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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Balchem Corporation
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(Exact name of registrant as specified in its charter)
Maryland 13-2578432
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
52 Sunrise Park Road, PO Box 600
New Hampton, New York 10958
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which each
to be so registered class is to be registered
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Common Stock, par value $0.06 2/3 per share NASDAQ Stock Market, LLC
If this Form 8-A relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. |X|
If this Form 8-A relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. |_|
Securities Act registration statement file number to which this form relates:
Not applicable
Securities to be registered pursuant to Section 12(g) of the Act: None.
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This registration statement relates to the shares of common stock, par
value $0.06 2/3 per share (the "Common Stock"), of Balchem Corporation (the
"Company"). This registration statement is filed with the Securities and
Exchange Commission (the "SEC") in connection with the Company's application to
list the Common Stock on the NASDAQ Stock Market, LLC.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock summarizes the material terms and
provisions of these securities. For the complete terms of our capital stock,
please refer to our Restated Articles of Incorporation, as amended (the
"Charter"), and Bylaws. The terms of the Company's capital stock may also be
affected by the Maryland General Corporation Law.
GENERAL
Our Charter provides that we may issue up to 25,000,000 shares of Common Stock,
par value $.06 2/3 per share, and up to 2,000,000 shares of Preferred Stock, par
value $25.00 per share. As of December 20, 2006, approximately 11,769,438 shares
of Common Stock were issued and outstanding and no shares of the Preferred Stock
were issued and outstanding. On December 8, 2006, our Board of Directors
approved and declared a 3-for-2 stock split, to be effected in the form of a
stock dividend on its issued and outstanding Common Stock, as of 5:00 PM, New
York City time, on December 29, 2006.
COMMON STOCK
Holders of our Common Stock have no preference, conversion, exchange, redemption
or appraisal rights and have no preemptive rights to subscribe for any of our
securities. Holders of our Common Stock are entitled to receive dividends when
authorized by our Board of Directors out of assets legally available for the
payment of dividends. They are also entitled to share ratably in our assets
legally available for distribution to our stockholders in the event of our
liquidation, dissolution or winding up, after payment of or adequate provision
for all of our known debts and liabilities.
Each outstanding share of Common Stock entitles the holder to one vote on all
matters submitted to a vote of stockholders, including the election of
directors. The holders of our common stock possess the exclusive voting power.
There is no cumulative voting in the election of directors, which means that the
holders of a majority of the outstanding shares of Common Stock can elect all of
the directors then standing for election, and the holders of the remaining
shares will not be able to elect any directors.
PREFERRED STOCK
Our Charter authorizes our Board of Directors, without stockholder approval,
from time to time, to issue shares of our Preferred Stock, in one or more
series. Prior to issuance of shares of Preferred Stock, the board must set the
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications and terms or
conditions of redemption for the Preferred Stock. Thus, the board could
authorize the issuance of shares of Preferred Stock with terms and conditions
that could have the effect of delaying, deferring or preventing a transaction or
a change in control that might involve a premium price for holders of our Common
Stock or otherwise be in their best interest. No shares of our Preferred Stock
are presently outstanding and we have no present plans to issue any Preferred
Stock. We believe that the power to issue additional shares of stock provides us
with increased flexibility in structuring possible future financings and
acquisitions and in meeting other needs which might arise. These actions can be
taken without stockholder approval, unless stockholder approval is required by
applicable law or the rules of any stock exchange or automated quotation system
on which our securities may be listed or traded. If any shares of Preferred
Stock are issued with voting powers, the voting power of the outstanding Common
Stock would be diluted.
TRANSFER AGENT AND REGISTRAR
Our transfer agent for the Common Stock is Registrar and Transfer Company, 10
Commerce Way, Cranford, NJ 07016.
CERTAIN PROVISIONS OF MARYLAND LAW AND OF OUR CHARTER AND BYLAWS
BOARD OF DIRECTORS
The Charter establishes the number of our directors. Our by-laws provide that
any vacancy will be filled, at any regular meeting or at any special meeting
called for that purpose, by a majority of the remaining directors. Our board is
consists of three (3) classes or directors, each of two directors each and each
with staggered three year terms. Our Bylaws provide that a director may be
removed with or without cause by the affirmative vote of a majority of the votes
entitled to be cast in the election of directors.
BUSINESS COMBINATIONS
Under Maryland law, "business combinations" between a Maryland corporation and
an interested stockholder or an affiliate of an interested stockholder are
prohibited for five years after the most recent date on which the interested
stockholder becomes an interested stockholder. These business combinations
include certain mergers, asset transfers or issuances or reclassifications of
equity securities. An interested stockholder is defined as:
- any person who beneficially owns ten percent or more of the voting power of
the corporation's shares; or
- an affiliate or associate of the corporation who, at any time within the
two-year period prior to the date in question, was the beneficial owner of 10%
or more of the voting power of the then outstanding voting stock of the
corporation.
A person is not an interested stockholder under the statute if the board of
directors approved in advance the transaction by which the stockholder otherwise
would have become an interested stockholder.
After the five-year prohibition, any business combination between the Maryland
corporation and an interested stockholder generally must be recommended by the
board of directors of the corporation and approved by the affirmative vote of at
least:
- 80% of the votes entitled to be cast by holders of outstanding shares of
voting stock of the corporation; and
- two-thirds of the votes entitled to be cast by the holders of voting stock of
the corporation other than shares held by the interested stockholder with whom
or with whose affiliate the business combination is to be effected or held by an
affiliate or associate of the interested stockholder.
These super-majority vote requirements do not apply if the corporation's common
stockholders receive a minimum price, as defined under Maryland law, for their
shares in the form of cash or other consideration in the same form as previously
paid by the interested stockholder for its shares.
The statute provides for various exemptions from its provisions, including
business combinations that are exempted by the board of directors prior to the
time that the interested stockholder becomes an interested stockholder. The
business combination statute could have the effect of delaying, deferring or
preventing a transaction or a change in control that might involve a premium
price for holders of our Common Stock or otherwise be in their best interest.
CONTROL SHARE ACQUISITIONS
We are subject to Maryland's control share acquisition statute which provides
that control shares of a Maryland corporation acquired in a control share
acquisition have no voting rights, except to the extent approved by a vote of
two-thirds of the votes entitled to be cast on the matter. Shares owned by the
acquiror, by officers or by directors who are employees of the corporation are
excluded from shares entitled to vote on the matter. Control shares are voting
shares of stock, which, if aggregated with all other shares of stock owned by
the acquiror or in respect of which the acquiror is able to exercise or direct
the exercise of voting power (except solely by virtue of a revocable proxy),
would entitle the acquiror to exercise voting power
- one-tenth or more but less than one-third;
- one-third or more but less than a majority; or
- a majority or more of all voting power.
Control shares do not include shares the acquiring person is then entitled to
vote as a result of having previously obtained stockholder approval. A control
share acquisition means the acquisition of control shares, subject to certain
exceptions.
A person who has made or proposes to make a control share acquisition may compel
the board of directors of the corporation to call a special meeting of
stockholders to be held within 50 days of demand to consider the voting rights
of the shares. The right to compel the calling of a special meeting is subject
to the satisfaction of certain conditions, including an undertaking to pay the
expenses of the meeting. If no request for a meeting is made, the corporation
may itself present the question at any stockholders meeting.
If voting rights are not approved at the meeting or if the acquiring person does
not deliver an acquiring person statement as required by the statute, then the
corporation may redeem for fair value any or all of the control shares, except
those for which voting rights have previously been approved. The right of the
corporation to redeem control shares is subject to certain conditions and
limitations. Fair value is determined, without regard to the absence of voting
rights for the control shares, as of the date of the last control share
acquisition by the acquiror or, if a meeting of stockholders is held, at which
the voting rights of the shares are considered and not approved, as of the date
of such meeting. If voting rights for control shares are approved at a
stockholders meeting and the acquiror becomes entitled to vote a majority of the
shares entitled to vote, all other stockholders may exercise appraisal rights.
The fair value of the shares as determined for purposes of appraisal rights may
not be less than the highest price per share paid by the acquiror in the control
share acquisition.
The control share acquisition statute does not apply (a) to shares acquired in a
merger, consolidation or share exchange if the corporation is a party to the
transaction, or (b) to acquisitions approved or exempted by the charter or
bylaws of the corporation.
AMENDMENT TO THE CHARTER
Our charter may be amended only by the affirmative vote of the holders of not
less than two thirds majority of all of the votes entitled to be cast on the
matter.
DISSOLUTION OF THE COMPANY
The dissolution of the
Company must be approved by the affirmative vote of the holders of not less than
a two thirds majority of all of the votes entitled to be cast on the matter.
LIMITATION OF LIABILITY AND INDEMNIFICATION
Maryland law permits us to include
in our Charter a provision limiting the liability of our directors and officers
to us and our stockholders for money damages, except for liability resulting
from (1) actual receipt of an improper benefit or profit in money, property or
services or (2) active and deliberate dishonesty established by a final judgment
as material to the cause of action. Our Charter contains a provision which
eliminates directors' and officers' liability to the maximum extent permitted by
Maryland law. Maryland law requires us (unless our Charter provides otherwise,
which our Charter does not) to indemnify a director or officer who has been
successful in the defense of any proceeding to which he is made a party by
reason of his service in that capacity. Maryland law permits us to indemnify our
present and former directors and officers, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by them
in connection with any proceeding unless it is established that:
- the act or omission was material to the matter giving rise to the proceeding
and (1) was committed in bad faith or (2) was the result of active and
deliberate dishonesty;
- the director or officer actually received an improper personal benefit in
money, property or services; or
- in the case of any criminal proceeding, the director or officer had reasonable
cause to believe that the act or omission was unlawful.
However, under Maryland law, we may not indemnify for an adverse judgment in a
suit by or in our right or for a judgment on the basis that personal benefit was
improperly received, unless, in either case, a court orders indemnification and
then only for expenses.
In addition, Maryland law permits us to advance reasonable expenses to a
director or officer upon our receipt of (1) a written affirmation by the
director or officer of the director's good faith belief that the director has
met the standard of conduct necessary for indemnification and (2) a written
undertaking by the director or on the director's behalf to repay the amount paid
or reimbursed by us if it is ultimately determined that the standard of conduct
was not met.
Our Charter also authorizes us and our Bylaws obligate us, to indemnify and hold
harmless each of our 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 being, or having been, our director or officer, except in relation to matters
where the director or officer is grossly negligent or engaged in misconduct in
the performance of the duties of the director or officer. This indemnification
shall include reimbursement of amounts paid in settlement and expenses actually
and necessarily incurred by such director or officer in connection therewith,
provided that we are advised such settlement is for our best interests and the
director or officer to be indemnified is not guilty of gross negligence or
misconduct in respect of any matter covered by such settlement.
ANTI-TAKEOVER EFFECT OF PARTICULAR PROVISIONS OF MARYLAND LAW AND OF THE CHARTER
AND BYLAWS
Neither our Bylaws nor our Charter prohibit us from availing ourselves to the
anti-takeover provisions of Maryland General Business Law that may discourage or
delay the acquisition of control of us by means of a tender offer, open market
purchases, a proxy contest or otherwise. The relevant provisions of the
anti-takeover provisions of Maryland General Business Law are intended to
discourage certain types of transactions that may involve an actual or
threatened change of control of a corporation and to encourage any person who
might seek to acquire control of a corporation to negotiate with the Board of
Directors. Our management believes that generally the interests of the
stockholders would be served best if any change in control results from
negotiations with our Board of the proposed terms, such as the price to be paid,
the form of consideration and the anticipated tax effects of the transaction.
However, to the extent that these provisions do discourage takeover attempts,
such may have the effect of delaying, deferring or preventing a transaction or a
change in control that might involve a premium price for holders of Common Stock
or otherwise be in their best interest.
AMENDMENT TO THE BYLAWS
The Board of Directors is also authorized to adopt, amend, or repeal Bylaws, but
shall not alter or repeal any section made by the stockholders, nor shall the
Board of Directors repeal or alter the section of the Bylaws authorizing
amendment.
Item 2. Exhibits.
Not applicable.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
Balchem Corporation
(Registrant)
Dated: December 21, 2006 By: /s/ Dino A. Rossi
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Name: Dino A. Rossi
Title: President and Chief Executive Officer