As filed with the Securities and Exchange Commission on October 18, 2002
Registration No. 333-________
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ACETO CORPORATION
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(Exact Name of Registrant as Specified in its Charter)
New York 11-1720520
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(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
ONE HOLLOW LANE
LAKE SUCCESS, NY 11042
(516) 627-6000
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(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
LEONARD S. SCHWARTZ
CHIEF EXECUTIVE OFFICER
ACETO CORPORATION
ONE HOLLOW LANE
LAKE SUCCESS, NEW YORK 11042
(516) 627-6000
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(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
COPY TO:
HANK GRACIN, ESQ.
LEHMAN & EILEN LLP
50 CHARLES LINDBERGH BOULEVARD
UNIONDALE, NY 11553
Telephone No.: (516) 222-0888
Facsimile No.: (516) 222-0948
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Approximate date of commencement of proposed sale to public: from time to time,
following the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. |_|
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
-------------------------------- ------------------------ ------------- ------------------ --------------------
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to Offering Price Aggregate Amount of
Securities to be Registered be Registered Per Share (1) Offering Price (1) Registration Fee (2)
--------------------------- ------------- ------------- ------------------ --------------------
Common Stock, par value per 600,000 $8.81 $5,286,000 $486.31
share $.01
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(1) Estimated solely for purposes of calculating the registration fee. The
proposed maximum aggregate offering price was calculated pursuant to Rule
457(c) under the Securities Act of 1933, as amended, upon the basis of the
average of the high and low prices reported on the Nasdaq National Market
on October 14, 2002.
(2) Calculated in accordance with Section 6(b)(2) of the Securities Act of
1933, as amended, by multiplying the aggregate offering amount by .000092.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
SUBJECT TO COMPLETION, DATED OCTOBER 18, 2002
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
HAVE FILED A REGISTRATION STATEMENT RELATING TO THESE SECURITIES WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE SELLING SHAREHOLDERS MAY NOT SELL THESE
SECURITIES NOR MAY THEY ACCEPT OFFERS TO BUY THESE SECURITIES PRIOR TO THE TIME
THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO
SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN
ANY STATE IN WHICH THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
ACETO CORPORATION
600,000 Shares of Common Stock
o The selling shareholders identified in this prospectus are
offering to sell up to 600,000 shares of our common stock.
o We will not receive any proceeds from this offering of common
stock.
o Our common stock is traded and quoted on the Nasdaq National
Market under the symbol "ACET". On October 14, 2002, the high
price of our common stock was $8.86 and the low price was $8.75.
o The selling shareholders may sell the shares of common stock
directly or through underwriters, dealers or agents in market
transactions or privately negotiated transactions.
The address and telephone number of Aceto Corporation's principal executive
offices are:
One Hollow Lane
Lake Success, New York 11042
(516) 627-6000
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
THIS INVESTMENT INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD CAREFULLY
CONSIDER THE FACTORS DESCRIBED UNDER THE CAPTION "RISK FACTORS" BEGINNING ON
PAGE 3 OF THIS PROSPECTUS.
The date of this prospectus is October , 2002
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1
TABLE OF CONTENTS
PAGE
----
Our Business .......................................................... 3
Risk Factors .......................................................... 3
Special Information About Forward Looking Statements .................. 4
Use of Proceeds ....................................................... 4
Selling Shareholders .................................................. 4
Plan of Distribution .................................................. 5
Indemnification for Securities Act Liabilities ........................ 6
Where You Can Find More Information About Us .......................... 6
Legal Matters ......................................................... 7
Experts ............................................................... 7
2
You should read the entire prospectus and any documents incorporated by
reference carefully before purchasing Aceto Corporation common stock. In this
prospectus, "Aceto Corporation," "we," "us" and "our" refer to the business that
is owned and conducted by Aceto Corporation and its subsidiaries, and not to the
selling shareholders.
OUR BUSINESS
We are primarily engaged in the marketing, sale and distribution of
pharmaceutical, fine and industrial chemicals used principally in the
agricultural, color producing, pharmaceutical, nutraceutical and surface coating
industries. We sell approximately 1,000 chemicals used in these and other
related industries.
On March 26, 2001, we acquired the distribution business of the
Schweizerhall Pharma division of Schweizerhall Holding AG, a Switzerland
corporation, and certain assets relating to the pharmaceutical ingredients
business of Schweizerhall, Inc., a New Jersey corporation and wholly owned
subsidiary of Schweizerhall Holding AG.
Schweizerhall Pharma's distribution business is an international
pharmaceutical distribution business with offices located in Hamburg, Germany;
Wormerveer, The Netherlands; Paris, France; Piscataway, New Jersey; Singapore;
Mumbai, India; and Hong Kong.
RISK FACTORS
Before you buy shares of our common stock, you should be aware that there
are various risks associated with the purchase of our common stock. You should
consider carefully these risk factors, together with all of the other
information in this prospectus and all documents incorporated by reference,
before you decide to purchase shares of our common stock. The trading price of
our common stock could decline due to any of these risks, and you may lose all
or part of your investment. You should also refer to the other information
contained in this prospectus, including the documents we incorporate by
reference under "Where You Can Find More Information About Us".
IF WE ARE UNABLE TO MANAGE THE INTEGRATION OF OUR ACQUIRED BUSINESSES, OUR
FINANCIAL CONDITION AND OPERATING RESULTS MAY BE ADVERSELY AFFECTED
A failure to effectively manage the integration of the four acquisitions we
have made since November 1998, and any additional acquisitions we may decide to
make, may adversely affect our business and financial condition. Our
acquisitions have placed, and will continue to place, significant demands on our
management, technical and other resources. Additionally, the successful
expansion of our operations will depend on our ability to secure adequate
sources of specialty chemicals on commercially reasonable terms and attract and
retain skilled management.
IF WE ARE UNABLE TO COMPETE EFFECTIVELY WITH OUR COMPETITORS, MANY OF WHOM
HAVE A GREATER MARKET PRESENCE AND GREATER RESOURCES THAN US, THE FINANCIAL
CONDITION AND OPERATING RESULTS OF THE COMPANY MAY BE ADVERSELY AFFECTED.
Our financial condition and operating results are directly related to our
ability to compete in the intensely competitive worldwide chemical market. We
face competition from global and regional distributors of chemical products,
many of who are large chemical manufacturers as well as distributors. Many of
these companies have substantially greater resources than us, including greater
financial, marketing and distribution resources.
UNFORESEEN ENVIRONMENTAL LIABILITIES AND/OR COSTS ASSOCIATED WITH
COMPLIANCE WITH ENVIRONMENTAL LAWS WOULD HAVE A NEGATIVE EFFECT ON OUR FINANCIAL
PERFORMANCE
If existing environmental regulations are changed, or additional laws or
regulations are passed, the cost of complying with those laws may be
substantial. No assurance can be given that we will not incur material
environmental liabilities or that compliance with such laws will not require
material capital expenditures by us, negatively affecting our financial
performance. Our operations, the distribution of chemical products, are subject
to various federal, state, local and foreign environmental laws and regulations.
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Many of these laws and regulations provide for substantial remediation
costs in the event of discharges of contaminants and fines and criminal
sanctions for violations. We believe that we are currently in substantial
compliance with all current environmental laws and regulations.
THE UNCERTAIN MILITARY, TERRORIST, POLITICAL AND ECONOMIC CONDITIONS IN THE
WORLD COULD MATERIALLY DISRUPT OUR OPERATIONS CONDUCTED ABROAD AND EXPORT SALES.
Military, terrorist, political and economic actions in other countries
could materially disrupt our overseas operations and export sales. In fiscal
year 2002, approximately 36% of our revenues were attributable to operations
conducted abroad and to export sales. In addition, in certain countries where we
currently operate, export, intend to operate or intend to expand our operations,
we could be subject to other political, military and economic uncertainties
including labor unrest, restrictions on transfers of funds and unexpected
changes in regulatory environments.
WE MAY FACE UNINSURED LIABILITIES INHERENT IN THE CHEMICAL INDUSTRY.
It is possible that liabilities for pollution and other damages arising
from a major occurrence could exceed our insurance coverage or policy limits or
that such insurance may not be available at reasonable rates in the future. Any
such liabilities, which could arise due to injury and loss of life, severe
damage to and destruction of property and equipment, pollution and other
environmental damage could have a material adverse effect on us. The risks
inherent in the chemical industry include explosions, fires, chemical spills or
releases, pollution and other environmental risks. While we have considered and
evaluated these risks, we believe that they currently do not have a significant
impact on the financial statements.
BECAUSE OUR BUSINESS IS AFFECTED BY CHANGES IN CURRENCY MARKETS,
FLUCTUATIONS IN FOREIGN CURRENCY EXCHANGE RATES MAY ADVERSELY AFFECT OUR RESULTS
OF OPERATIONS AND FINANCIAL CONDITION.
Our results of operations and financial condition may be adversely affected
by fluctuations in the exchange rate between foreign currencies and the U.S.
dollar. A substantial portion of our revenue is denominated in currencies other
than the U.S. dollar because certain of our foreign subsidiaries operate in
their local currencies. Moreover, we may incur significant costs in connection
with conversions between currencies.
SPECIAL INFORMATION ABOUT FORWARD-LOOKING STATEMENTS
Some of the statements in this prospectus or in the documents we
incorporate by reference are "forward-looking statements" within the meaning of
the Private Securities Litigation Reform Act of 1995. These forward-looking
statements involve certain known and unknown risks, uncertainties and other
factors which may cause our actual results, performance or achievements to be
materially different from any future results, performance or achievements to be
expressed or implied by these forward-looking statements. These factors include,
among others, the inability to manage our recent rapid growth, unforeseen
environmental liabilities and the uncertain military, political and economic
conditions in the world. The words "believe," "expect," "anticipate," "intend"
and "plan" and similar expressions identify forward-looking statements. We
caution you not to place undue reliance on these forward-looking statements. We
undertake no obligation to update or revise any forward-looking statements or
publicly announce the result of any revisions to any of the forward-looking
statements in this document to reflect future events or developments.
USE OF PROCEEDS
Each selling shareholder is selling all of the shares covered by this
prospectus for his, her or its own account. Accordingly, we will not receive any
proceeds from the resale of the shares.
SELLING SHAREHOLDERS
The shares that may be offered hereby consist of 400,000 shares of our
common stock held by Schweizerhall Holding AG, a corporation organized under the
laws of Switzerland with its principal place of business at Elsasserstrasse
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229, CH-4013, Basel, Switzerland, and 200,000 shares of our common stock held by
Schweizerhall, Inc., a New Jersey corporation and wholly owned subsidiary of
Schweizerhall Holding AG, with its principal place of business at 25 Corporate
Place South, Piscataway, New Jersey 08854.
We issued all the shares that may be offered hereby in a private placement
on March 26, 2001, as partial consideration for the distribution business of the
Schweizerhall Pharma division of Schweizerhall Holding AG, and for certain
assets relating to the pharmaceutical ingredients business of Schweizerhall,
Inc.
Pursuant to the Purchase and Sale Agreement between us and Schweizerhall
Holding AG, Chemische Fabrik Schweizerhall and Schweizerhall Inc., we were
obligated to effect the registration of the shares that may be offered hereby.
We are further obligated to register and qualify the shares under such state
securities laws as the selling shareholders may reasonably request. We will bear
the reasonable expenses of the registration and qualification of the shares
under the Securities Act and state securities laws, other than brokerage
commissions and the expenses of counsel for the selling shareholders.
The following table sets forth the names of the selling shareholders, the
number of shares of common stock beneficially owned by the selling shareholders
as of October 15, 2002, the number of shares of common stock that may be offered
by the selling shareholders, the number of shares of common stock each selling
shareholder will beneficially own if the shareholder sells all of the shares
being registered and the selling shareholder's percentage ownership of our
common stock if all the shares in the offering are sold.
The shares being offered hereby are being registered to permit public
secondary trading, and the selling shareholders may offer all or part of the
shares for resale from time to time. However, the selling shareholders are under
no obligation to sell all or any portion of such shares nor are the selling
shareholders obligated to sell any shares immediately under this prospectus. All
information with respect to share ownership has been furnished by the selling
shareholders. None of the selling shareholders have, and within the past three
years have not had, any position, office or other material relationship with us
or any of our predecessors or affiliates, except that we agreed in the Purchase
and Sale Agreement referenced above to extend to a nominee of Schweizerhall
Holding AG an invitation to join our Board of Directors.
Beneficial Ownership Percent of Class
Shares of After Offering if Owned After
Common Stock Shares of Common all Offering if all
Selling Shareholders Beneficially Owned Stock to be Sold Shares are Sold Shares are Sold
-------------------- ------------------ ---------------- --------------- ---------------
Schweizerhall Holding AG 400,000 400,000 0 0%
Schweizerhall, Inc. 200,000 200,000 0 0%
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Total: 600,000 600,000 0
PLAN OF DISTRIBUTION
The selling shareholders and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of common stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The selling shareholders may use any one or more of the
following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o short sales;
o broker-dealers may agree with the selling shareholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
5
The selling shareholders may also sell shares under Rule 144 under the
Securities Act of 1933, if available, rather than under this prospectus.
Broker-dealers engaged by the selling shareholders may arrange for other
broker-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the selling shareholders (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling shareholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The selling shareholders may from time to time pledge or grant a security
interest in some or all of the shares of common stock owned by them and, if they
default in the performance of their secured obligations, the pledgees or secured
parties may offer and sell the shares of common stock from time to time under
this prospectus, or under an amendment to this prospectus under Rule 424(b)(3)
or other applicable provision of the Securities Act of 1933 amending the list of
selling shareholders to include the pledgee, transferee or other successors in
interest as selling shareholders under this prospectus.
The selling shareholders also may transfer the shares of common stock in
other circumstances, in which case the transferees, pledgees or other successors
in interest will be the selling beneficial owners for purposes of this
prospectus.
The selling shareholders and any broker-dealers or agents that are involved
in selling the shares may be deemed to be "underwriters" within the meaning of
the Securities Act of 1933 in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act of 1933. Each selling
shareholder has informed us that it does not have any agreement or
understanding, directly or indirectly, with any person to distribute the common
stock.
We are required to pay all fees and expenses incident to the registration
of the shares. We have agreed to indemnify the selling shareholders against
certain losses, claims, damages and liabilities, including liabilities under the
Securities Act of 1933.
We have informed the selling shareholders that while they are engaged in a
distribution of the shares included in this prospectus they are required to
comply with certain anti-manipulative rules contained in Regulation M under the
Securities Exchange Act of 1934. With certain exceptions, Regulation M precludes
the selling shareholders, any affiliated purchasers, and any broker-dealer or
other person who participates in such distribution from bidding for or
purchasing, or attempting to induce any person to bid for or purchase any
security which is the subject of the distribution until the entire distribution
is complete. Regulation M also prohibits any bids or purchases made in order to
stabilize the price of a security in connection with the distribution of that
security. All of the foregoing may affect the marketability of the shares
offered by this prospectus.
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Our Certificate of Incorporation eliminates the personal liability of our
directors to the fullest extent permitted by Section 402(b) of New York State's
Business Corporation Law. Our By-Laws further provide that we will indemnify our
officers and directors to the fullest extent permitted by law.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable.
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference room at 450 Fifth Street, N.W., Washington,
6
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room. Our SEC filings are also available to the public from the
SEC's Website at "http://www.sec.gov."
We have filed with the SEC a registration statement on Form S-3 to register
shares of our common stock. This prospectus is part of that registration
statement and, as permitted by the SEC's rules, does not contain all the
information included in the registration statement. For further information with
respect to us or our common stock, you may refer to the registration statement
and to the exhibits filed as part of that registration statement. You can review
and copy the registration statement and its exhibits at the public reference
facilities maintained by the SEC as described above. The registration statement,
including its exhibits, is also available on the SEC's web site.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be a part of this prospectus, and information that we file later
with the SEC will automatically update or supersede this information. We
incorporate by reference the documents listed below and any future filing we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended:
o Annual Report on Form 10-K for the fiscal year ended June 30, 2002
filed with the SEC on September 27, 2002
o The description of Aceto's common stock contained in the Registration
Statement on Form 8-A filed with the SEC on December 19, 1969
You may request a copy of these filings, at no cost, by writing to us at
our executive offices at One Hollow Lane, Lake Success, New York 11042,
Attention: Douglas Roth, or by calling us at (516) 627-6000.
LEGAL MATTERS
The validity of the shares of common stock offered in this prospectus has
been passed upon for us by Lehman & Eilen LLP, 50 Charles Lindbergh Boulevard,
Suite 505, Uniondale, New York 11553. Its telephone number is (516) 222-0888.
EXPERTS
The consolidated financial statements and schedule of Aceto Corporation as
of June 30, 2002 and 2001, and for each of the years in the three year period
ended June 30, 2002, have been incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG LLP, independent
accountants, incorporated by reference herein and upon the authority of said
firm as experts in accounting and auditing.
7
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses which we will pay in
connection with the issuance and distribution of the securities being registered
on this registration statement. The selling shareholders will not incur any of
the expenses set forth below. All amounts shown are estimates.
SEC Filing fee .................................................. $486.31
Legal fees ...................................................... $15,000
Accounting fees ................................................. $3,000
Printing and engraving .......................................... $1,000
Miscellaneous ................................................... $513.69
Total ............................................... $20,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 402(b) of the New York Business Corporation Law (the "BCL")
provides that the articles of incorporation of New York corporations may
eliminate the personal liability of directors to a corporation and its
shareholders for monetary damages arising from breaches of the directors' duty
of care. However, Section 402 (b) does not permit elimination of the liability
of any director if a judgment or other final adjudication adverse to him
establishes that: (i) his acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of law or that he personally
gained in fact a financial profit or other advantage to which he was not legally
entitled; or (ii) that his action involved (a) an improper declaration of any
dividend or other distribution, (b) an improper redemption by the corporation of
its own shares,(c) the distribution of assets to shareholders after dissolution,
without paying or adequately providing for, with certain exceptions, known
liabilities of the Corporation, or (d) the making of an improper loan to a
director. Section 402 (b) does not authorize any limitation on the ability of a
corporation or its shareholders to obtain injunctive relief, specific
performance or other equitable remedies, and would not apply to acts or
omissions which occurred prior to the filing of an amendment to the
corporation's certificate of incorporation containing the elimination of
directors' liability.
Article SEVENTH of the registrant's Certificate of Incorporation provides
that the personal liability of the directors of the Corporation is hereby
eliminated to the fullest extent permitted by the provisions of paragraph (b)of
Section 402 of the Business Corporation Law of the State of New York, as the
same may be amended and supplemented.
Section 12 of Article II of the registrant's By-Laws provide that the
Corporation shall indemnify any person, made a party to an action by or in the
right of the Corporation to procure a judgment in its favor by reason of the
fact that he, his testator or intestate, is or was a director, officer, or
employee of the Corporation, against the reasonable expenses, including
attorneys' fees, actually and necessarily incurred by him in connection with the
defense of such action, or in connection with an appeal therein, except in
relation to matters as to which such director, officer, or employee is adjudged
to have breached his duty to the Corporation. The Corporation shall indemnify
any person, made, or threatened to be made, a party to an action or proceeding
other than one by or in the right of the Corporation to procure a judgment in
its favor, whether civil or criminal, including an action by or in the right of
any other corporation of any type or kind, domestic or foreign, which any
director, officer, or employee of the Corporation served in any capacity at the
request of the Corporation, by reason of the fact that he, his testator or
intestate, was a director, officer, or employee of the Corporation, or served
such other corporation in any capacity, against judgments, fines, amounts paid
in settlement and reasonable expenses, including attorneys' fees actually and
necessarily incurred as a result of such action or proceeding, or any appeal
therein, if such director, officer, or employee acted, in good faith, for a
purpose which he reasonably believed to be in the best interests of the
Corporation and, in criminal actions or proceedings, in addition, had no
reasonable cause to believe that his conduct was unlawful. The foregoing right
of indemnification shall not be exclusive of other rights to which he may be
entitled. The Corporation is empowered to purchase and maintain insurance on
behalf of any person who is or was a director officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director of another corporation against any liability asserted against him and
incurred by him in any
II-1
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 sections 722 and 717 of the Business Corporation Law.
The registrant maintains a directors and officers liability insurance
policy with The St. Paul of St. Paul, Minnesota. The policy insures the
directors and officers of the registrant against loss arising from certain
claims made against such directors or officers by reason of certain wrongful
acts.
ITEM 16. EXHIBITS.
The exhibits attached hereto are as follows:
EXHIBIT
NUMBER DESCRIPTION
------ -----------
5.1 Opinion of Lehman & Eilen LLP (1)
10.1 Purchase and Sale Agreement dated January 28, 2001 between Aceto
Corporation, Aceto Holding B.V., I.O., Schweizerhall Holding AG,
Chemische Fabrik Schweizerhall and Schweizerhall, Inc. (2)
23.1 Consent of KPMG LLP (1)
23.2 Consent of Lehman & Eilen LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included in the signature page of this
registration statement) (1)
-----------------------------
(1) Filed herewith
(2) Incorporated by reference to Exhibit 2.1 to the registrant's Current Report
on Form 8-K dated April 4, 2001.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) (1) To file, during any period in which it offers or sells securities,
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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus file with Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
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.
(2) That for the purpose of determining any liability under the Securities
Act, each post-effective amendment shall be deemed a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed 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.
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Insofar as indemnification for liabilities arising under the securities act
may be permitted to directors, officers and controlling persons of the small
business issuer pursuant to the foregoing provisions, or otherwise, the small
business issuer 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 liabilities is
asserted by a director, officer or controlling person in connection with the
securities being registered, other than the payment by the small business issuer
of expenses incurred or paid by a director, officer or controlling person of the
small business issuer in the successful defense of any action, suit or
proceeding, the small business issuer 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 the issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3, and has duly caused this
Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Lake Success, State of
New York, on October 18, 2002.
ACETO CORPORATION
By: /s/ LEONARD S. SCHWARTZ
-----------------------
Leonard S. Schwartz
Chairman, President and
Chief Executive Officer
The undersigned directors and officers of Aceto Corporation hereby
severally constitute and appoint Leonard S. Schwartz and Douglas Roth, and each
of them, with full power to act without the other and with full power of
substitution and resubstitution, our true and lawful attorneys-in-fact with full
power to execute in our name and behalf in the capacities indicated below any
and all amendments (including post-effective amendments and amendments thereto)
to this Registration Statement under the Securities Act of 1933 and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission and hereby ratify and confirm each
and every act and thing that such attorneys-in-fact, or any of them, or their
substitutes, shall lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed by the following persons in
the capacities and on the dates indicated.
Signature Title Date
/s/ Leonard S. Schwartz Chairman, Chief Executive Officer and October 18, 2002
----------------------------- President (Principal Executive Officer)
Leonard S. Schwartz
/s/ Douglas Roth Chief Financial Officer October 18, 2002
---------------------------------- (Principal Financial Officer)
Douglas Roth
/s/ Samuel I. Hendler Director October 18, 2002
--------------------------------
Samuel I. Hendler
/s/ Robert Wiesen Director October 18, 2002
---------------------------------
Robert Wiesen
/s/ Stanley H. Fischer Director October 18, 2002
---------------------------------
Stanley H. Fischer
/s/ Albert L. Eilender Director October 18, 2002
---------------------------------
Albert L. Eilender
/s/ Hans-Peter Schaer Director October 18, 2002
--------------------------------
Hans-Peter Schaer
/s/ John H. Schlesinger Director October 18, 2002
--------------------------------
John H. Schlesinger
II-4
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------ -----------
5.1 Opinion of Lehman & Eilen LLP (1)
10.1 Purchase and Sale Agreement dated January 28, 2001 between Aceto
Corporation, Aceto Holding B.V., I.O., Schweizerhall Holding AG,
Chemische Fabrik Schweizerhall and Schweizerhall, Inc. (2)
23.1 Consent of KPMG LLP (1)
23.2 Consent of Lehman & Eilen LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included in the signature page of this
registration statement) (1)
II-5