As filed
with the Securities and Exchange Commission on November 9, 2009
Registration
No. 333-
SECURITIES
AND EXCHANGE COMMISSION
Washington, DC 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 or organization)
|
|
(I.R.S.
Employer Identification No.)
|
525
Lincoln Drive West
5
Greentree Center, Suite 117
Marlton,
New Jersey 08053
(Address
of principal executive offices) (Zip Code)
Emtec,
Inc. 2006 Stock-Based Incentive Compensation Plan
(Full
title of the Plan)
Dinesh
R. Desai
Chief
Executive Officer
Emtec,
Inc.
525
Lincoln Drive West
5
Greentree Center, Suite 117
Marlton,
New Jersey 08053
(Name
and address of agent for service)
(856)
552-4204
(Telephone
number, including area code, of agent for service)
With a copy to:
Stephen
M. Leitzell, Esq.
Dechert
LLP
Cira
Centre
2929
Arch Street
Philadelphia,
Pennsylvania 19104
(215)
994-4000
Indicate
by check mark whether the Registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
definition of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
|
Large
accelerated filer o
|
Accelerated
filer o
|
|
Non-accelerated
filer o
|
Smaller
reporting company x
|
|
(Do
not check if a smaller reporting company)
|
|
CALCULATION
OF REGISTRATION FEE
|
Title
of Securities to be Registered
|
|
Amount
to be Registered (1)
|
|
|
Proposed
Maximum Offering Price Per Share (2)
|
|
|
Proposed
Maximum Aggregate Offering
Price
(2)
|
|
|
Amount
of Registration Fee
|
|
|
Common
Stock of Emtec, Inc., par value $0.01 per share (“Common
Stock”).
|
|
|
1,143,207 |
|
|
$ |
0.99 |
|
|
$ |
1,131,774.93 |
|
|
$ |
63.16 |
|
|
Total
|
|
|
1,143,207 |
|
|
$ |
0.99 |
|
|
$ |
1,131,774.93 |
|
|
$ |
63.16 |
|
|
(1)
|
Pursuant
to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities
Act”), this Registration Statement shall also cover any additional shares
of Common Stock which become issuable under the Emtec, Inc. 2006
Stock-Based Incentive Compensation Plan (the “Plan”) by reason of any
stock dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an increase
in the number of the outstanding shares of the
Registrant.
|
|
(2)
|
A
maximum offering price of $0.99 was estimated in accordance with Rule
457(c) and Rule 457(h) of the Securities Act solely for purposes of
calculating the registration fee, based upon the average high and low
prices of Common Stock on November 4, 2009, as reported on the Over The
Counter Bulletin Board.
|
EXPLANATORY
NOTE
Pursuant
to General Instruction E of Form S-8, this Registration Statement registers
additional securities of the same class as other securities for which a
registration statement on Form S-8 of the Registrant relating to the Plan is
effective. The original registration statement on Form S-8 for the
Plan (File No. 333-136355) registered 1,400,000 shares of Common
Stock. This Registration Statement registers an additional 1,143,207
shares of Common Stock under the Plan.
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Pursuant to General Instruction E of
Form S-8, the Registrant hereby incorporates by reference the registration
statement on Form S-8 previously filed by the Registrant with the Securities and
Exchange Commission (the “Commission”) on August 7, 2006 (File No. 333-136355)
in connection with the Plan, provided that Item 6 of such registration statement
on Form S-8 is not incorporated herein by reference and is hereby replaced in
this Registration Statement with Item 6 below.
Item
6. Indemnification of Directors and Officers.
The
indemnification of officers and directors of the Registrant is governed by
Section 145 of the General Corporation Law of the State of Delaware (the
“DGCL”), the Registrant’s certificate of incorporation and
bylaws. Subsection (a) of DGCL Section 145 empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that the person 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, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person acted in good faith and in a
manner the person 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 the person’s conduct was
unlawful.
Subsection
(b) of DGCL Section 145 empowers a corporation to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person 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, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys’ fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem
proper.
DGCL
Section 145 further provides that to the extent that a present or former
director or officer is successful, on the merits or otherwise, in the defense of
any action, suit or proceeding referred to in subsections (a) and (b) of Section
145, or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection therewith. In all cases in which
indemnification is permitted under subsections (a) and (b) of Section 145
(unless ordered by a court), it shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
present or former director, officer, employee or agent is proper in the
circumstances because the applicable standard of conduct has been met by the
party to be indemnified. Such determination must be made, with respect to a
person who is a director or officer at the time of such determination, (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the stockholders.
The statute authorizes the corporation to pay expenses incurred by an officer or
director in advance of the final disposition of a proceeding upon receipt of an
undertaking by or on behalf of the person to whom the advance will be made, to
repay the advances if it shall ultimately be determined that he was not entitled
to indemnification. DGCL Section 145 also provides that indemnification and
advancement of expenses permitted thereunder are not to be exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. DGCL Section 145 also authorizes the
corporation to purchase and maintain liability insurance on behalf of its
directors, officers, employees and agents regardless of whether the corporation
would have the statutory power to indemnify such persons against the liabilities
insured.
The
Registrant’s certificate of incorporation provides that its directors shall not
be liable to the Registrant or its stockholders for monetary damages for breach
of fiduciary duty as a director to the fullest extent permitted by the current
DGCL or as the DGCL may hereafter be amended. DGCL Section 102(b)(7)
provides that the personal liability of a director to a corporation or its
stockholders for breach of fiduciary duty as a director may be eliminated except
for liability (1) for any breach of the director’s duty of loyalty to the
Registrant or its stockholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3) under
Section 174 of the DGCL, relating to unlawful payment of dividends or unlawful
stock purchases or redemption of stock or (4) for any transaction from which the
director derives an improper personal benefit.
The
Registrant’s bylaws provide for the indemnification of any person to the full
extent permitted, and in the manner provided, by the current DGCL or as the DGCL
may hereafter be amended.
The
Registrant also maintains director and officer liability insurance on behalf of
its directors and officers in the aggregate amount of $5.0
million. Section 145(g) of the DGCL provides that a corporation shall
have power 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, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person’s status as
such, whether or not the corporation would have the power to indemnify such
person against such liability under that section.
Item
8. Exhibits.
The
following exhibits filed herewith are incorporated by reference as part of this
Registration Statement:
|
|
The
Registrant’s Certificate of Incorporation, as amended (incorporated by
reference to Exhibit 3.1 to the Registrant’s Registration Statement on
Form 10, filed with the Commission on May 22, 2001).
|
|
|
|
|
3.2
|
The
Registrant’s Amended and Restated Bylaws (incorporated by reference to
Exhibit 3.2 to the Registrant’s Registration Statement on Form 10, filed
with the Commission on May 22, 2001).
|
|
|
|
|
4.1
|
Certificate
evidencing shares of Common Stock (incorporated by reference to Exhibit
4.1 to the Registrant’s Registration Statement on Form 10, filed with the
Commission on May 22, 2001).
|
| |
|
|
5.1
|
Opinion
of Dechert LLP as to the legality of the securities being
registered.
|
|
23.1
|
Consent
of Dechert LLP (included in Exhibit 5.1).
|
|
|
|
|
23.2
|
Consent
of McGladrey & Pullen, LLP.
|
|
|
|
|
24.1
|
Power
of Attorney (included on signature pages to this Registration Statement
and incorporated herein by reference).
|
|
|
|
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 of 1933;
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 filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective registration statement; and
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.
Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the registration statement is on Form S-8, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
2. That, for the purpose of
determining any liability under the Securities Act of 1933, 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 the offering.
(b) The undersigned registrant
hereby undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant’s annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to section 15(d) of the Securities Exchange Act
of 1934) 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.
(c) Insofar as indemnification for
liabilities arising under the Securities Act of 1933 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.
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 Act and
will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, 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 Marlton,
State of New Jersey, on the 9th day of November, 2009.
| |
EMTEC,
INC. |
|
| |
|
|
|
|
|
By:
|
/s/
Dinesh R. Desai |
|
| |
|
Name: Dinesh
R. Desai |
|
| |
|
Title:
Chief Executive Officer,
President
and Chairman
|
|
| |
|
|
|
POWER
OF ATTORNEY
KNOW BY
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Dinesh R. Desai, his attorney-in-fact and agent, with
the power of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any amendments (including post-effective amendments) to
this Registration Statement, and to file with the Commission, granting unto 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
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
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has been
signed by the following persons in the capacities and on the dates
indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
| |
|
|
|
|
|
/s/
Dinesh R. Desai
Dinesh
R. Desai
|
|
Chief
Executive Officer, President and Chairman (principal executive
officer)
|
|
November
9, 2009
|
|
|
|
|
|
/s/
Gregory P. Chandler
Gregory
P. Chandler
|
|
Chief
Financial Officer, Chief Accounting Officer and Director (principal
financial officer and principal accounting officer)
|
|
November
9, 2009
|
|
|
|
|
|
|
|
/s/
Brian McAdams
Brian
McAdams
|
|
Vice
Chairman, Director
|
|
November
9, 2009
|
|
|
|
|
|
|
|
/s/
Gregory L. Cowan
Gregory
L. Cowan
|
|
Director
|
|
November
9, 2009
|
|
|
|
|
|
|
|
/s/
Keith Grabel
Keith
Grabel
|
|
Director
|
|
November
9, 2009
|
|
|
|
|
|
|
|
/s/
Robert Mannarino
Robert
Mannarino
|
|
Director
|
|
November
9, 2009
|