Registration No. 333-_____
As filed with the Securities and Exchange Commission on October 31, 2002
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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E-Z-EM, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-1999504
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
717 Main Street
Westbury, New York 11590
(Address of Principal Executive Offices) (Zip Code)
E-Z-EM, Inc. 1983 Stock Option Plan
E-Z-EM, Inc. 1984 Directors and Consultants Stock Option Plan
E-Z-EM, Inc. Employee Stock Purchase Plan
(Full title of the plan)
Anthony A. Lombardo
E-Z-EM, Inc.
717 Main Street
Westbury, New York 11590
516-333-8230
(Telephone number, including area code, of agent for service)
Copies to:
Guy P. Lander, Esq.
Davies Ward Phillips & Vineberg LLP
625 Madison Avenue, 12th Floor
New York, New York 10022
Calculation of Registration Fee
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Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered Offering Price Per Share Aggregate Offering Price Registration Fee
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Common Stock 1,395,780 Shares(1)(3) $5.96(4) $8,318,849 $765.34
par value, $.10 per share 725,924 Shares(2)(3) $7.625(5) $5,535,171 $509.24
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Total 2,121,704 Shares $13,854,019 $1,274.58(6)
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(1) Consists of shares of Common Stock underlying options granted under the
1983 Stock Option Plan (the "1983 Plan") and the 1984 Directors and
Consultants Stock Option Plan (the "1984 Plan").
(2) Consists of shares of Common Stock underlying options that may be granted
under the 1983 Plan and the 1984 Plan, and shares of Common Stock that may
be issued under the Employee Stock Purchase Plan (the "Stock Purchase
Plan").
(3) In accordance with Rule 416 under the Securities Act of 1933 (the
"Securities Act"), there are also registered hereby such indeterminate
number of shares of Common Stock as may become issuable by reason of the
operation of the anti-dilution provisions of the 1983 Plan, the 1984 Plan,
and the Stock Purchase Plan.
(4) Pursuant to Rule 457(h) under the Securities Act, the proposed maximum
offering price per share was calculated for an aggregate of 1,395,780
shares of Common Stock issuable upon exercise of outstanding options
granted under the 1983 Plan and the 1984 Plan, based on an average
exercise price of $5.96 per share.
(5) Pursuant to Rule 457(c) and (h) under the Securities Act, for the purpose
of calculating the maximum aggregate offering price and the registration
fee, the proposed maximum offering price per share was determined based
upon the average of the high and low prices of the registrant's Common
Stock as reported by the American Stock Exchange on October 28, 2002.
(6) E-Z-EM, Inc. previously paid a registration fee of $1,518.00 upon the
filing of a registration statement on Form S-8 (Reg. No. 333-46600) on
September 26, 2000, relating to 800,000 shares of Class B Common Stock
issuable under the 1983 Plan, which offering of Class B Shares has been
terminated. Following the filing of this registration statement, E-Z-EM,
Inc. will withdraw from registration all 800,000 shares of Class B Common
Stock remaining unsold under the earlier registration statement, resulting
in an offset of $1,274.58 against the registration fee due for this
registration statement pursuant to Rule 457(p) under the Securities Act.
EXPLANATORY NOTE
In October 2002, the Company effected a recapitalization
("Recapitalization") by which all of its outstanding shares of Class A voting
common stock, par value $.10 per share ("Class A Shares"), and Class B
non-voting common stock, par value $.10 per share ("Class B Shares") were
converted on a one-for-one basis into shares of a single, newly created class of
common stock, par value $0.10 per share ("Common Stock").
Prior to the Recapitalization, the Company had filed registration
statements on Form S-8 (File Nos. 2-94563, 33-00184, 33-43168, 33-85010,
333-11325, and 333-46600) (the "Prior Registration Statements") relating to
shares of its common stock issuable under its 1983 Stock Option Plan, 1984
Directors and Consultants Stock Option Plan, and Employee Stock Purchase Plan
(collectively, the "Plans"). As a result of the Recapitalization and the terms
of the Plans, the shares of the Company's capital stock issuable under the Plans
(and registered under the Prior Registration Statements) were converted into
shares of Common Stock. Accordingly, the Company is filing this registration
statement for such shares of Common Stock and will thereafter withdraw from
registration all shares of its common stock previously registered that remain
unsold under the Prior Registration Statements.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
(the "Commission") by E-Z-EM, Inc. (the "Company" or the "Registrant") (File No.
1-11479) are incorporated herein by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
June 1, 2002, filed with the Commission on August 29, 2002.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
August 31, 2002, filed with the Commission on October 15, 2002.
(c) The Company's Definitive Proxy Statement on Schedule 14A, filed with
the Commission on September 13, 2002.
(d) The description of the Company's common stock, par value $0.10 per
share, contained in the Company's Registration Statement on Form
8-A, filed with the Commission on October 22, 2002.
(e) The Company's Current Reports on Form 8-K filed with the Commission
on October 15, 2002 and October 22, 2002.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act") prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities covered by this
Registration Statement have been sold or which deregisters all of the securities
then remaining unsold, will be deemed to be incorporated by reference in this
Registration Statement and to be a part of this document from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference in this document will be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained in this document or in any other subsequently filed
documents that also is or is deemed to be incorporated by reference in this
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document modifies or supersedes such statement. Any such statement so modified
or superseded will 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102 of the Delaware General Corporation Law, or DGCL, as amended,
allows a corporation to eliminate the personal liability of directors of a
corporation to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except where the director breached the
duty of loyalty, failed to act in good faith, engaged in intentional misconduct
or knowingly violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of the DGCL, or obtained an improper personal
benefit.
Section 145 of the DGCL provides, among other things, 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 action, suit or proceeding (other
than an action by or in the right of the corporation), by reason of the fact
that the person is or was a director, officer, agent or employee of the
corporation, or is or was serving at the corporation's request as a director,
officer, agent or employee of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit or proceeding, if such person
acted in good faith and in a manner he or she 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 or her
conduct was unlawful. The power to indemnify applies to actions brought by or in
the right of a corporation as well, but only to the extent of defense expenses,
including attorneys' fees, actually and reasonably incurred and not to any
satisfaction of judgment or settlement of the claim itself, and with the further
limitation that in such actions no indemnification shall be made in the event of
any adjudication of liability to the corporation, unless and only to the extent
that the court believes that in light of all the circumstances indemnification
should apply. Furthermore, under the DGCL, if a present or former officer or
director is successful on the merits or otherwise in the defense of any action,
suit or proceeding, referred to above, or in the defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith.
Section 174 of the DGCL provides, among other things, that a director who
willfully or negligently approves of an unlawful payment of dividends or an
unlawful purchase or redemption of stock may be held liable for such actions. A
director who was either absent when the unlawful actions were approved or
dissented at the time, may avoid liability by causing his or her dissent to such
actions to be entered in the books containing minutes of the meetings of the
board of directors at the time such action occurred or immediately after such
absent director receives notice of the unlawful acts.
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As permitted by the DGCL, the Company's certificate of incorporation
includes a provision eliminating the personal liability of its directors to the
Company and its stockholders for monetary damages for breach of their fiduciary
duties as directors, subject to the exceptions set forth in DGCL Section 102.
The Company's Bylaws provide that every person who is or was (i) a director,
officer, or employee of the Company or a constituent corporation absorbed in a
consolidation or merger, (ii) a director, officer, or employee of another
enterprise serving as such at the request of the Company or a constituent
corporation absorbed in a consolidation or merger, or (iii) a director, officer,
or employee of the Company serving at its request as an administrator, trustee
or other fiduciary of one or more benefit plans of the Company or another
enterprise, shall be indemnified for all expenses and liabilities reasonably
incurred in connection with any action, suit or proceeding involving such person
in such capacity 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 Company and,
with respect to any criminal action or proceeding had no reasonable cause to
believe his conduct was unlawful, to the extent that (a) such person is not
otherwise indemnified, and (b) such indemnification is permitted by applicable
law.
In May 2002, the Board of Directors formed a special committee of the
Board comprised of three independent outside directors (the "Committee") to
review, evaluate, negotiate and recommend to the full Board regarding a proposed
reclassification or combination of the Company's two classes of common stock
into a single class of common stock. Subsequently, by resolution of the Board of
Directors, the Company agreed to indemnify, to the fullest extent not prohibited
by the DGCL, each member of the Committee 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, based in
whole or in part on the fact that such person is or was a member of the
Committee ("Proceeding") from and against any and all expense incurred by such
member of the Committee in connection with such Proceeding, and agreed to pay
the expenses incurred by such member of the Committee in advance of the final
disposition of such action, suit or proceeding, within ten business days of
submission to the Company of such expenses by any member of the Committee, to
the fullest extent not prohibited by the DGCL.
The Company maintains a directors and officers liability insurance and
company reimbursement policy. The policy insures directors and officers against
unindemnified losses arising from certain wrongful acts in their capacities and
reimburses the Company for such losses for which the Company has lawfully
indemnified the directors and officers. The policy contains various exclusions,
none of which relate to the offering hereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Exhibit
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4.1 Restated Certificate of Incorporation of the Registrant, as amended
(incorporated by reference to Exhibit 3(i) to the Registrant's
Annual Report on Form 10-K for the fiscal year ended May 31, 1997
and to Exhibit 1 to the Registrant's
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Registration Statement on Form 8-A, filed with the Commission on
October 22, 2002)
4.2 Bylaws of the Registrant, as amended (incorporated by reference to
Exhibit 3(ii) to the Registrant's Annual Report on Form 10-K for the
fiscal year ended May 28, 1994, filed under Commission File No.
0-13003)
4.3 1983 Stock Option Plan of the Registrant, as amended through October
19, 1999 (incorporated by reference to Exhibit 3 to the Registrant's
Quarterly Report on Form 10-Q for the quarterly period ended
February 26, 2000)
4.4 1984 Directors and Consultants Stock Option Plan of the Registrant,
as amended through October 12, 1995 (incorporated by reference to
Exhibit 10(b) to the Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended December 2, 1995, filed under Commission
File No. 0-13003)
4.5 Employee Stock Purchase Plan of the Registrant, as amended through
September 30, 2002 (incorporated by reference to Exhibit 10 to the
Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended August 31, 2002)
5.1 Opinion of Davies Ward Phillips & Vineberg LLP
23.1 Consent of Grant Thornton LLP
23.2 Consent of Davies Ward Phillips & Vineberg LLP (included as part of
Exhibit 5.1)
24 Power of Attorney (set forth on the signature page of the
Registration Statement)
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:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities 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 the
Registration Statement; and
(iii) 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; provided,
however, that paragraphs 1(i) and 1(ii) do not apply if
the information required to be included in a
post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
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2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered hereby which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for the purposes
of determining any liability under the Securities Act, 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 hereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by 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
Securities Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on 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 Westbury, State of New York, on the 31st day of
October, 2002.
E-Z-EM, Inc.
By: /s/ Anthony A. Lombardo
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Anthony A. Lombardo, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Anthony A.
Lombardo and Dennis J. Curtin, and each of them, severally, acting alone and
without the other his or her true and lawful attorney-in-fact with authority to
execute in the name of each such person, and to file with the Securities and
Exchange Commission, together with any exhibits thereto and other documents
therewith, any and all amendments (including without limitation post-effective
amendments) to this Registration Statement necessary or advisable to enable the
Registrant to comply with the Securities Act of 1933, as amended, and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, which amendments may make such changes in this Registration
Statement as the aforesaid attorney-in-fact deems appropriate.
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
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/s/ Howard S. Stern Chairman of the Board and Director October 31, 2002
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Howard S. Stern
/s/ Anthony A. Lombardo President, Chief Executive Officer October 31, 2002
----------------------- and Director
Anthony A. Lombardo
/s/ Dennis J. Curtin Senior Vice President - October 31, 2002
----------------------- Chief Financial Officer
Dennis J. Curtin (Principal Financial
and Accounting Officer)
/s/ Michael A. Davis Director October 31, 2002
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Michael A. Davis
/s/ Paul S. Echenberg Director October 31, 2002
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Paul S. Echenberg
/s/ James L. Katz Director October 31, 2002
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James L. Katz
/s/ Donald A. Meyer Director October 31, 2002
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Donald A. Meyer
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/s/ David P. Meyers Director October 31, 2002
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David P. Meyers
/s/ George P. Ward Director October 31, 2002
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George P. Ward
/s/ Robert J. Beckman Director October 31, 2002
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Robert J. Beckman
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EXHIBIT INDEX
Exhibit
Number Exhibit
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4.1 Restated Certificate of Incorporation of the Registrant, as amended
(incorporated by reference to Exhibit 3(i) to the Registrant's
Annual Report on Form 10-K for the fiscal year ended May 31, 1997
and to Exhibit 1 to the Registrant's Registration Statement on Form
8-A, filed with the Commission on October 22, 2002)
4.2 Bylaws of the Registrant, as amended (incorporated by reference to
Exhibit 3(ii) to the Registrant's Annual Report on Form 10-K for the
fiscal year ended May 28, 1994, filed under Commission File No.
0-13003)
4.3 1983 Stock Option Plan of the Registrant, as amended through October
19, 1999 (incorporated by reference to Exhibit 3 to the Registrant's
Quarterly Report on Form 10-Q for the quarterly period ended
February 26, 2000)
4.4 1984 Directors and Consultants Stock Option Plan of the Registrant,
as amended through October 12, 1995 (incorporated by reference to
Exhibit 10(b) to the Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended December 2, 1995, filed under Commission
File No. 0-13003)
4.5 Employee Stock Purchase Plan of the Registrant, as amended through
September 30, 2002 (incorporated by reference to Exhibit 10 to the
Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended August 31, 2002)
5.1 Opinion of Davies Ward Phillips & Vineberg LLP
23.1 Consent of Grant Thornton LLP
23.2 Consent of Davies Ward Phillips & Vineberg LLP (included as part of
Exhibit 5.1)
24 Power of Attorney (set forth on the signature page of the
Registration Statement)