-----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, V3uRkWY/hTR5GoJ2QEAPHfiBc7SXbELCiP3LANtaJLTjsFSNLsLRFMb7dkcpjgpc UScHrK6GmNMYP4zOjo5oPQ== 0000891554-98-000075.txt : 19980119 0000891554-98-000075.hdr.sgml : 19980119 ACCESSION NUMBER: 0000891554-98-000075 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980116 EFFECTIVENESS DATE: 19980116 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: US HOME & GARDEN INC CENTRAL INDEX KEY: 0000879911 STANDARD INDUSTRIAL CLASSIFICATION: TEXTILE MILL PRODUCTS [2200] IRS NUMBER: 770262908 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-44459 FILM NUMBER: 98508709 BUSINESS ADDRESS: STREET 1: 655 MONTGOMERY ST STE 830 CITY: SAN FRANCISCO STATE: CA ZIP: 94111 BUSINESS PHONE: 4156168111 MAIL ADDRESS: STREET 1: 655 MONTGOMERY ST STREET 2: SUITE 830 CITY: SAN FRANCISCO STATE: CA ZIP: 94111 FORMER COMPANY: FORMER CONFORMED NAME: NATURAL EARTH TECHNOLOGIES INC DATE OF NAME CHANGE: 19930328 S-8 1 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on January 16, 1998. Registration No. 333-_______ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------- U.S. HOME & GARDEN INC. (Exact name of registrant as specified in its charter) Delaware 77-0262908 (State or other jurisdiction (I.R.S. Employer Identification No.) of incorporation or organization) 655 Montgomery Street, Suite 830, San Francisco, CA 94111 (Address of principal executive offices) (Zip Code) Non-Employee Director Stock Option Plan (Full title of the plan) Mr. Robert Kassel, President, U.S. Home & Garden Inc. 655 Montgomery Street, Suite 830, San Francisco CA 94111 (Name and address of agent for service) (415) 616-8111 (Telephone number, including area code, of agent for service) Copy to: Robert J. Mittman, Esq. Tenzer Greenblatt LLP 405 Lexington Avenue New York, New York 10174 Telephone: (212) 885-5000 Facsimile: (212) 885-5001 CALCULATION OF REGISTRATION FEE
Proposed Proposed Maximum Maximum Offering Aggregate Amount of Title of Securities Amount to Price Per Offering Registra- to be Registered be Registered Share(1) Price(1) tion Fee - ---------------- ------------- -------- -------- -------- Common Stock, par 100,000 shares $3.87 $387,000 $114.17 value $.001 per share(2)
(1) Estimated solely for the purposes of calculating the registration fee and based (a) as to the 30,000 shares of Common Stock issuable upon the exercise of options already granted under the registrant's Non-Employee Director Stock Option Plan ("Plan"), upon the average price at which such options may be exercised and (b) as to the remaining 70,000 shares of Common Stock issuable upon exercise of options reserved for issuance under the Plan, on the basis of the average of the high and low prices for the Common Stock as quoted on NASDAQ on January 12, 1998. (2) Pursuant to Rule 416, there are also being registered additional shares of Common Stock as may become issuable pursuant to the anti-dilution provisions of the Plan. - 2 - 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 Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933 and the Note to Part I of Form S-8. - 3 - PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents previously filed by the registrant with the Securities and Exchange Commission (the "Commission") are incorporated by reference in this Registration Statement: (1) The registrant's Annual Report on Form 10-K for the fiscal year ended June 30, 1997; (2) Form 10-K/A Amendment No. 1 to the registrant's Annual Report on Form 10-K for the fiscal year ended June 30, 1997; (3) Form 10-K/A, Amendment No. 2 to the registrant's Annual Report on Form 10-K for the fiscal year ended June 30, 1997; (4) The registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997; (5) The description of the registrant's common stock, par value $.001 per share (the "Common Stock"), contained in the registrant's Registration Statement on Form 8-A filed with the Commission on March 4, 1992, and any amendments thereto; and (6) All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered 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 respective date of filing of such documents. Any statement contained in a document incorporated by reference herein is modified or superseded for all purposes to the extent that a statement contained in this Registration Statement or in any other subsequently filed document which is incorporated by reference modifies or replaces such statement. Item 4. Description of Securities. Not applicable. II-1 Item 5. Interests of Named Experts and Counsel. The legality of the Common Stock offered hereby will be passed upon for the registrant by the law firm of Tenzer Greenblatt LLP. A partner of Tenzer Greenblatt LLP is the beneficial owner of shares of Common Stock and options and warrants to purchase shares of Common Stock. Certain other partners of Tenzer Greenblatt LLP also own shares of Common Stock and/or options to purchase Common Stock. Item 6. Indemnification of Directors and Officers. Sections 145 of the General Corporation Law of the State of Delaware provides for the indemnification of officers and directors under certain circumstances against expenses incurred in successfully defending against a claim and authorizes Delaware corporations to indemnify their officers and directors under certain circumstances against expenses and liabilities incurred in legal proceedings involving such persons because of their being or having been an officer or director. Section 102(b) of the Delaware General Corporation Law permits a corporation, by so providing in its certificate of incorporation, to eliminate or limit director's liability to the corporation and its stockholders for monetary damages arising out of certain alleged breaches of their fiduciary duty. Section 102(b)(7) provides that no such limitation of liability may affect a director's liability with respect to any of the following: (i) breaches of the director's duty of loyalty to the corporation or its stockholders; (ii) acts or omissions not made in good faith or which involve intentional misconduct of knowing violations of law; (iii) liability for dividends paid or stock repurchased or redeemed in violation of the Delaware General Corporation Law; or (iv) any transaction from which the director derived an improper personal benefit. Section 102(b)(7) does not authorize any limitation on the ability of the corporation or its stockholders to obtain injunctive relief, specific performance or other equitable relief against directors. Article Ninth of the registrant's Certificate of Incorporation and Article XVIII of the registrant's By-laws provide that all persons who the registrant is empowered to indemnify pursuant to the provisions of Section 145 of the General Corporation Law of the State of Delaware (or any similar provision or provisions of applicable law at the time in effect), shall be indemnified by the registrant to the full extent permitted thereby. The foregoing right of indemnification shall not be deemed to be exclusive of any other rights to which those seeking indemnification may be entitled under any by-law, agreement, vote of stockholders or disinterested directors, or otherwise. II-2 Article Tenth of the registrant's Certificate of Incorporation provides that no director of the registrant shall be personally liable to the registrant or its stockholders for any monetary damages for breaches of fiduciary duty as a director, provided that this provision shall not eliminate or limit the liability of a director (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) under Section 174 of the General Corporation Law of the State of Delaware; or (iv) for any transaction from which the director derived an improper personal benefit. Sections 7 and 8 of the Underwriting Agreement dated March 26, 1992 between the registrant and the underwriter of the registrant's initial public offering and Sections 6 and 7 of the Underwriting Agreement dated August 5, 1993 between the registrant and the underwriter of the registrant's 1993 public offering, and Section 7 of the Underwriting Agreement dated December 10, 1997 between the registrant and certain selling stockholders and the representatives of the underwriters of the registrant's 1997 public offering, provides for the indemnification of the registrant's officers, directors and control persons under certain circumstances. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit No. Description ----------- ----------- 4.1 Non-Employee Director Stock Option Plan of the registrant (the "Plan")* 5.1 Opinion of Tenzer Greenblatt LLP 23 Consent of BDO Seidman, LLP - -------- * Incorporated by reference to exhibit 10.5 filed with the registrant's Form 10-KSB for the fiscal year ended June 30, 1995. II-3 23.1 Consent of Tenzer Greenblatt LLP (included in Exhibit 5.1) 24.1 Powers of Attorney (included on Page II-6 of this 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: (2) 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. (3) 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. (4) 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. (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 referred to in Item 6 of Part II of this Registration Statement, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange II-4 Commission such indemnification is against public policy as expressed in the Securities Act of 1933 ("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. II-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 the City of San Francisco, State of California, on this 14th day of January, 1998. U.S. HOME & GARDEN INC. -------------------------------- (Registrant) By: /s/Robert Kassel ---------------------------- Robert Kassel, President Each person whose individual signature appears below hereby authorizes each of Robert Kassel and Richard Raleigh or either of them as his or her true and lawful attorney-in-fact with full power of substitution to execute in the name and on behalf of each person, individually and in each capacity stated below, and to file, any and all post-effective amendments to this Registration Statement. 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 date indicated. Signature Title Date --------- ----- ---- /s/Robert Kassel Chairman of the Board, January 14, 1998 - ------------------- President, Chief Executive Robert Kassel Officer and Treasurer (Principal Executive and Financial Officer) /s/Richard Raleigh Chief Operating Officer January 14, 1998 - ------------------- and Director Richard Raleigh /s/Maureen Kassel Vice President, January 14, 1998 - ------------------- Secretary and Director Maureen Kassel /s/Lynda Gustafson Vice President of January 14, 1998 - ------------------- Finance (Principal Lynda Gustafson Accounting Officer) /s/Fred Heiden Director January 14, 1998 - ------------------- Fred Heiden /s/Jon Schulberg Director January 14, 1998 - ------------------- Jon Schulberg II-6 Exhibit Index Exhibit No. Page Description ---- ----------- 4.1 Non-Employee Director Stock Option Plan of the registrant* 5.1 Opinion of Tenzer Greenblatt LLP 23 Consent of BDO Seidman LLP 23.1 Consent of Tenzer Greenblatt LLP (included in Exhibit 5.1) 24.1 Powers of Attorney (included on Page II-6 of the Registration Statement) - ----------- * Incorporated by reference to exhibit 10.5 filed with the registrant's Form 10-KSB for the fiscal year ended June 30, 1995. EX-5 2 OPINION OF TENZER GREENBLATT LLP January 14, 1998 U.S. Home & Garden Inc. 655 Montgomery Street San Francisco, CA 94111 Gentlemen: You have requested our opinion with respect to the offering by you, U.S. Home & Garden Inc., a Delaware corporation (the "Company"), pursuant to the provisions of the Company's Non-Employee Director Stock Option Plan (the "Plan") and a Registration Statement (the "Registration Statement") on Form S- 8, under the Securities Act of 1933, as amended (the "Act"), of up to 100,000 shares (the "Shares") of Common Stock, par value $.001 per share, of the Company (the "Common Stock"). We have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents and corporate and public records as we deem necessary as a basis for the opinion hereinafter expressed. With respect to such examination, we have assumed the genuineness of all signatures appearing on all documents presented to us as originals, and the conformity to the originals of all documents presented to us as conformed or reproduced copies. Where factual matters relevant to such opinion were not independently established, we have relied upon certificates of appropriate state and local officials, and upon certificates of executive officers and responsible employees and agents of the Company. Based upon the foregoing, it is our opinion that the Shares have been duly and validly authorized and, when sold, paid for and issued as contemplated by the Plan and the Registration Statement, will be duly and validly issued, fully paid and nonassessable. U.S. Home & Garden Inc. January 14, 1998 Page 2 Please be advised that certain partners of this firm are the beneficial owners of shares of Common Stock and options and warrants to purchase shares of Common Stock. We hereby consent to the use of this opinion as an Exhibit to the Registration Statement, and to the use of our name as your counsel in connection with the Registration Statement. In giving this consent, we do not thereby concede that we come within the categories of persons whose consent is required by the Act or the General Rules and Regulations promulgated thereunder. Very truly yours, /s/ TENZER GREENBLATT LLP -------------------------------- TENZER GREENBLATT LL EX-23 3 CONSENT OF ACCOUNTANTS EXHIBIT 23 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS U.S. Home & Garden Inc. San Francisco, California We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated August 1, 1997, except for Note 15 which is dated as of September 15, 1997, relating to the consolidated financial statements and schedule of U.S. Home & Garden Inc. appearing in the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1997. /s/ BDO Seidman, LLP ------------------------- BDO Seidman, LLP San Francisco, California January 14, 1998 -----END PRIVACY-ENHANCED MESSAGE-----