As filed with the Securities and Exchange Commission on December 22, 2006
Registration No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
OCEAN BIO-CHEM, INC.
(EXACT NAME OF COMPANY AS SPECIFIED IN ITS CHARTER)
FLORIDA 59-1564329
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
4041 SW 47 Avenue, Fort Lauderdale, Florida 33314
(Address of Principal Executive Offices)
_______________________________
1992 INCENTIVE STOCK OPTION PLAN
(full title of Plan)
Peter G. Dornau, President
Ocean Bio-Chem, Inc.
4041 SW 47 Avenue
Fort Lauderdale, Florida 33314
(Name and Address of Agent for Service)
(954) 587-6280
(Telephone Number, including Area Code of Agent for Service)
CALCULATION OF REGISTRATION FEE
______________________________________________________________________________
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share(2) Market Price Fee
_____________________________________________________________________________
Ocean Bio-Chem, Inc.
$.01 par value 143,000 $2.10 $300,000 $103.45
Common Stock
______________________________________________________________________________
(1) This Registration Statement also registers the offer and sale of an
indeterminate number of additional shares of Common Stock of the Company that
may be issuable as a result of stock splits, stock dividends, recapitalizations,
mergers, reorganizations, combinations or exchanges of shares or other similar
events.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457, promulgated under the Securities Act of
1933, as amended, and based on the average high and low sales price of the Ocean
Bio-Chem, Inc. Common Stock on December 19, 2006.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE UPON FILING WITH THE
SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") IN ACCORDANCE WITH SECTION
8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, AND RULES 456 AND 462
PROMULGATED THEREUNDER.
EXPLANATORY NOTE
Ocean Bio-Chem, Inc. ("we," "us" or the "Company") has prepared this
Registration Statement in accordance with the requirements of Form S-8 under the
Securities Act of 1933, as amended (the "Act"), to register shares of Common
Stock, $.01 par value, of the Company issued to executive officers, directors
and employees of the Company pursuant to the Company's 1992 Incentive Stock
Option Plan (the "Plan").
This Registration Statement contains two parts. The first part contains a
Reoffer Prospectus prepared in accordance with the requirements of Part I of
Form S-3 pursuant to Section C of the General Instructions to Form S-8. The
Reoffer Prospectus may be used for reofferings and resales on a continuous or
delayed basis in the future of "control securities" which have been issued
pursuant to the Plan to executive officers, directors and employees of the
Company who may be considered affiliates as defined by Rule 405 under the Act.
The second part contains "Information Required in the Registration
Statement" pursuant to Part II of Form S-8. Pursuant to the Note to Part I of
Form S-8, the information relating to the Plan specified by Part I is not filed
with the Securities and Exchange Commission (the "SEC"), but documents
containing such information have been or will be sent or given to employees and
directors as specified by Rule 428(b)(1). Such document(s) are not being filed
with the SEC but constitute (along with the documents incorporated by reference
into the Registration Statement pursuant to Item 3 of Part II hereof) a
Prospectus that meets the requirements of Section 10(a) of the Act.
PART I
Item 1. Plan Information
The documents containing the information specified in Item 1 will be sent
or given to participants in the 1992 Incentive Stock Option Plan, as amended, as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). Such documents are not required to be and are not filed with
the Securities and Exchange Commission (the "SEC") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
Item 2. Company Information and Employee Plan Annual Information.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees, non-employee directors and
consultants, pursuant to Rule 428(b) are available without charge by contacting:
Edward Anchel
Ocean Bio-Chem, Inc.
4041 SW 47th Avenue
Fort Lauderdale, FL 33314
(954) 587-6280
2
REOFFER PROSPECTUS
Ocean Bio-Chem, Inc.
143,000 Shares of Common Stock
----------------------
This prospectus relates to up to 143,000 shares of common stock of Ocean
Bio-Chem, Inc., ("we," "our," "us," or the "Company") which may be offered and
sold from time to time by certain executive officers, directors, and others
named herein (the "selling stockholders") who have acquired such shares pursuant
to the exercise of qualified incentive stock options that have been granted to
each of them under our 1992 Incentive Stock Option Plan. The shares may be
offered by the selling stockholders from time to time in regular brokerage
transactions, in transactions directly with market makers or in certain
privately negotiated transactions. For additional information on the methods of
sale, you should refer to the section entitled "Plan of Distribution." We will
not receive any of the proceeds from the sale of the shares by the selling
stockholders.
The shares are being reoffered and sold for the account of the selling
stockholders and we will not receive any of the proceeds from the resale of the
shares. All expenses of the registration of securities covered by this
Prospectus are to be borne by the Company, except that the selling stockholders
will pay underwriting discounts, selling commissions, and fees and the expenses,
if any, of counsel or other advisers to the selling stockholders.
Our common stock is traded on the NASDAQ Capital Market ("NASDAQ") under
the symbol "OCBI." The last reported sale price of the shares as reported on
NASDAQ was $2.07 per share on December 19, 2006. Our principal executive offices
are located at 4041 SW 47th Avenue, Ft. Lauderdale, Florida 33314 and our
telephone number there is (954) 587-6280.
The common stock offered hereby involves a high degree of risk. You should
not invest in the Company unless you can afford to lose your entire investment.
See "Risk Factors" beginning on page 5 of this Prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This Prospectus is dated December 22, 2006.
3
TABLE OF CONTENTS
Page
Forward Looking Statements 5
The Company 5
Risk Factors 5
Use of Proceeds 7
Selling Stockholders 7
Plan of Distribution 9
Legal Matters 10
Experts 10
Additional Information Available to You 10
Incorporation of Certain Documents by Reference 11
No dealer, salesperson or other person has been authorized to give any
information or to make any representation not contained in this Prospectus and,
if given or made, such information or representation must not be relied upon as
having been authorized by Ocean Bio-Chem, Inc. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any of the
securities offered hereby in any jurisdiction to any person to whom it is
unlawful to make such offer in such jurisdiction. Neither the delivery of this
Prospectus nor any sale made under this Prospectus shall under any
circumstances, create any implication that there have not been changes in the
affairs of Ocean Bio-Chem, Inc. since the date of this Prospectus.
4
FORWARD-LOOKING STATEMENTS
Certain written and oral statements made by us may constitute
"forward-looking statements" as defined in the Private Securities Litigation
Reform Act of 1995 (the "Reform Act"). Forward-looking statements are identified
by such words and phrases as "we expect," "expected to," "estimates,"
"estimated," "current outlook," "we look forward to," "would equate to,"
"projects," "projections," "projected to be," "anticipates," "anticipated," "we
believe," "could be," and other similar phrases. All statements addressing
operating performance, events, or developments that we expect or anticipate will
occur in the future, including statements relating to revenue growth, earnings,
earnings-per-share growth, or similar projections, are forward-looking
statements within the meaning of the Reform Act. Because they are
forward-looking, they should be evaluated in light of important risk factors.
These risk factors include, but are not limited to, those that are described in
the "Risk Factors" section of this Prospectus found at page 5.
THE COMPANY
We are principally engaged in the manufacturing, marketing and distribution
of a broad line of appearance and maintenance products for boats, recreational
vehicles, automotive and aircraft under the "Star Brite" name within the United
States of America and Canada. In addition, we produce private label formulations
of many of our products for various customers as well as custom blending and
packaging services of these and other products to customer specifications.
Our marine products and recreational vehicle products are sold through
national mass merchandisers such as Wal-Mart and Home Depot and through
specialized marine retailers such as West Marine and Boater's World. Our
customers also include distributors who in turn sell our products to specialized
retail outlets for a specific market.
RISK FACTORS
Before you invest in our common stock, you should consider carefully the
following risk factors and cautionary statements, as well as other information
set forth in and incorporated by reference into this prospectus. If any of the
following risks actually occur, our business, financial condition or results of
operation may suffer. As a result, the trading price of our common stock could
decline, and you could lose a substantial portion of the money you paid to buy
our common stock. The risks and uncertainties we describe below are not the only
ones we face. Additional risks and uncertainties that we do not currently know
or that we currently believe to be immaterial may also adversely affect our
business.
We may be unable to pass on to our customers the increases in the costs of
our raw materials.
The prices of many of our raw materials vary with market conditions. In
addition the price of many of the Company's finished goods is impacted by
changes in currency, freight costs and raw materials at the point of production.
Our costs of raw materials and fuel-related costs are currently higher than
historical averages and may remain so indefinitely due to the historically high
price of oil and gas. Although we generally attempts to pass on increases in the
costs of raw materials and fuel-related costs to its customers, our ability to
pass these increases on varies depending on the product line, rate and magnitude
of any increase. There may be periods of time during which increases in these
costs cannot be recovered as occurred in fiscal 2005. During such periods of
time, our profitability may be materially adversely affected.
5
A small number of our customers accounted for a substantial portion of our
revenues, and the loss of one or more of these key customers could significantly
reduce our revenues and cash flow.
Our five largest customers represented approximately 43% and 55%, of
consolidated gross revenues for the years ended December 31, 2005 and 2004,
respectively; and 26% and 77% of consolidated accounts receivable at December
31, 2005 and 2004, respectively. We have had a longstanding relationship with
each of these entities and have always collected open receivable balances. Any
significant reduction in business with any of these customer could have a
material adverse effect on the financial position and results of operations of
our business..
We are engaged in a competitive business and if we do not adequately
compete with our competitors, it could have a material adverse effect on our
operating results and financial condition.
We are engaged in a very competitive business. We have several competitors
in the marine and automotive market places, both national and regional. The
competition is based on brand recognition, price, service and the ability to
deliver products on a timely basis. Many of our competitors are larger and have
greater resources and access to capital than the Company. In order to maintain
the Company's competitive position, we will need to continue to develop new
products and expand its customer base both domestically and internationally.
Competitive pressures may also result in decreased demand for the Company's
products. Any of these factors could have a material adverse effect on the
Company.
If we lose key management or are unable to attract and retain the talent
required for our business, our operating results and financial condition could
suffer.
Our future performance is substantially dependent upon the continued
services of certain members of our senior management. We do not maintain
significant key man life insurance for any of these executives. The loss of the
services of any key members of senior management could have a material adverse
effect upon us. In addition, our continued growth depends on our ability to
attract and retain skilled executives. There can be no assurance that we will be
able to retain our existing personnel or attract additional qualified executives
in the future or that our current management team can achieve our planned
expansion or continue to operate our Company in a profitable manner.
A significant portion of our common stock is held by Peter Dornau, our
co-founder, Chief Executive Officer, President and Chairman, whose interests may
differ from that of our other stockholders.
Peter Dornau, our co-founder, Chief Executive, President and Chairman
beneficially owns approximately 57% of our issued and outstanding common stock
(approximately 61% assuming the contemplated sale of all eligble shares and
including options or warrants exercisable within sixty (60) days). As a result,
Mr. Dornau has substantial influence in the election of directors of and, in
general, the outcome of any matter submitted to a vote of our stockholders,
including mergers, consolidations or the sale of all or substantially all of our
assets. Due to his significant ownership position, Mr. Dornau may be able, in
concert with others, to prevent or to cause a change in control of our company.
6
Our inability to maintain access to the debt and capital markets may
adversely affect our business and financial results.
Our ability to invest in our business, refinance maturing debt obligations
and make strategic acquisitions may require access to sufficient bank credit
lines and capital markets to support short-term borrowings and cash
requirements. If our current level of cash flow is insufficient and we are
unable to access additional resources, we could experience a material adverse
affect on our business and financial results.
We have debt service obligations which are subject to restrictive covenants
that limit our flexibility to manage our business and could trigger an
acceleration of our outstanding indebtedness.
Our credit facilities require that we maintain specific financial ratios
and comply with certain covenants, including various financial covenants that
contain numerous restrictions on our ability to incur additional debt, pay
dividends or make other restricted payments, sell assets, or take other actions.
Furthermore, our existing credit facilities are, and future financing
arrangements are likely to be, secured by substantially all of our assets. If we
breach any of these covenants, a default could result under one or more of these
agreements. We have in the past violated certain covenants under its credit
facilities. A default, if not waived by our lenders, could result in the
acceleration of outstanding indebtedness and cause our debt to become
immediately due and payable.
Our business is influenced by the weather and bad weather conditions could
impact our sales
Certain aspects of the Company's business, primarily in the marine industry
are greatly influenced by the economy and the weather. A bad economy directly
impacts our sales to the recreational boating public and cold or other inclement
weather either delays the start or shortens the length of the boating season and
has an adverse impact on our sales.
USE OF PROCEEDS
All of the shares of common stock are being offered by the selling
stockholders. We will not receive any proceeds from the sale of the shares by
the selling stockholder.
SELLING STOCKHOLDERS
The following table also sets forth the name of each person who is offering
the resale of shares of common stock by this prospectus, the number of shares of
common stock beneficially owned by each person, the number of shares of common
stock that may be sold in this offering and the number of shares of common stock
each person will own after the offering, assuming they sell all of the shares
offered.
7
Number of Number of Options Number of
shares offered shares owned exercisable shares Percentage
by the Selling after exercise within 60 owned after of shares
Name Position Plan Stockholders (1) of options (2) days of S-8 the offering (3) Owned (4)
Peter G. President, 1992 27,500 4,377,568 1,155,000 5,505,068 60.87%
Dornau Chief
Executive
Officer and
Director
Edward Vice 1992 27,500 283,451 40,000 295,951 3.27%
Anchel President-Finance,
Chief Financial
Officer and Director
Jeffrey J. Vice 1992 27,500 259,280 155,000 386,780 4.28%
Tieger President,
Secretary
and Director
Gregor M. Vice 1992 22,000 235,780 36,000 249,780 2.76%
Dornau President
Jean Paul 1992 11,000 37,000 16,000 42,000 0.46%
Kitzinger
Jerry Pittman 1994 27,500 38,309 20,000 30,309 0.34%
--------------------------------------
(1) Represents the number of shares purchased under the Plan by such person
and registered for sale.
(2) For each selling stockholder this includes (i) shares of our Common
Stock owned as of December 19, 2006, (ii) shares of our Common Stock underlying
options which are exercisable within sixty (60) days of December 19, 2006, and
(iii) shares of our Common Stock underlying options granted by the company,
whether or not exercisable as of, or within sixty (60) days of December 19,
2006.
(3) Assumes the sale of all shares eligible to be sold and includes options
exercisable within sixty (60) days.
(4) Percentages are after the contemplated sale of all shares eligible to
be sold and including options exercisable within sixty (60) days.
8
PLAN OF DISTRIBUTION
The shares being offered by the selling stockholders will be sold from time
to time in one or more transactions (which may involve block transactions) that
may take place in The NASDAQ Capital Market, including ordinary brokers'
transactions, privately negotiated transactions or through sales to one or more
dealers for resale of such securities as principals, at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. Usual and customary or specifically negotiated brokerage fees
or commissions may be paid by the selling stockholders. The shares may also be
sold pursuant to Rule 144 under the Securities Act. The selling stockholders
have the sole and absolute discretion not to accept any purchase offer or make
any sale of shares if they deem the purchase price to be unsatisfactory at any
particular time.
The selling stockholders may also sell the shares directly to market makers
acting as principals and/or broker-dealers acting as agents for themselves or
their customers. Such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the selling stockholders and/or the
purchasers of shares for whom such broker-dealers may act as agents or to whom
they sell as principal, or both, which compensation as to a particular
broker-dealer might be in excess of customary commissions. Market makers and
block purchasers purchasing the shares will do so for their own account and at
their own risk. It is possible that a selling stockholder will attempt to sell
shares of common stock in block transactions to market makers or other
purchasers at a price per share which may be below the then market price.
The selling stockholders and intermediaries through whom such securities
are sold may be deemed "underwriters" within the meaning of the Securities Act,
with respect to the securities offered hereby, and any profits realized or
commissions received may be deemed underwriting compensation. We have agreed to
indemnify the selling stockholders against certain liabilities, including
liabilities under the Securities Act.
The selling stockholders, alternatively, may sell all or any part of the
shares offered by this Prospectus through an underwriter. To our knowledge, no
selling stockholder has entered into an agreement with a prospective
underwriter. If any selling stockholder notifies us that it has entered into an
agreement or agreements with a broker-dealer or underwriter for the resale of
the common stock, the relevant details will be set forth in a supplement or
revision to this Prospectus.
The selling stockholders and any other persons participating in the sale or
distribution of the shares will be subject to applicable provisions of the
Securities Exchange Act of 1934 and the rules and regulations thereunder,
including, without limitation, Regulation M, which may restrict certain
activities of, and limit the timing of purchases and sales of any of the shares
by the selling stockholders or any other such person. Furthermore, under
Regulation M, persons engaged in a distribution of securities are prohibited
from simultaneously engaging in market making and certain other activities with
respect to such securities for a specified period of time prior to the
commencement of such distributions, subject to specified exceptions or
exemptions. All of these limitations may affect the marketability of the shares.
9
LEGAL MATTERS
One of our directors, Laz. Schneider is a partner at Berger Singerman,
P.A., a law firm that serves as our lead counsel in various corporate and
litigation matters. Mr. Schneider is the holder of options to purchase 40,000
shares of our common stock. All of these options are fully vested. The average
exercise price of the options is $1.21 and the expiration dates are from 2012 to
2016.
EXPERTS
Our financial statements for the fiscal years ended December 31, 2005 and
2004 appearing in this Prospectus and registration statement have been audited
by Levi Cahlin & Co., our former independent registered public accounting firm,
as set forth in their report appearing elsewhere herein, and are included in
reliance upon the report given on the authority of the firm as experts in
accounting and auditing. Our consolidated statements of operations,
shareholders' equity, and cash flows for the year ended December 31, 2003
appearing in this Prospectus and registration statement have been audited by
Berkovits, Lago and Company, LLP, our former independent registered public
accounting firm, as set forth in their report appearing elsewhere herein, and
are included in reliance upon the report given on the authority of the firm as
experts in accounting and auditing.
ADDITIONAL INFORMATION AVAILABLE TO YOU
This Prospectus is part of a Registration Statement on Form S-8 that we
filed with the SEC. Certain information in the Registration Statement has been
omitted from this prospectus in accordance with the rules of the SEC. We file
annual, quarterly and special reports, proxy statements and other information
with the SEC. You can inspect and copy the Registration Statement as well as
reports, proxy statements and other information we have filed with the SEC at
the public reference room maintained by the SEC at 100 F Street N.E. Washington,
D.C. 20549. You can obtain copies from the public reference room of the SEC at
100 F Street N.E. Washington, D.C. 20549, upon payment of certain fees. You can
call the SEC at 1-800-732-0330 for further information about the public
reference room. We are also required to file electronic versions of these
documents with the SEC, which may be accessed through the SEC's World Wide Web
site at http://www.sec.gov. No dealer, salesperson or other person is authorized
to give any information or to make any representations other than those
contained in this Prospectus, and, if given or made, such information or
representations must not be relied upon as having been authorized by us. This
Prospectus does not constitute an offer to buy any security other than the
securities offered by this Prospectus, or an offer to sell or a solicitation of
an offer to buy any securities by any person in any jurisdiction where such
offer or solicitation is not authorized or is unlawful. Neither delivery of this
Prospectus nor any sale hereunder shall, under any circumstances, create any
implication that there has been no change in the affairs of our company since
the date hereof.
10
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to 'incorporate by reference' the information into this
Prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
that we incorporate by reference is considered to be part of this Prospectus.
Because we are incorporating by reference our future filings with the SEC, this
Prospectus is continually updated and those future filings may modify or
supersede some or all of the information included or incorporated in this
Prospectus. This means that you must look at all of the SEC filings that we
incorporate by reference to determine if any of the statements in this
Prospectus or in any document previously incorporated by reference have been
modified or superseded. This Prospectus incorporates by reference the documents
listed below and any future filings we will make with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until the
selling stockholders sell all of our common stock registered under this
Prospectus:
- Our Annual Report on Form 10-K for the year ended December 31, 2005
filed with the SEC on March 30, 2006;
- Our Annual Report on Form 10-K/A for the year ended December 31, 2005
filed with the SEC on August 31, 2006;
- Our Proxy Statement for the Annual Meeting of Shareholders held on June
15, 2006 filed with the SEC on April 21, 2006;
- Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2006
filed with the SEC on May 16, 2005;
- Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2006
filed with the SEC on August 15, 2006;
- Our Quarterly Report on Form 10-Q for the quarter ended September 30,
2006 filed with the SEC on November 14, 2006;
- Our Current Reports on Form 8-K filed with the SEC on March 10, 2006;
August 14, 2006, September 1, 2006, November 13, 2006, November 21, 2006 and
Form 8-K/A filed on November 30, 2006;
- The description of our common stock contained in our Registration
Statement on Form S-18 filed on March 26, 1981, including any amendments or
reports filed for the purpose of updating that description; and
- All documents filed by us pursuant to Section 13(a), 13(c), 14, or 15(d)
of the Securities Exchange Act of 1934, as amended (the "1934 Act") subsequent
to the date of this Prospectus and before the termination of this offering shall
be deemed to be incorporated by reference and a part of this Prospectus from the
date on which such documents are filed.
11
The information about us contained in this Prospectus should be read
together with the information in the documents incorporated by reference. You
may request a copy of any or all of these filings, at no cost, by writing or
telephoning us at. Ocean Bio-Chem, Inc., 4041 SW 47th Avenue, Fort Lauderdale,
Florida 33314, (954) 587-6280.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company hereby incorporates by reference into this Registration
Statement the documents listed below. In addition, all documents subsequently
filed pursuant to Sections 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 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 into this Registration Statement and to be a part
hereof from the date of the filing of such documents:
- Our Annual Report on Form 10-K for the year ended December 31, 2005
filed with the SEC on March 30, 2006;
- Our Annual Report on Form 10-K/A for the year ended December 31, 2005
filed with the SEC on August 31, 2006;
- Our Proxy Statement for the Annual Meeting of Shareholders held on June
15, 2006 filed with the SEC on April 21, 2006;
- Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2006
filed with the SEC on May 16, 2005;
- Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2006
filed with the SEC on August 15, 2006;
- Our Quarterly Report on Form 10-Q for the quarter ended September 30,
2006 filed with the SEC on November 14, 2006;
- Our Current Reports on Form 8-K filed with the SEC on March 10, 2006;
August 14, 2006, September 1, 2006, November 13, 2006, November 21, 2006 and
Form 8-K/A filed on November 30, 2006;
- The description of our common stock contained in our Registration
Statement on Form S-18 filed on March 26, 1981, including any amendments or
reports filed for the purpose of updating that description;
- The description of our Common Stock contained in our Registration
Statement on Form S-18 filed on March 26, 1981, including amendments and reports
filed updating that description.
12
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 herein, or in a subsequently
filed document 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 part of this Registration
Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
One of our directors, Laz. Schneider is a partner at Berger Singerman,
P.A., a law firm that serves as our lead counsel in various corporate and
litigation matters. Mr. Schneider is the holder of options to purchase 40,000
shares of our common stock. All of these options are fully vested. The average
exercise price of the options is $1.21. The expiration dates are from 2012 to
2016.
Item 6. Indemnification of Directors and Officers.
The Company's By-laws provide that it shall indemnify its officers and
directors and former officers and directors to the fullest extent permitted by
law. Section 607.0831 of the Florida Business Corporation Act (the "Florida
Act") provides that a director is not personally liable for monetary damages to
the corporation or any person for any statement, vote, decision or failure to
act regarding corporate management or policy, by a director, unless: (a) the
director breached or failed to perform his duties as a director; and (b) the
director's breach of, or failure to perform, those duties constitutes: (i) a
violation of criminal law unless the director had reasonable cause to believe
his conduct was lawful or had no reasonable cause to believe his conduct was
unlawful; (ii) a transaction from which the director derived an improper
personal benefit, either directly or indirectly; (iii) a circumstance under
which the director is liable for an improper distribution; (iv) in a proceeding
by or in the right of the corporation to procure a judgment in its favor or by
or in the right of a shareholder, conscious disregard for the best interests of
the corporation, or willful misconduct; or (v) in a proceeding by or in the
right of someone other than the corporation or a shareholder, recklessness or an
act or omission which was committed in bad faith or with malicious purpose or in
a manner exhibiting wanton and willful disregard of human rights, safety or
property.
Section 607.0850 of the Florida Act provides that a corporation shall have
the power to indemnify any person who was or is a party to any proceeding (other
than an action by, or in the right of, the corporation), by reason of the fact
that he is or was a director, officer or employee or agent of the corporation
against liability incurred in connection with such proceeding 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 corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 607.0850 also provides that a corporation shall have the power to
indemnify any person who was or is a party to any proceeding by, or in the right
of, the corporation to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee or agent of the corporation,
against expenses and amounts paid in settlement not exceeding, in the judgment
of the board of directors, the estimated expense of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof.
13
Section 607.0850 further provides that such indemnification may be
authorized if such person acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation,
except that no indemnification shall be made under this provision in respect of
any claim, issue, or matter as to which such person shall have been adjudged to
be liable unless, and only to the extent that, the court in which such
proceeding was brought, or any other court of competent jurisdiction, shall
determine upon application that, despite the adjudication of liability, but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
Section 607.0850 further provides that to the extent that a director, officer,
employee or agent has been successful on the merits or otherwise in defense of
any of the foregoing proceedings, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses actually and reasonably
incurred by him in connection therewith. Under Section 607.0850, any
indemnification under the foregoing provisions, unless pursuant to a
determination by a court, shall be made by the corporation only as authorized in
the specific case upon a determination that the indemnification of the director,
officer, employee or agent is proper under the circumstances because he has met
the applicable standard of conduct. In addition to the foregoing, Section
607.0850 permits a corporation further to indemnify such persons by other means
unless a judgment or other final adjudication establishes that such person's
actions or omissions which were material to the cause of action constitute (1) a
crime (unless such person had reasonable cause to believe his conduct was lawful
or had no reasonable cause to believe it unlawful), (2) a transaction from which
he derived an improper personal benefit, (3) a transaction in violation of
Florida Statutes 607.0834 (unlawful distributions to shareholders), or (4)
willful misconduct or conscious disregard for the best interests of the
corporation in a proceeding by or in the right of the corporation to procure a
judgment in its favor or in a proceeding by or in the right of a shareholder.
Notwithstanding the failure of a corporation to provide indemnification, and
despite any contrary determination by the corporation in a specific case, a
director, officer, employee or agent of the corporation who is or was a party to
a proceeding may apply for indemnification to the appropriate court and such
court may order indemnification if it determines that such person is entitled to
indemnification under the applicable standard.
Section 607.0850 also provides that a corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation against any liability
asserted against him and incurred by him in any such capacity or arising out of
his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of Section 607.0850.
The Company's directors and officers are covered by insurance policies
indemnifying them against certain liabilities, including liabilities under the
federal securities laws (other than liability under Section 16(b) of the
Exchange Act), which might be incurred by them in such capacities.
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Item 7. Exemption from Registration Claimed.
The shares issued to our executive officers, directors and employees upon
exercise of their incentive stock options granted under our 1992 Incentive Stock
Option Plan were exempt from registration under Section 4(2) of the Securities
Act of 1933, as amended. Each of the option holders exercised their options in
reliance upon Section 4(2) of the Securities Act of 1933, because each of these
holders was knowledgeable, sophisticated and had access to comprehensive
information about us. We placed legends on the certificates stating that the
securities were not registered under the Securities Act and set forth the
restrictions on their transferability and sale. We have filed this registration
statement on Form S-8 to register the resale of these shares.
Item 8. Exhibits.
4.1 Ocean Bio-Chem, Inc. 1992 Incentive Stock Option Plan (incorporated by
reference to the Form S-8 Registration Statement filed by the Ocean Bio-Chem,
Inc. on February 02, 2004).
10.11 Ocean Bio-Chem, Inc. 1992 Incentive Stock Option Plan (incorporated
by reference to Form S-8 filed with the United States Securities and Exchange
Commission on June 24, 1994).
23.1 Consent of Levi Cahlin & Co.
23.2 Consent of Berkovits, Lago and Company, LLP.
24.1 Power of Attorney (included in the signature page)
Item 9. Undertakings.
The undersigned 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, as amended (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 this Registration Statement.
(iii) To include any additional or changed material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment is contained
in periodic reports filed with or furnished to the SEC by the Company pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
15
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 which remain unsold at the termination of
this offering.
4. The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company'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.
5. Insofar as indemnification for liabilities arising under the Securities
Act 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 SEC 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 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 the Securities
Act and will be governed by the final adjudication of such issue.
16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Ocean Bio-Chem, Inc.
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 Fort Lauderdale, State of Florida, on this 22nd day
of December, 2006.
OCEAN BIO-CHEM, INC.
By:/s/ Peter G. Dornau
Peter G. Dornau, President and
Chief Executive Officer
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 this 22nd day of December, 2006.
SIGNATURE TITLE
/s/ Peter G. Dornau President, Chairman of the Board, Chief
Peter G. Dornau Executive Officer and Director
/s/ Edward Anchel Vice President-Finance, Chief
Edward Anchel Financial Officer and Director
/s/ Peter G. Dornau Director
Peter G. Dornau
/s/ Jeffrey Tieger Director
Jeffrey Tieger
/s/ Laz L. Schneider Director
Laz L. Schneider
/s/ James Kolisch Director
James Kolisch
/s/ John B. Turner Director
John B. Turner
/s/ Sonia B. Beard Director
Sonia B. Beard
17
EXHIBIT INDEX
Exhibit
Number
4.1 Ocean Bio-Chem, Inc. 1992 Incentive Stock Option Plan (incorporated by
reference to the Form S-8 Registration Statement filed by the Ocean Bio-Chem,
Inc. on February 02, 2004).
10.1 Ocean Bio-Chem, Inc. 1992 Incentive Stock Option Plan (incorporated by
reference to Form S-8 filed with the United States Securities and Exchange
Commission on June 24, 1994).
23.1 Consent of Levi Cahlin & Co.
23.2 Consent of Berkovits, Lago and Company, LLP.
24.1 Power of Attorney (included in the signature page)
18
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED ACCOUNTING FIRM
We hereby consent to the incorporation by reference in Ocean Bio-Chem,
Inc.'s 1992 Incentive Stock Option Plan's Registration Statement on Form S-8 of
our report dated March 22, 2006 relating to the consolidated financial
statements which appear in Ocean Bio-Chem, Inc.'s Annual Report on Form 10-K/A
for the year ended December 31, 2005, filed with the Securities and Exchange
Commission on August 31, 2006 and to all references to our firm included in this
Registration Statement. We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
LEVI, CAHLIN & CO.
North Miami Beach, Florida
December 22, 2006
19
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED ACCOUNTING FIRM
We hereby consent to the incorporation by reference in Ocean Bio-Chem,
Inc.'s 1992 Incentive Stock Option Plan's Registration Statement on Form S-8 of
our report dated March 25, 2004 relating to the consolidated statements
operations, shareholders' equity, and cash flows for the year ended December 31,
2003 which appear in Ocean Bio-Chem, Inc.'s Annual Report on Form 10-K/A for the
year ended December 31, 2005, filed with the Securities and Exchange Commission
on August 31, 2006 and to all references to our firm included in this
Registration Statement. We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
BERKOVITS, LAGO AND COMPANY, LLP
Fort Lauderdale, Florida
December 22, 2006
20
POWER OF ATTORNEY
For Registration Statement of Ocean Bio-Chem, Inc.
KNOW BY THESE PRESENTS, That each of the undersigned directors and officers of
Ocean Bio-Chem, Inc., a Florida corporation (the "Company"), which proposes to
file with the Securities and Exchange Commission, Washington, DC ("SEC") under
the provisions of the Securities Act of 1933, as amended (the "Act"), a new S-8
Registration Statement and one or more post-effective amendments ("Registration
Documents") to register under said Act 143,000 shares of the Common Stock of the
Company to be sold by shareholders, hereby constitutes and appoints Edward
Anchel his true and lawful attorney-in-fact and agent, with full power to act as
his true and lawful attorney-in-fact and agent, for him and in his name, place
and stead, in any and all capacities, to sign the Registration Documents and to
file the same with all exhibits thereto and any and all other documents in
connection therewith, with the SEC, hereby granting unto said attorney-in-fact
and agent full power and authority to do and perform any and all acts and things
requisite and necessary to be done in and about the premises as fully and to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent may lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have hereunto set their hand on the 22nd day
of December, 2006.
SIGNATURES TITLE
/s/ Peter G. Dornau President, Chairman of the Board, Chief
Peter G. Dornau Executive Officer and Director
/s/ Edward Anchel Vice President-Finance, Chief
Edward Anchel Financial Officer and Director
/s/ Peter G. Dornau Director
Peter G. Dornau
/s/ Jeffrey Tieger Director
Jeffrey Tieger
/s/ Laz L. Schneider Director
Laz L. Schneider
/s/ James Kolisch Director
James Kolisch
/s/ John B. Turner Director
John B. Turner
/s/ Sonia B. Beard Director
Sonia B. Beard
21