Registration No. _________
As filed with the Securities and Exchange Commission on November 25, 2008
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement
Under
The Securities Act of 1933
BALCHEM CORPORATION
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(Exact name of registrant as specified in its charter)
Maryland 13-2578432
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
P.O. Box 600, New Hampton, NY 10958
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(Address of Principal Executive Offices) (Zip Code)
Second Amended and Restated 1999 Stock Plan
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(Full title of the plan)
Dino A. Rossi, Chairman, President & Chief Executive Officer
Balchem Corporation, P.O. Box 600, New Hampton, NY 10958
(845) 326-5600
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(Name, address and telephone number of agent for service)
Copy to: Gary J. Simon, Esq.
Hughes Hubbard & Reed LLP, 1 Battery Park Plaza, New York, NY 10004-1482
(212) 837-6770
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
definitions of "large accelerated filer," "accelerated filer" and "smaller
reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer [_] Accelerated filer [X]
Non-accelerated filer [_] (Do not check if a smaller reporting company) Smaller reporting company [_]
CALCULATION OF REGISTRATION FEE
Title of
Securities Amount Proposed Maximum Proposed Amount of
to be to be Offering Price Maximum Aggregate Registration
Registered Registered (1) Per Share (2) Offering Price (2) Fee
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Common Stock,
par value 4,000,000 shares $21.88 $87,520,000 $3,459
$.06 2/3 per share
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(see footnotes on following page)
FOOTNOTES
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(1) This Registration Statement also relates to such indeterminate number
of additional shares as may be issuable pursuant to stock splits, stock
dividends, or similar transactions. Shares issuable under the Plan that
is the subject of this Registration Statement were previously
registered on Form S-8 (No. 333-78335 filed May 13, 1999 and No.
333-118292 filed August 17, 2004), in each case as adjusted for stock
splits.
(2) The proposed maximum offering price per share of Common Stock and the
proposed maximum aggregate offering price are calculated solely for the
purpose of determining the registration fee pursuant to Rule 457(h)
under the Securities Act of 1933. The fee is based on a price of $21.88
which is the average of the high and low sales prices of the Common
Stock on November 21, 2008 as quoted on the Nasdaq Global Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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The following documents filed by Balchem Corporation (the
"Company") under the Securities Exchange Act of 1934 (the "Exchange Act") are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 2007;
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 2008, June 30, 2008, and September 30, 2008;
(c) The Company's Current Reports on Form 8-K filed on January
3, 2008 and June 17, 2008; and
(d) The description of the Company's Common Stock contained in
the Company's registration statements therefor and subsequent
amendments thereof.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby 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 the filing of such documents.
Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained in a
subsequently filed document which is also incorporated by reference herein
modifies or supersedes such statement.
Item 4. Description of Securities
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Not applicable.
Item 5. Interests of Named Experts and Counsel
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Matthew D. Houston, General Counsel and Secretary of the
Company, has rendered an opinion as to the legality of the securities being
registered hereby. Mr. Houston is an employee of the Company, participates in
certain of the Company's benefit plans, and is eligible to be granted awards
with respect to the securities being registered hereby. He owns shares of the
Company's common stock and holds options to purchase shares of the Company's
common stock.
Item 6. Indemnification of Directors and Officers
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The Maryland General Corporation Law authorizes Maryland
corporations to limit the liability of directors and officers to the corporation
and its stockholders for money damages except (i) to the extent that it is
proved that the director or officer actually received an improper benefit or
profit in money, property or services, for the amount of the benefit or profit
actually received, (ii) to the extent that a judgment or other final
adjudication adverse to the director or officer is entered in a proceeding based
on a finding in the proceeding that the director's or officer's action, or
failure to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding, or (iii) in
respect of certain other actions not applicable to the Company. The Company's
Articles of Incorporation limits the liability of directors and officers to the
fullest extent permitted by the Maryland law.
The Maryland General Corporation Law also authorizes Maryland
corporations to indemnify present and past directors and officers of the
corporation or of another corporation for which they serve at the request of the
corporation against judgments, penalties, fines, settlements and reasonable
expenses (including attorneys' fees) actually incurred in connection with any
threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation in respect of which the director or officer is adjudged
to be liable to the corporation) in which they are made parties by reason of
being or having been directors or officers, unless it is proved that (i) the act
or omission of the director or officer was material to the matter giving rise to
the proceeding and was committed in bad faith or was the result of active and
deliberate dishonesty, (ii) the director or officer actually received an
improper personal benefit in money, property or services or (iii) in the case of
any criminal proceeding, the director or officer had reasonable cause to believe
that the act or omission was unlawful. The Maryland General Corporation Law also
provides that, unless limited by the corporation's charter, a corporation shall
indemnify present and past directors and officers of the corporation who are
successful, on the merits or otherwise, in the defense of any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, against reasonable expenses (including
attorneys' fees) incurred in connection with the proceeding. The Company's
Articles of Incorporation do not limit the extent of this indemnity.
Article XI of the Company's Bylaws provides as follows:
"INDEMNITY OF OFFICERS AND DIRECTORS. The corporation shall
indemnify and hold harmless each of its directors and officers against any and
all expenses actually and necessarily incurred in connection with the defense of
any action, suit or proceeding
to which such director or officer is made a party by reason of his being, or
having been, a director or officer of the corporation, except in relation to
matters as to which he shall be adjudged in such action, suit or proceeding to
be liable for gross negligence or misconduct in the performance of his duties as
such director or officer. In the event of settlement of such action, suit or
proceeding in the absence of such adjudication, indemnification shall include
reimbursement of amounts paid in settlement and expenses actually and
necessarily incurred by such director or officer in connection therewith, but
such indemnification shall be provided only if this corporation is advised by
its counsel that in his opinion such settlement is for the best interests of
this corporation and the director or officer to be indemnified has not been
guilty of gross negligence or misconduct in respect of any matter covered by
such settlement. Such right of indemnification shall not be deemed exclusive of
any other right, or rights, to which such director or officer may be entitled
under any agreement, vote of shareholders or otherwise."
The Company's directors and officers are covered by certain
insurance policies maintained by the Company.
Item 7. Exemption from Registration Claimed
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Not applicable.
Item 8. Exhibits
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See Exhibit Index.
Item 9. Undertakings
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(a) The Company 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 of 1933;
(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, represents a fundamental change in the information
set forth in the Registration Statement;
(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 (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to
the Securities and Exchange Commission by the Company pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company'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 Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in such Act and will be governed by the final adjudication
of such issue.
SIGNATURES
The Registrant. 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 New Hampton, State of New York, on
this 24th day of November, 2008.
BALCHEM CORPORATION
By: /s/ Dino A. Rossi
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Dino A. Rossi
Chairman, President & CEO
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities indicated on this 24th day of November, 2008.
Signature Capacity
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* Chairman, President and Chief Executive
-------------------------------- Officer and Director (Principal Executive
Dino A. Rossi Officer)
* Chief Financial Officer (Principal
-------------------------------- Financial and Accounting Officer)
Francis J. Fitzpatrick
* Director
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Edward L. McMillan
* Director
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Kenneth P. Mitchell
Signature Capacity
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* Director
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Perry W. Premdas
* Director
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John Y. Televantos
* Director
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Elaine R. Wedral
* By: /s/ Dino A. Rossi
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as authorized by Power of
Attorney filed as Exhibit 24.1
to this Registration Statement
EXHIBIT INDEX
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Number Description Method of Filing
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4.1 Composite Articles of Filed as Exhibit 3.1 to the Company's
Incorporation of the Company Annual Report on Form 10-K for the
year ended December 31, 2005
4.2 Amendment to Articles of Filed as Exhibit A to the Company's
Incorporation of the Company Definitive Proxy Statement for its
2008 Annual Meeting of
Stockholders, filed April 25, 2008
4.3 Composite Bylaws of the Filed as Exhibit 3.2 to the Company's
Company Current Report on Form 8-K filed
January 3, 2008
4.4 Second Amended and Restated Filed as Exhibit B to the Company's
1999 Stock Plan Definitive Proxy Statement for its
2008 Annual Meeting of
Stockholders, filed April 25, 2008
5.1 Opinion of Matthew D. Houston Filed herewith
23.1 Consent of Independent Filed herewith
Registered Public Accounting
Firm
23.2 Consent of Counsel Contained in Exhibit 5.1
24.1 Power of Attorney Filed herewith