As filed with the Securities and Exchange Commission on February 7, 2005
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EMTEC, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 87-0273300
(State of Incorporation) (I.R.S. Employer Identification No.)
572 WHITEHEAD ROAD
TRENTON, NEW JERSEY 08610
(Address of Principal Executive Offices)
EMTEC, INC. 1996 STOCK OPTION PLAN
(Full Title of the Plan)
JOHN P. HOWLETT
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
EMTEC, INC.
572 WHITEHEAD ROAD
TRENTON, NEW JERSEY 08610
(609) 528-8500
(Name, Address and Telephone Number of Agent for Service)
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CALCULATION OF REGISTRATION FEE
-------------------------------- -------------------- ----------------------- ------------------------ ----------------------
TITLE OF EACH PROPOSED PROPOSED
CLASS OF SECURITIES AMOUNT TO MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED (1) BE REGISTERED PRICE PER SHARE (4) OFFERING PRICE REGISTRATION FEE
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Common Stock, par value
$0.01 per share........... 152,406 shares (2) $1.03 $ 156,978.18 $ 18.48
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Common Stock, par value
$0.01 per share........... 39,712 shares (2) $1.00 $ 39,712.00 $ 4.67
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Common Stock, par value
$0.01 per share........... 30,000 shares (2) $0.55 $ 16,500.00 $ 1.94
-------------------------------- -------------------- ----------------------- ------------------------ ----------------------
Common Stock, par value
$0.01 per share........... 136,000 shares (2) $0.29 $ 39,440.00 $ 4.64
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Common Stock, par value
$0.01 per share........... 30,000 shares (2) $0.44 $ 13,200.00 $ 1.55
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Common Stock, par value
$0.01 per share........... 60,000 shares (2) $0.86 $ 51,600.00 $ 6.07
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Common Stock, par value
$0.01 per share........... 551,882 shares (3) $2.735 $1,509,397.27 $177.66
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Total..................................................................................................... $215.01
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this
registration statement also covers any additional securities that may be
offered or issued in connection with any stock split, stock dividend or
similar transaction.
(2) Represents shares underlying options granted under the 1996 Stock Option
Plan.
(3) Represents shares underlying options available for grant under the 1996
Stock Option Plan.
(4) Calculated pursuant to Rule 457(h)(1) under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Emtec, Inc. (the "Registrant") with the
Securities and Exchange Commission (the "Commission") (File No. 0-32789) are
hereby incorporated by reference and made a part of this Registration Statement:
o The Registrant's annual report on Form 10-K for the year ended March
31, 2004;
o The Registrant's quarterly report on Form 10-Q for the three months
ended June 30, 2004;
o The Registrant's quarterly report on Form 10-Q for the three and six
months ended September 30, 2004;
o The Registrant's current report on Form 8-K dated December 10, 2004
and filed with the Commission on December 14, 2004;
o Item 12 in Amendment No. 2 to the Registrant's registration statement
on Form 10 containing a description of the Registrant's common stock,
par value $0.01 per share, filed with the Commission on August 8,
2001.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") on or
after the date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities registered hereby have been sold or which deregisters such securities
then remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents, except for information furnished to the Commission that is not deemed
to be "filed" for purposes of the Exchange Act (such documents, and the
documents listed above, being hereinafter referred to as "Incorporated
Documents"). Any statement contained in an Incorporated Document shall be deemed
to be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's certificate of incorporation provides that its directors
shall not be personally liable to it or its stockholders for monetary damages
for breach of fiduciary duty a director, except for liability (i) for any breach
of the director's duty of loyalty to the Registrant 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 Section 174 of the Delaware General
Corporation Law, relating to unlawful payment of dividends or unlawful stock
purchases or redemption of stock or (iv) for any transaction from which the
director derives an improper personal benefit. As a result of this provision,
the Registrant and its stockholders may be unable to obtain monetary damages
from a director for breach of his or her duty of care.
The Registrant's certificate of incorporation and bylaws provide for the
indemnification of its directors and officers and, to the extent authorized by
the board in its sole and absolute discretion, employees and agents, to the
fullest extent authorized by, and subject to the conditions set forth in the
Delaware general corporation law, except that the Registrant will indemnify a
director or officer in connection with a proceeding initiated by such personally
if the proceeding was authorized by the Registrant's board. The indemnification
provided under the Registrant's certificate of incorporation and bylaws includes
the right to be paid the expenses, including attorneys' fees, in advance of any
proceeding for which indemnification may be had, provided that the payment of
such expenses incurred by a director, officer, employee or agent in advance of
the final disposition of a proceeding may be made only upon delivery to the
Registrant of an undertaking by or on behalf of the director, officer, employee
or agent to repay all amounts so paid in advance if it is ultimately determined
that the director of officer is not entitled to be indemnified.
Under the Registrant's bylaws, the Registrant has the power to purchase and
maintain insurance on behalf of any person who is or was one of its directors,
officers, employees or agents, against any liability asserted against the person
of incurred by the person in any such capacity, or arising out of the person's
status as such, and related expenses, whether or not the Registrant would have
the power to indemnify the person against such liability under the provisions of
the Delaware general corporation law. The Registrant currently has director and
officer liability insurance on behalf of its directors and officers in the
aggregate amount of $1 million.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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4.1* 1996 Stock Option Plan, as amended (included as an exhibit
in Registrant's Registration Statement on Form 10 filed
on May 22, 2001)
4.2* Certificate of Incorporation, as amended, of the Registrant
(included as an exhibit in Registrant's Registration
Statement on Form 10 filed on May 22, 2001)
4.3* Amended and Restated Bylaws of Registrant (included as an
exhibit in Registrant's Registration Statement on Form
10 filed on May 22, 2001)
4.4* Certificate evidencing shares of common stock of Registrant
(included as an exhibit in Registrant's Registration
Statement on Form 10 filed on May 22, 2001)
5.1 Opinion of Sonnenschein Nath & Rosenthal LLP relating to the
validity of the securities
23.1 Consent of Baratz & Associates, P.A., Registered Public
Accounting Firm
23.2 Consent of Sonnenschein Nath & Rosenthal LLP (contained in
Exhibit 5.1)
24.1 Power of Attorney (Included as part of signature page)
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* The exhibits have previously been filed with the Securities and Exchange
Commission as part of the filing indicated and are incorporated herein by
reference.
ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, 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 (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this 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; and
(iii)to include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i)
and (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 furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this 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.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered hereby which remain unsold at the
termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of Registrant'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 this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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 provisions of the restated certificate of
incorporation and By-laws of the Registrant and the provisions of the Delaware
law described under Item 6 above, 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.
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 City of Trenton and State of New Jersey on this 4th day of
February, 2005.
Emtec, Inc.
By: /s/ John P. Howlett
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John P. Howlett
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John P. Howlett and Sam Bhatt, and each or either
of them, as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution for him and in his name, place and stead, in any
and all capacities to approve, sign and file with the U.S. Securities and
Exchange Commission and any other appropriate authorities the original of any
and all amendments (including post-effective amendments) to this Registration
Statement and any other documents in connection therewith, granting unto each
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully 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, or either of them, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
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 the dates indicated.
SIGNATURE TITLE DATE
Chairman and Chief Executive Officer (Principal
/s/ John P. Howlett Executive Officer) February 4, 2005
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John P. Howlett
Vice President-Finance
(Principal Financial Officer and Principal
/s/ Sam Bhatt Accounting Officer) February 4, 2005
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Sam Bhatt
President, Chief Operating Officer and Director
February 4, 2005
/s/ Ronald A. Seitz
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Ronald A Seitz
February 4, 2005
/a/ Frank Jerd Director
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Frank Jerd
February 4, 2005
/s/ George F. Raymond Director
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George F. Raymond
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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4.1* 1996 Stock Option Plan, as amended (included as an exhibit in
Registrant's Registration Statement on Form 10 filed on May
22, 2001)
4.2* Certificate of Incorporation, as amended, of the Registrant
(included as an exhibit in Registrant's Registration
Statement on Form 10 filed on May 22, 2001)
4.3* Amended and Restated Bylaws of Registrant (included as an exhibit
in Registrant's Registration Statement on Form 10 filed on
May 22, 2001)
4.4* Certificate evidencing shares of common stock of Registrant
(included as an exhibit in Registrant's Registration
Statement on Form 10 filed on May 22, 2001)
5.1 Opinion of Sonnenschein Nath & Rosenthal LLP relating to the
validity of the securities
23.1 Consent of Baratz & Associates, P.A., Registered Public
Accounting Firm
23.2 Consent of Sonnenschein Nath & Rosenthal LLP (contained in
Exhibit 5.1)
24.1 Power of Attorney (Included as part of signature page)
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* The exhibits have previously been filed with the Securities and Exchange
Commission as part of the filing indicated and are incorporated herein by
reference.