File No. 333-__________
As filed with the Securities and Exchange Commission on June 16, 2004
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------------
NATIONAL DENTEX CORPORATION
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2762050
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
526 BOSTON POST ROAD, WAYLAND, MASSACHUSETTS 01778
(Address of Principal Executive Offices)
NATIONAL DENTEX CORPORATION
2001 STOCK PLAN
(Full title of the Plan)
RICHARD F. BECKER, JR.
Vice President - Finance and Chief Financial Officer
National Dentex Corporation
526 Boston Post Road
Wayland, Massachusetts 01778
(Name and address of agent for services)
(508) 358-4422
(Telephone number, including area code,
of agent for service)
copy to:
MICHAEL L. ANDRESINO, ESQ.
Posternak Blankstein & Lund LLP
Prudential Tower
800 Boylston Street
Boston, MA 02199-8004
(617) 973-6100
--------------------
================================================================================
Calculation of Registration Fee
- --------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities to Amount to be Price Offering Registration
be Registered Registered (1) Per Share (2) Price (2) Fee
- ------------- --------------- -------------- -------------- ------
Common Stock
$0.01 par value 250,000 shares $30.14 $7,535,000 $954.69
- --------------------------------------------------------------------------------
(1) Pursuant to Rule 416(a), this Registration Statement also covers such
additional securities that may be offered to prevent dilution as a
result of a stock split, stock dividend, or other similar transaction.
(2) This estimate is made pursuant to Rule 457(c) and (h) under the
Securities Act of 1933, as amended (the "Securities Act"), solely for
purposes of determining the registration fee and is based upon the
market value of outstanding shares of the Company's common stock on
June 10, 2004, utilizing the average ($30.14) of the high ($30.50) and
low ($29.77) sale prices reported on the NASDAQ National Market System
for that date.
================================================================================
2
This Registration Statement is being filed to register an additional
250,000 shares of our common stock issuable pursuant to the provisions of our
2001 Stock Plan, as recently amended. The earlier Registration Statement that we
filed with the Securities and Exchange Commission ("SEC") on August 1, 2001
(File No. 333-66446) relating to our 2001 Stock Plan is incorporated by
reference into this Registration Statement. This incorporation is made under
General Instruction E of Form S-8 regarding the registration of additional
securities of the same class as other securities for which there has been filed
a Registration Statement on Form S-8 relating to the same employee benefit plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The SEC allows us to "incorporate by reference" in this registration
statement the information in the documents that we file with the SEC, 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 registration statement, and information in documents that we file
later with the SEC will automatically update and supersede information contained
in documents filed earlier with the SEC or contained in this registration
statement. We incorporate by reference in this registration statement the
documents listed below and any future filings that we may make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Ac of 1934,
as amended (the "Exchange Act"), until all of the securities that may be offered
by this registration statement are sold, except that we are not incorporating by
reference any information that is not deemed to be filed under those sections.
o Our Annual Report on Form 10-K for the fiscal year ended December 31,
2003;
o Our Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 2004; and
o The description of our common stock contained in our Registration
Statement on Form 8-A (File No. 000-23092) filed under the Exchange
Act.
We will furnish without charge to you, upon written or oral request, a
copy of any or all of the documents described above, except for exhibits to
those documents, unless the exhibits are specifically incorporated by reference
into those documents. Requests for copies should be addressed to:
National Dentex Corporation
Attention: Richard F. Becker, Jr.
526 Boston Post Road
Wayland, MA 01778
Telephone: (508) 358-4422
3
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
The validity of the shares to be offered hereby will be passed upon for
us by Posternak Blankstein & Lund LLP ("PBL") of Boston, Massachusetts. Donald
H. Siegel, P.C., a partner of PBL, serves as our Clerk.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 67 of the Massachusetts Business Corporation Law, as currently
in force and effect, provides that a corporation may indemnify its directors,
officers, employees or other agents. Section 13(b) (1-1/2) of the Massachusetts
Business Corporation Law provides that the Articles of Organization may contain
a provision eliminating or limiting the personal liability of directors to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision shall not eliminate or limit
the liability of a director (i) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Sections 61 or 62 of the Massachusetts Business Corporation Law, or
(iv) for any transaction from which the director derived an improper personal
benefit.
Article Six of our Articles of Organization, as amended, eliminates the
personal liability of each member of our Board of Directors to National Dentex
Corporation (the "Company") or its stockholders for monetary damages for breach
of fiduciary duty as a director. However, the liability of a director is not
eliminated (i) for any breach of such director's duty of loyalty to the Company
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Sections 61 or 62 of the Massachusetts Business Corporation Law, or any
amendatory or successor provision thereto, or (iv) for any transaction from
which such director derived an improper personal benefit. This provision is
intended to afford directors additional protection, and limit their potential
liability, from suits alleging a breach of duty of care by a director. We
believe that this provision will assist us in maintaining and securing the
services of directors who are not employees of the Company. As a result of the
inclusion of such a provision, stockholders may be unable to recover monetary
damages against directors for actions taken by them that constitute fiduciary
duties, although it may be possible to obtain injunctive or other equitable
relief with respect to such actions. If equitable remedies are found not to be
available to stockholders for any particular case, stockholders may not have any
effective remedy against the challenged conduct.
Our By-Laws also provide that directors and officers shall be
indemnified against liabilities arising from their service as directors or
officers to the fullest extent permitted by Massachusetts law, which generally
requires that the individual act in good faith and in a manner he reasonably
believes to be in or not opposed to the Company's best interests.
4
We have an insurance policy that insures our directors and officers
against certain liabilities which may be incurred in connection with the
performance of their duties.
A new Massachusetts Business Corporation Act will become effective on
July 1, 2004. Although the scope of permissive indemnification of directors and
officers is not fundamentally different in the new Massachusetts statute, there
are some differences of detail between Section 8.51 of the new statute and
Section 67 of the existing statute, which is described above. We will be
reviewing our Articles of Organization and By-Laws, as amended and currently in
effect, to determine what changes, if any, are necessary or advisable in light
of the new statute. Independent of any action on our part, Section 8.52 of the
new statute requires all Massachusetts corporations to indemnify a director who
is wholly successful in the defense of any proceeding to which he was a party
because he was a director of the corporation against reasonable expenses
incurred by him in connection with the proceeding.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement.
Exhibit
4.1 Restated Articles of Organization of the Company, filed with the
Massachusetts Secretary of State on October 14, 1993 (incorporated by
reference to the Company's Registration Statement on Form S-1 (File No.
333-70440) declared effective by the SEC on December 21, 1993).
4.2 By-Laws of the Company, as amended December 31, 1982 and May 26, 1992
(incorporated by reference to the Company's Registration Statement on
Form S-1 (File No. 333-70440) declared effective by the SEC on December
21, 1993).
4.3 2001 Stock Plan, as amended on April 10, 2001 (incorporated by
reference from the Registration Statement on Form S-8 (File No.
333-66446) as filed with the SEC on August 1, 2001).
4.4 Second Amendment to 2001 Stock Plan, dated as of April 13, 2004
(filed herewith).
5.1 Opinion of Posternak Blankstein & Lund LLP as to the legality of the
securities being registered (filed herewith).
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith).
5
23.2 Consent of Counsel, contained in its opinion filed as Exhibit 5.1.
24.1 Power of Attorney, included on the signature pages hereto.
Item 9. Undertakings.
------------
a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a) (3) of 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 the registration
statement; and
(iii) To include any material information with
respect to the distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a) (l) (i) and (a) (1)
(ii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnish to the
Commission by the undersigned registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement;
(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; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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.
6
c) Insofar as indemnification for liabilities arising under the
Securities Act 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
Securities Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Wayland, Commonwealth of Massachusetts, on this 16th
day of June, 2004.
NATIONAL DENTEX CORPORATION
By: /s/ DAVID L. BROWN
--------------------------------------------------
David L. Brown, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Each person whose signature appears below hereby severally constitutes
and appoints David L. Brown and Richard F. Becker, Jr. and each of them singly
as his true and lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities to sign any or all amendments or post-effective amendments to this
registration statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, acting singly, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or their substitutes, may lawfully do or
cause to be done by virtue hereof.
By: /s/ DAVID V. HARKINS
-------------------------------------------
David V. Harkins, Chairman of the Board
and Director
June 16, 2004
By: /s/ JACK R. CROSBY
-------------------------------------------
Jack R. Crosby, Director
June 16, 2004
By: /s/ DANIEL A. GRADY
-------------------------------------------
Daniel A. Grady, Director
June 16, 2004
8
By: /s/ NORMAN F. STRATE
-------------------------------------------
Norman F. Strate, Director
June 16, 2004
By: /s/ DAVID L. BROWN
-------------------------------------------
David L. Brown, President, Chief
Executive Officer, and Director
(Principal Executive Officer)
June 16, 2004
By: /s/ RICHARD F. BECKER, JR.
------------------------------------------
Richard F. Becker, Jr., Vice
President, Finance, and Chief
Financial Officer (Principal
Financial and Accounting Officer)
June 16, 2004
9