-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, V8ZFaBNTzJorEzegMWO3RzPHEDEmnhHAw2xIgDap7sSmYMs2Kb7cYS+czRGuAGYD pHc8dRHNBleKJPegdEBmLA== 0000950135-98-005186.txt : 19980923 0000950135-98-005186.hdr.sgml : 19980923 ACCESSION NUMBER: 0000950135-98-005186 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980922 EFFECTIVENESS DATE: 19980922 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: MACDERMID INC CENTRAL INDEX KEY: 0000061138 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS CHEMICAL PRODUCTS [2890] IRS NUMBER: 060435750 STATE OF INCORPORATION: CT FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-64007 FILM NUMBER: 98712996 BUSINESS ADDRESS: STREET 1: 245 FREIGHT ST CITY: WATERBURY STATE: CT ZIP: 06702 BUSINESS PHONE: 2035755700 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on September 22, 1998 Registration No. _________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 MACDERMID, INCORPORATED (Exact name of issuer as specified in its charter)
Connecticut 06-0435750 - -------------------------------------------------------------- ------------------------------------ (State or other jurisdiction of incorporation or organization) (I.R.S. employer identification no.)
245 FREIGHT STREET, WATERBURY, CONNECTICUT 06702 ------------------------------------------------ (Address of principal executive offices) MACDERMID, INCORPORATED STOCK OPTION PLAN (Full title of plans) ---------- DANIEL H. LEEVER Copy to: MACDERMID, INCORPORATED MICHAEL E. MOONEY, ESQ. 245 FREIGHT STREET NUTTER, MCCLENNEN & FISH, LLP WATERBURY, CONNECTICUT 06702 ONE INTERNATIONAL PLACE (203) 575-5700 BOSTON, MASSACHUSETTS 02110-2699 (Name, address and telephone (617) 439-2000 number of agent for service) ---------- CALCULATION OF REGISTRATION FEE
=============================================================================================================================== Proposed Title of each class of securities to be Amount being registered maximum offering Proposed maximum Amount of registered (1) price per share aggregate offering price registration fee Common Stock, no par value per share 1,500,000 Shares $24.41(2) $36,615,000 $10,801.43 ===============================================================================================================================
(1) This Registration Statement covers 1,500,000 shares of Common Stock underlying awards that may be granted pursuant to the Stock Option Plan. In addition, pursuant to Rule 416(b) under the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement also covers an indeterminate number of additional shares of Common Stock which may be issued under said Plans as a result of a stock dividend, stock split or other recapitalization. (2) Calculated pursuant to Rules 457(c) and (h) of the Securities Act as the average of the high and low prices per share of the registrant's Common Stock reported in the consolidated reporting system on September 15, 1998. ================================================================================ 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. MacDermid, Incorporated (the "Company") hereby incorporates by reference in this Registration Statement the following documents and information heretofore filed with the Securities and Exchange Commission (the "Commission"): (a) The Company's Annual Report on Form 10-K for the fiscal year ended March 31, 1998; (b) The Company's Quarterly Report on Form 10-Q for the quarterly period ended June 30, 1998; and (c) The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A (File No. 001-13889). All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of any post-effective amendment which indicates that all securities offered hereunder have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents. Any statement contained 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 any other subsequently-filed document which also is incorporated or deemed to be incorporated by 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. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Nutter, McClennen & Fish, LLP serves as counsel to the Company, and has rendered a legal opinion with respect to the validity of the shares being offered pursuant to this Registration Statement. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Connecticut Business Corporation Act, Sections 33-770 to 33-778, inclusive, and Article 11 of the registrant's by-laws, contain provisions authorizing indemnification by the registrant of directors, officers and employees of the registrant against certain liabilities and expenses which they may incur as directors, officers and employees of the registrant or of certain other corporations. Section 33-773 also provides that such indemnification may include payment by the registrant of expenses incurred in -2- 3 defending a proceeding in advance of the final disposition of such proceeding, upon certain representations being made by such indemnified person as to his or her good faith belief that he or she has met the relevant standard of conduct and upon agreement by the person indemnified to repay such payment if he or she shall be adjudicated not entitled to be indemnified under Sections 33-772, 33-774 or 33-775. Section 33-777 provides that the registrant may purchase and maintain insurance on behalf of an individual who is a director, officer, employee or agent of the corporation, or who, while a director, officer, employee or agent of the corporation, serves at the corporation's request as a director, officer, employee or agent of another entity against liability asserted against or incurred by such person in such capacity, whether or not the corporation would have power to indemnify or advance expenses to him against the same liability under Sections 33-770 to 33-778 inclusive. The Registrant maintains an officer's and director's liability insurance policy. ITEM 7. EXEMPTION FROM REGISTRATION. Not applicable. ITEM 8. EXHIBITS. See the exhibit index immediately preceding the exhibits attached hereto. 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. (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 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. -3- 4 (b) 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 a 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. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] -4- 5 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 Waterbury, Connecticut, on the 22nd day of September 1998. MACDERMID, INCORPORATED /s/ Daniel H. Leever By: ______________________________________ Daniel H. Leever President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons on behalf of the registrant in the capacities and on the dates indicated.
Signatures Title Date ---------- ----- ---- /s/ Daniel H. Leever President, Chief Executive Officer September 22, 1998 ___________________________ and Chairman of the Board Daniel H. Leever /s/ Gregory M. Bollingbroke Principal Financial and Accounting September 22, 1998 ___________________________ Officer and Controller Gregory M. Bolingbroke /s/ Harold Leever Director September 22, 1998 ___________________________ Harold Leever /s/ Donald G. Ogilvie Director September 22, 1998 ___________________________ Donald G. Ogilvie /s/ James C. Smith Director September 22, 1998 ___________________________ James C. Smith /s/ Thomas W. Smith Director September 22, 1998 ___________________________ Thomas W. Smith
-5- 6 EXHIBIT INDEX Exhibit No. Title - ----------- ----- 4 Stock Option Plan 5 Opinion of Nutter, McClennen & Fish, LLP 23.1 Consent of Nutter, McClennen & Fish, LLP (included in Exhibit 5) 23.2 Consent of KPMG Peat Marwick LLP -6- EX-4 2 MACDERMID, INCORPORATED STOCK OPTION PLAN 1 EXHIBIT 4 MACDERMID, INCORPORATED STOCK OPTION PLAN Dated July 6, 1998 1. PURPOSES. The purposes of the MacDermid, Incorporated Stock Option Plan (the "Plan") are (i) to enable MacDermid, Incorporated and its subsidiary corporations (hereinafter referred to, unless the context otherwise requires, as the "Company") to grant to its employees who are in a position to make a notable contribution to the welfare of the Company, the means to acquire a proprietary interest in the Company, in order that such persons will have additional long term financial incentives to contribute to the Company's growth and profitability, and (ii) to enhance the ability of the Company to attract and retain in its employ individuals of outstanding ability upon whom the success of the Company will depend. 2. ADMINISTRATION. The Plan shall be administered by a committee of not fewer than two members of the Board of Directors (the "Committee") appointed by the Board of Directors of the Company (the "Board"). Each member of the Committee shall be a "disinterested person" within the meaning of Rule 16b-3(b) under the Securities Exchange Act of 1934, as amended (the "Act") and an "outside director" within the meaning of Section 162(m)(4)(C)(i) of the Internal Revenue Code of 1986, as amended (the "Code"). The Committee may adopt such rules and regulations as it may deem necessary or advisable for the administration of the Plan. 3. GRANT OF AWARDS. Subject to the terms and provisions of the Plan, options to purchase shares of Common Stock of the Company shall be granted on behalf of the Company by the Committee. Subject to the terms of the Plan, the Committee may place restrictions on options granted, as the Committee deems appropriate. 4. SHARES SUBJECT TO THE PLAN. Subject to adjustment as provided herein, an aggregate of one million five hundred thousand (1,500,000) shares of the Common Stock of the Company (the "Common Stock"), shall be available for issuance pursuant to options granted under the Plan. Such shares may be authorized and unissued shares or shares held in the Company's treasury. All shares subject to options that shall have terminated or shall have been forfeited in whole or in part or cancelled for any reason (other than by surrender for cancellation upon any exercise of all or part of such options) shall be available for issuance pursuant to options granted subsequently under the Plan. In no event shall any employee receive, in any calendar year, options to purchase more than one million shares. 5. PARTICIPANTS. All key employees of the Company who are in a position to make a notable contribution to its welfare shall be eligible to receive options and thereby become participants in the Plan. Receipt of an option shall in no way be deemed to constitute a contract or promise of continued employment by the Company. 2 6. OPTION PRICE. The purchase price per share purchasable upon exercise of an option under the Plan shall be set by the Committee at a premium over the fair market value of such shares at the time the option is granted, with such premium to be determined by the Committee. 7. VESTING. Subject to shareholder approval, all options granted under the Plan shall vest in and become exercisable by the grantee immediately upon grant by the Committee, except as otherwise provided by the Committee at the time of grant. 8. OPTION PERIOD. Subject to Section 12, the period for exercising an option (the "Exercise Period") shall begin on the later of (i) the date of grant, and (ii) the date of approval of the Plan by the Company's shareholders, and shall end ten (10) years after the date of grant. Notwithstanding the foregoing, unless specifically determined otherwise by the Committee, the Exercise Period shall automatically terminate ninety (90) days after the grantee ceases to be employed by the Company on a full time basis, for any reason. 9. PAYMENT FOR SHARES AND RELATED MATTERS. Full payment for shares purchased, together with the amount of any tax or excise due in respect of the sale and issue thereof, shall be paid at the time of exercise of an option and shall be made in cash or by certified or bank cashier's check or, in the discretion of the Committee, in whole or in part by delivery of shares of Common Stock of the Company having a fair market value at the date of such delivery (determined in a manner approved by the Committee) of not less than the amount for which payment is being made by delivery of the shares. The Company shall issue no certificates for shares until (a) full payment therefor has been made and (b) the participant purchasing such shares provides for payment to (or withholding by) the Company of all amounts required under then applicable provisions of the Internal Revenue Code of 1986, as amended, and state and local tax laws to be withheld with respect to such purchase, and a participant shall have none of the rights of a stockholder until certificates for the shares purchased are issued to him or her. 10. NONTRANSFERABILITY. Unless specifically determined otherwise by the Committee, no option shall be assignable or transferable by a participant otherwise than by will or by the laws of descent and distribution or pursuant to a qualified domestic relations order as defined by the Internal Revenue Code of 1986, as amended, or Title I of the Employee Retirement Security Act of 1974, or the rules thereunder. Each option shall be exercisable during the lifetime of a participant only by such participant, except that, if permissible under applicable law, an option may also be exercised by the guardian or legal representative of a participant. 11. EFFECT OF CHANGES IN COMMON STOCK. In the event that the outstanding shares of Common Stock of the Company are increased or decreased as a result of a stock dividend, stock split, recapitalization or other means having the same effect, the number of shares available for issuance under the Plan, the number of shares issuable pursuant to any outstanding option, and the exercise price of any option outstanding under the Plan, shall be adjusted as the Committee shall deem appropriate, in its sole discretion, to preserve unimpaired the rights of the participants. All determinations made by the Committee hereunder shall be conclusive and binding upon the participants. -2- 3 12. EFFECT OF REORGANIZATION. In case of any one or more reclassifications, changes or exchanges of outstanding shares of Common Stock or consolidations of the Company with, or mergers of the Company into, other corporations, or other recapitalizations or reorganizations (other than consolidations with a subsidiary in which the Company is the continuing corporation and which do not result in any reclassifications, changes or exchanges of outstanding shares of Common Stock), or in case of any one or more sales or conveyances to another corporation of the property of the Company as an entirety, or substantially as an entirety, any and all of which are hereinafter in this Section called "Reorganizations," the Committee shall have the right to substitute in any previously granted options, the same kind and amount of securities and property which any participant would then have if such participant had exercised such option immediately before the first of any such Reorganizations and continued to hold all securities and property which came to such participant as a result of that and subsequent Reorganizations, less all securities and property surrendered or cancelled pursuant to any of same, the adjustment rights in Section 11 and this Section being continuing and cumulative. In any such event, such options may be exercised or converted, to the extent permitted by their terms, prior to or simultaneously with the consummation of such Reorganization. 13. EFFECTIVE DATE OF PLAN. Subject to the approval of the shareholders of the Company, the Plan shall be effective on July 6, 1998. Prior to such approval, options may be granted under the Plan expressly subject to such approval. 14. AMENDMENT AND TERMINATION MODIFICATION. The Board by resolution at any time may amend, suspend or terminate the Plan, provided that (i) no such action shall be taken which impairs the rights of any participant under any outstanding option, without such participant's consent, and (ii) no amendment shall be made without shareholder approval if such approval is necessary to comply with any applicable tax or regulatory requirement, including any requirements for exemptive relief under Section 16(b) of the Act, or any successor provision. The Committee may substitute new options for, or modify the terms of, options previously granted to participants, including, without limitation, previously granted options having higher exercise prices, provided that no such action shall be taken which impairs the rights of any participant under any outstanding option, without such participant's consent. 15. SECTION 16 EXEMPTION. The Committee shall take all reasonable measures to qualify for the exemption provided by Rule 16b-3 of the Act, the grant and exercise of options to acquire Common Stock by the Plan participants who are subject to Section 16 of the Act. The Committee and the Board shall have no authority to take any action if the authority to take such action, or the taking of such action, would disqualify the Plan from the exemption provided by Rule 16b-3 under the Act, and any successor provision. 16. INTERPRETATION. The interpretation and construction of any provision of the Plan and the adoption of rules and regulations for administering the Plan shall be made by the Committee. Determinations made by the Committee with respect to any matter or provision contained in the Plan shall be made in the Committee's sole discretion and shall be final, conclusive and binding upon the Company and upon all participants, their heirs and legal representatives. Any rule or regulation -3- 4 adopted by the Committee (whether under the authority of this Section or Section 2 above) shall remain in full force and effect unless and until altered, amended or repealed by the Committee. 4 EX-5 3 OPINION OF NUTTER, MCLENNAN & FISH 1 EXHIBIT 5 NUTTER, McCLENNEN & FISH, LLP ATTORNEYS AT LAW ONE INTERNATIONAL PLACE BOSTON, MASSACHUSETTS 02110-2699 TELEPHONE: 617-439-2000 FACSIMILE: 617-973-9748 CAPE COD OFFICE DIRECT DIAL NUMBER HYANNIS, MASSACHUSETTS September 22, 1998 MacDermid, Incorporated 245 Freight Street Waterbury, Connecticut 06702 Gentlemen/Ladies: Reference is made to the Registration Statement on Form S-8 (the "Registration Statement") which MacDermid, Incorporated (the "Company") is filing concurrently herewith with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), with respect to 1,500,000 shares of common stock, no par value per share (the "Common Stock"), issuable pursuant to the Stock Option Plan (the "Plan") and an indeterminate number of shares of such Common Stock which may be issued or become issuable under the Plan by reason of stock dividends, stock splits or other recapitalizations executed hereafter. We have acted as legal counsel for the Company in connection with adoption of the Plan, are familiar with the Company's Certificate of Incorporation and By-laws, both as amended to date, and have examined such other documents as we deemed necessary for this opinion. Based upon the foregoing, we are of the opinion that: 1. When issued and paid for in compliance with the terms of the Plan, the 1,500,000 shares of Common Stock referred to above will be duly and validly issued, fully paid and non-assessable; and 2. The additional shares of Common Stock which may become issuable under the Plan by reason of stock dividends, stock splits or other recapitalizations hereafter executed, if and when issued in accordance with the terms of the Plan and upon compliance with the applicable provisions of law and of the Company's Certificate of Incorporation and By-laws, both as amended to date, will be duly and validly issued, fully paid and non-assessable. We understand that this opinion letter is to be used in connection with the Registration Statement and hereby consent to the filing of this opinion letter with and as a part of the 2 MacDermid, Incorporated September 22, 1998 Registration Statement and of any amendments thereto. It is understood that this opinion letter is to be used in connection with the offer and sale of the aforesaid shares only while the Registration Statement, as it may be amended from time to time as contemplated by Section 10(a)(3) of the Securities Act, is effective under the Securities Act. Very truly yours, /s/ NUTTER, McCLENNEN & FISH, LLP MEM/NCH EX-23.2 4 CONSENT OF KPMG PEAT MARWICK LLP 1 EXHIBIT 23.2 The Board of Directors MacDermid, Incorporated: We consent to incorporation by reference in the registration statement on Form S-8 of MacDermid, Incorporated of our reports dated May 14, 1998, relating to the consolidated balance sheets of MacDermid, Incorporated and subsidiaries as of March 31, 1998, and 1997, and the related consolidated statements of earnings, cash flows and shareholders' equity for each of the years in the three-year period ended March 31, 1998, and the related schedule, which reports appear or are incorporated by reference in the March 31, 1998 annual report on Form 10-K of MacDermid, Incorporated. /s/ KPMG Peat Marwick LLP Hartford, Connecticut September 22, 1998 -----END PRIVACY-ENHANCED MESSAGE-----