owned by the
interested stockholder.
This statute could prohibit or delay mergers or other takeover or
change-in-control attempts with respect to us and, accordingly, may discourage
attempts to acquire us.
Transfer Agent and Registrar. The transfer agent and registrar for our
common stock is Continental Stock Transfer & Trust Company and its address is 17
Battery Place, New York, New York 10004-1123.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
The validity of the shares of common stock covered by this registration
statement have been passed upon for us by Jenkens & Gilchrist, a Professional
Corporation, Dallas, Texas. Robert I. Schwimmer, a shareholder in that firm,
owns 105,556 shares of our common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's restated certificate of incorporation provides that the
Company shall indemnify its officers and directors in each and every situation
where, under Section 145 of the Delaware General Corporate Law, as amended from
time to time, or the DGCL, the Company is permitted or empowered to make such
indemnification. The Company may, in the sole discretion of its board of
directors, also indemnify any other person who may be indemnified pursuant to
Section 145 to the extent the board of directors deems advisable, as permitted
by Section 145.
Section 145 of the DGCL permits a corporation, under specified
circumstances, to indemnify its directors, officers, employees or agents against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by them in connection with any
action, suit or proceeding brought by third parties by reason of the fact that
they were or are directors, officers, employees or agents of the corporation, if
such directors, officers, employees or agents acted in good faith and in a
manner they 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 their conduct was unlawful. In an action by or in
the right of the corporation, indemnification may be made only for expenses
actually and reasonably incurred by directors, officers, employees or agents in
connection with the defense or settlement of any action or suit, and only with
respect to a matter as to which they shall have acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation, except that no indemnification shall be made if such person
shall have been adjudged liable to the corporation, unless and only to the
extent that the court in which the action or suit was brought shall determine
upon application that the defendant directors, officers, employees or agents are
fairly and reasonably entitled to indemnity for such expenses despite such
adjudication of liability.
The Company's restated certificate of incorporation contains a provision
that no director of the Company shall be personally liable to the Company or its
stockholders for monetary damages for breach of any fiduciary duty as a director
with certain exceptions required by Delaware law.
Article X of the Company's restated certificate of incorporation provides
as follows:
ARTICLE X
LIMITATION ON LIABILITY OF DIRECTORS;
INDEMNIFICATION OF DIRECTORS AND OFFICERS;
PERSONAL LIABILITY OF DIRECTORS
The Corporation shall indemnify each of the Corporation's directors
and officers in each and every situation where, under Section 145 of the
GCL, as amended from time to time ("Section 145"), the Corporation is
permitted or empowered to make such indemnification. The Corporation may,
in the sole discretion of the Board of Directors of the Corporation,
indemnify any other person who may be indemnified pursuant to Section 145
to the extent that the Board of Directors deems advisable, as permitted by
Section 145.
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No director shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, provided, however, that the foregoing shall not eliminate or
limit the liability of a director of the Corporation (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
GCL, or (iv) for any transaction from which the director derived an
improper personal benefit. If the GCL is subsequently amended to further
eliminate or limit the liability of a director, then a director of the
Corporation, in addition to the circumstances in which a director is not
personally liable as set forth in the preceding sentence, shall not be
liable to the fullest extent permitted by the amended GCL. For purposes of
this Article X, "fiduciary duty as a director" shall include any fiduciary
duty arising out of service at the Corporation's request as a director of
another corporation, partnership, joint venture or other enterprise, and
"personal liability to the Corporation or its stockholders" shall include
any liability to such other corporation, partnership, joint venture, trust
or other enterprise and any liability to the Corporation in its capacity
as a securityholder, joint venturer, partner, beneficiary, creditor or
investor of or in any such other corporation, partnership, joint venture,
trust or other enterprise.
Neither any amendment nor repeal of this Article X nor the adoption
of any provision of this Certificate of Incorporation inconsistent with
this Article X shall eliminate or reduce the effect of this Article X in
respect of any matter occurring, or any cause of action, suit or claim
that, but for this Article X, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
The Company's amended and restated bylaws also contain provisions
requiring the Company to indemnify its directors and officers to the fullest
extent not prohibited by the DGCL or other applicable law. These bylaw
provisions permit the Company to modify the extent of such indemnification by
individual contracts with its directors and officers. However, the Company is
not required to indemnify any director or officer in connection with any
proceeding initiated by the person unless the indemnification is expressly
required to be made by law, the proceeding was authorized by the board of
directors of the Company, the indemnification is provided by the Company, in its
sole discretion, pursuant to the powers vested in the Company under the DGCL or
any other applicable law, or the indemnification is required to be made under
other provisions in the bylaws. The bylaw provisions also empower the Company to
indemnify its employees and other agents as set forth in the DGCL or other
applicable law and to advance expenses to a director or officer in connection
with proceedings upon receipt of an undertaking by or on behalf of the person to
repay such amount if it is determined ultimately that the person is not entitled
to be indemnified. The bylaw provisions generally follow the existing provisions
of Section 145 of the DGCL.
Article XI of the Company's amended and restated bylaws provides as
follows:
ARTICLE XI
INDEMNIFICATION
Section 11.01 Indemnification Of Directors, Officers, Employees And Other
Agents.
(a) Directors And Officers. The corporation shall indemnify its directors
and officers to the fullest extent not prohibited by the DGCL or any other
applicable law; provided, however, that the corporation may modify the
extent of such indemnification by individual contracts with its directors
and officers; and, provided, further, that the corporation shall not be
required to indemnify any director or officer in connection with any
proceeding (or part thereof) initiated by such person unless (i) such
indemnification is expressly required to be made by law, (ii) the
proceeding was authorized by the Board of Directors of the corporation,
(iii) such indemnification is provided by the corporation, in its sole
discretion, pursuant to the powers vested in the corporation under the
DGCL or any other applicable law or (iv) such indemnification is required
to be made under subsection (d).
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(b) Employees and Other Agents. The corporation shall have power to
indemnify its employees and other agents as set forth in the DGCL or any
other applicable law. The Board of Directors shall have the power to
delegate the determination of whether indemnification shall be given to
any such person to such officers or other persons as the Board of
Directors shall determine, to the extent not prohibited by the DGCL.
(c) Expenses. The corporation shall advance to 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, by reason of the fact that he is or was a
director or officer, of the corporation, or is or was serving at the
request of the corporation as a director or executive officer of another
corporation, partnership, joint venture, trust or other enterprise, prior
to the final disposition of the proceeding, promptly following request
therefor, all expenses incurred by any director or officer in connection
with such proceeding upon receipt of an undertaking by or on behalf of
such person to repay said amounts if it should be determined ultimately
that such person is not entitled to be indemnified under this Section
11.01 or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to
paragraph (e) of this Section 11.01, no advance shall be made by the
corporation to an officer of the corporation (except by reason of the fact
that such officer is or was a director of the corporation in which event
this paragraph shall not apply) in any action, suit or proceeding, whether
civil, criminal, administrative or investigative, if a determination is
reasonably and promptly made (i) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to the
proceeding, or (ii) if such quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, that the facts known to the
decision-making party at the time such determination is made demonstrate
clearly and convincingly that such person acted in bad faith or in a
manner that such person did not believe to be in or not opposed to the
best interests of the corporation.
(d) Enforcement. Without the necessity of entering into an express
contract, all rights to indemnification and advances to directors and
officers under this Bylaw shall be deemed to be contractual rights and be
effective to the same extent and as if provided for in a contract between
the corporation and the director or officer. Any right to indemnification
or advances granted by this Section 11.01 to a director or officer shall
be enforceable by or on behalf of the person holding such right in any
court of competent jurisdiction if (i) the claim for indemnification or
advances is denied, in whole or in part, or (ii) no disposition of such
claim is made within ninety (90) days of request therefor. The claimant in
such enforcement action, if successful in whole or in part, shall be
entitled to be paid also the expense of prosecuting his claim. In
connection with any claim for indemnification, the corporation shall be
entitled to raise as a defense to any such action that the claimant has
not met the standards of conduct that make it permissible under the DGCL
or any other applicable law for the corporation to indemnify the claimant
for the amount claimed. In connection with any claim by an officer of the
corporation (except in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
executive officer is or was a director of the corporation) for advances,
the corporation shall be entitled to raise a defense as to any such action
clear and convincing evidence that such person acted in bad faith or in a
manner that such person did not believe to be in or not opposed to the
best interests of the corporation, or with respect to any criminal action
or proceeding that such person acted without reasonable cause to believe
that his conduct was lawful. Neither the failure of the corporation
(including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the
circumstances because he has met the applicable standard of conduct set
forth in the DGCL or any other applicable law, nor an actual determination
by the corporation (including its Board of Directors, independent legal
counsel or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that claimant has not met the applicable standard of conduct.
In any suit brought by a director or officer to enforce a right to
indemnification or to an advancement of expenses hereunder, the burden of
proving that the director or officer is not entitled to be indemnified, or
to such advancement of expenses, under this Section 11.01 or otherwise
shall be on the corporation.
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(e) Non-Exclusivity of Rights. The rights conferred on any person by this
Bylaw shall not be exclusive of any other right which such person may have
or hereafter acquire under any applicable statute, provision of the
Certificate of Incorporation, Bylaws, 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 office. The
corporation is specifically authorized to enter into individual contracts
with any or all of its directors, officers, employees or agents respecting
indemnification and advances, to the fullest extent not prohibited by the
Delaware General Corporation Law, or by any other applicable law.
(f) Survival of Rights. The rights conferred on any person by this Bylaw
shall continue as to a person who has ceased to be a director, officer,
employee or other agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(g) Insurance. To the fullest extent permitted by the DGCL or any other
applicable law, the corporation, upon approval by the Board of Directors,
may purchase insurance on behalf of any person required or permitted to be
indemnified pursuant to this Section 11.01.
(h) Amendments. Any repeal or modification of this Section 11.01 shall
only be prospective and shall not affect the rights under this Bylaw in
effect at the time of the alleged occurrence of any action or omission to
act that is the cause of any proceeding against any agent of the
corporation.
(i) Saving Clause. If this Bylaw or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director and officer to the
full extent not prohibited by any applicable portion of this Section 11.01
that shall not have been invalidated, or by any other applicable law. If
this Section 11.01 shall be invalid due to the application of the
indemnification provisions of another jurisdiction, then the corporation
shall indemnify each director and officer to the full extent under any
other applicable law.
(j) Certain Definitions. For the purposes of this Bylaw, the following
definitions shall apply:
(i) The term "proceeding" shall be broadly construed and shall
include, without limitation, the investigation, preparation, prosecution,
defense, settlement, arbitration and appeal of, and the giving of
testimony in, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative.
(ii) The term "expenses" shall be broadly construed and shall
include, without limitation, court costs, attorneys' fees, witness fees,
fines, amounts paid in settlement or judgment and any other costs and
expenses of any nature or kind incurred in connection with any proceeding.
(iii) The term "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 the provisions of this
Section 11.01 with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
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(iv) References to a "director," "executive officer," "officer,"
"employee," or "agent" of the corporation shall include, without
limitation, situations where such person is serving at the request of the
corporation as, respectively, a director, executive officer, officer,
employee, trustee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
(v) References to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on a
person with respect to an 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 an 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 interest 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 11.01.
The Company carries directors' and officers' liability insurance with
policy limit of $10 million. Directors and officers will be covered by liability
insurance indemnifying them against damages arising out of certain kinds of
claims that might be made against them based on their negligent acts or
omissions while acting in their capacity as such.
Mr. Emalfarb, Stephen J. Warner and Richard Berman, the Company's three
board members, are each parties to indemnification agreements pursuant to which
the Company agreed to indemnify them against any liability arising out of their
performance of their duties to the Company in their capacities as directors. The
agreements with Messrs. Emalfarb and Warner were entered into by Dyadic
International (USA), Inc., a Florida corporation ("Dyadic-Florida") on August
19, 2004 and assumed by the Company incident to the acquisition by the Company
of Dyadic-Florida by means of a merger consummated on October 29, 2004. Incident
to the consummation of the merger, they were amended to substitute applicable
Delaware law for any references contained in those agreements to Florida law.
The agreement with Mr. Berman was entered into directly with the Company in
January 2005 when he became a director. All of these indemnification agreements
indemnify the Company's directors in addition to the indemnification provided by
the Company's restated certificate of incorporation and amended and restated
bylaws. Among other things, these agreements indemnify the Company's directors
for certain expenses, including attorneys' fees, judgments, fines and settlement
amounts incurred by them in any action or proceeding, including any action by or
in the right of the Company arising out of such person's services to the Company
or to any of its subsidiaries or any other company or enterprise to which such
person provides services at its request. Further, the Company agrees to advance
expenses they spend as a result of any proceeding against them as to which they
could be indemnified. At present, there is no pending litigation or proceeding
involving any of the directors where indemnification will be required or
permitted, and the Company is not aware of any threatened litigation or
proceeding that may result in a claim for such indemnification.
The Company has been advised that, in the opinion of the SEC, any
indemnification for liabilities arising under the Securities Act of 1933 is
against public policy, as expressed in the Securities Act of 1933, and is,
therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
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ITEM 8. EXHIBITS
The following documents are filed as a part of this registration
statement.
Exhibit Description of Exhibit
------- ----------------------
4.1 Restated Certificate of Incorporation (incorporated herein by
reference to Exhibit 3.1 to the Company's Form 8-K filed with
the Commission on November 4, 2004)
4.2 Amended and Restated Bylaws (incorporated herein by reference
to Exhibit 4.2 of the Company's Form 8-K filed with the
Commission on November 4, 2004)
4.3 Form of Common Stock Certificate (incorporated herein by
reference to Exhibit 4.3 of the Company's Form 8-K filed with
the Commission on November 4, 2004)
4.4 Dyadic International, Inc. 2001 Equity Compensation Plan, as
amended by the Company (incorporated herein by reference to
Exhibit 10.9 to the Company's Form 8-K filed with the
Commission on November 4, 2004)
4.5 Second Amendment to Dyadic International, Inc. 2001 Equity
Compensation Plan (incorporated herein by reference to Exhibit
10.9.2 to the Company's Form 8-K/A filed with the Commission
on January 14, 2005)
*5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
*23.1 Consent of Jenkens & Gilchrist, a Professional Corporation
(included in opinion filed as Exhibit 5.1 hereto)
*23.2 Consent of Ernst & Young LLP
*23.3 Consent of Sherb & Co., LLP
24 Power of Attorney (included with signature page of this
Registration Statement)
- ------------------------
* Filed herewith
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 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.
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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.
10
C. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 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 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 Act and will be governed by the final adjudication of
such issue.
11
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 Jupiter, State of Florida, on January 27, 2005.
DYADIC INTERNATIONAL, INC.
By: /s/ Mark A. Emalfarb
-------------------------------------
Name: Mark A. Emalfarb
Title: Chief Executive Officer and President
POWER OF ATTORNEY
Know all persons by these presents that each individual whose signature
appears below constitutes and appoints Mark A. Emalfarb and Rufus Gardner and
each of them, his true and lawful attorneys-in-fact and agents with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
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 included:
/s/ Mark A. Emalfarb Director, Chief Executive Officer January 27, 2005
- ----------------------- and President
Mark A. Emalfarb (Principal Executive Officer)
/s/ Rufus Gardner Controller (Principal Financial January 27, 2005
- ----------------------- and Accounting Officer)
Rufus Gardner
/s/ Stephen J. Warner Director January 27, 2005
- -----------------------
Stephen J. Warner
/s/ Richard Berman Director January 27, 2005
- -----------------------
Richard Berman
12
INDEX TO EXHIBITS
Exhibit Description of Exhibit
------- ----------------------
4.1 Restated Certificate of Incorporation (incorporated herein by
reference to Exhibit 3.1 to the Company's Form 8-K filed with
the Commission on November 4, 2004)
4.2 Amended and Restated Bylaws (incorporated herein by reference
to Exhibit 4.2 of the Company's Form 8-K filed with the
Commission on November 4, 2004)
4.3 Form of Common Stock Certificate (incorporated herein by
reference to Exhibit 4.3 of the Company's Form 8-K filed with
the Commission on November 4, 2004)
4.4 Dyadic International, Inc. 2001 Equity Compensation Plan, as
amended by the Company (incorporated herein by reference to
Exhibit 10.9 to the Company's Form 8-K filed with the
Commission on November 4, 2004)
4.5 Second Amendment to Dyadic International, Inc. 2001 Equity
Compensation Plan (incorporated herein by reference to Exhibit
10.9.2 to the Company's Form 8-K/A filed with the Commission
on January 14, 2005)
*5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
*23.1 Consent of Jenkens & Gilchrist, a Professional Corporation
(included in opinion filed as Exhibit 5.1 hereto)
*23.2 Consent of Ernst & Young LLP
*23.3 Consent of Sherb & Co., LLP
24 Power of Attorney (included with signature page of this
Registration Statement)
- ------------------------
* Filed herewith
13