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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 30, 1996
REGISTRATION NO. 33-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NU-KOTE HOLDING, INC.
(Exact name of issuer as specified in charter)
DELAWARE 16-1296153
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
17950 PRESTON ROAD
SUITE 690, LB 21, DALLAS, TEXAS 75252
(Address of principal executive offices) (Zip Code)
NU-KOTE HOLDING, INC. DEFERRED STOCK COMPENSATION PLAN
(Full title of the plan)
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ANTHONY G. SCHMECK
SECRETARY
17950 PRESTON ROAD
SUITE 690, LB 21
DALLAS, TEXAS 75252
(Name and address of agent for service)
(214) 250-2785
(Telephone number, including area code, of agent for service)
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COPY TO:
ALAN JACOBS, ESQ.
MCGLINCHEY STAFFORD LANG
A PROFESSIONAL LIMITED LIABILITY COMPANY
2777 STEMMONS FREEWAY
SUITE 925
DALLAS, TEXAS 75207
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO TO BE PRICE PER OFFERING REGISTRATION
BE REGISTERED REGISTERED SHARE PRICE FEE
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Class A Common Stock,
$.01 par value(1).............. 75,000(2) $810,750 $10.81 $280 (3)
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(1) Each share includes a preferred share purchase right under the Rights
Agreement, dated as of May 19, 1994, as amended.
(2) Based upon the maximum number of shares estimated to be issued pursuant to
elections made pursuant to the Nu-kote Holding, Inc. Deferred Stock
Compensation Plan.
(3) Computed pursuant to Rules 457(c) and 457(h) solely for the purpose of
determining the registration fee, based upon the average of the high and
low sales price of Nu-kote Holding, Inc. Class A Common Stock on September
25, 1996, as quoted on the NASDAQ--National Market System.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Incorporated by reference in this Registration Statement are the following
documents heretofore filed by Nu-kote Holding, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Act of 1933 (the "Securities Act") and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"):
(a) The Company's latest prospectus filed pursuant to Rule 424(b) under
the Securities Act that contains audited financial statements for the
Company's latest fiscal year for which such statements have been
filed;
(b) All other reports filed by the Company pursuant to Section 13(a) or
Section 15(d) of the Exchange Act since the end of the fiscal year
covered by the prospectus referred to in paragraph (a) above;
(c) The description of the Company's Class A Common Stock, par value $.01
per share (the "Common Stock"), contained in a registration statement
filed under the Exchange Act, and any amendment or report filed for
the purpose of updating such description; and
(d) The description of the Company's Preferred Share Purchase Rights,
contained in a registration statement filed under the Exchange Act,
and any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment that indicates that all securities offered hereby have been sold or
that deregisters all such securities then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and to be part
hereof from the dates of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
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Item 6. Indemnification of Directors and Officers
The Company, as a Delaware corporation, is empowered by Section 145 of the
General Corporation Law of the State of Delaware (the "DGCL"), subject to the
procedures and limitations stated therein, to indemnify any person against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with any
threatened, pending or completed action, suit or proceeding in which such person
is made a party by reason of his being or having been a director, officer,
employee or agent of the Company. The statute provides that indemnification
pursuant to its provisions is not exclusive of other rights of indemnification
to which a person may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise. Article VI of the
Company's Bylaws provides for indemnification by the Company of its directors
and officers to the full extent permitted by the DGCL. Pursuant to Section 145
of the DGCL, the Company has purchased insurance on behalf of its present and
former directors and officers against any liability asserted against or incurred
by them in such capacity or arising out of their status as such.
Pursuant to specific authority granted by Section 102 of the DGCL,
Article FIFTH of the Company's Amended and Restated Certificate of
Incorporation contains the following provision regarding limitation of
liability of directors:
"(d) No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for breach of his or her fiduciary
duty as a director, provided that nothing contained in this Certificate of
Incorporation shall 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 knowing violation of the law, (iii) under Section
174 of the General Corporation Law of the State of Delaware, or (iv) for
any transaction from which the director derives an improper personal
benefit."
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit
No. Description of Exhibit
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4.1 Amended and Restated Certificate of Incorporation of Nu-kote Holding,
Inc. ("Holding") (incorporated herein by reference to Exhibit 3(a) of
Amendment No. 1, as filed with the Commission on August 24, 1992
("Amendment No. 1") to Holding's Registration Statement on Form S-1
(File No. 33-481012), filed with the Commission on May 22, 1992
("Holding's 1992 Form S-1")).
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Exhibit
No. Description of Exhibit
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4.2 Certificate of Amendment to Amended and Restated
Certificate of Incorporation, dated August 4, 1994
(incorporated herein by reference to Exhibit 3.1(a) of
Holding's Annual Report on Form 10-K for the year ended
March 31, 1995 (File No. 0-20287) ("Holding's 1995 Form
10-K")).
4.3 Certificate of Designations of Holding, dated May 19, 1994
(incorporated herein by reference to Exhibit 3.1(b) of
Holding's 1995 Form 10-K).
4.4 Certificate of Increase of Holding, dated February 10,
1995 (incorporated herein by reference to Exhibit 3.1(c)
of Holding's 1995 Form 10-K).
4.5 Certificate of Amendment to Amended and Restated
Certificate of Incorporation, dated September 7, 1995
(incorporated herein by reference to Exhibit 4.5 of
Holding's Registration Statement on Form S-8 (File No.
33-97396), filed with the Commission on September 28,
1995).
4.6 Bylaws of Holding (incorporated herein by reference to
Exhibit 3.2 of Holding's 1995 Form 10-K).
4.7 Form of Stock Certificate for Class A Common Stock, par
value $.01 per share (incorporated herein by reference to
Exhibit 4(c) of Amendment No. 2 as filed with the
Commission on September 18, 1992 ("Amendment No. 2") to
Holding's 1992 Form S-1).
4.8 Form of Stock Certificate for Class B Common Stock, par
value $.01 per share (incorporated herein by reference to
Exhibit 4(d) of Amendment No. 2 to Holding's 1992 Form
S-1).
4.9 Rights Agreement, dated as of May 19, 1994, between
Holding and Chemical Bank (incorporated herein by
reference to Exhibit 1 to Holding's Form 8-A, as filed
with the Commission on May 20, 1994).
4.10 Amendment No. 1 to Rights Agreement, dated as of November
15, 1994, between Holding and Chemical Bank (incorporated
herein by reference to Exhibit 2 of Holding's Form 8-A/A,
as filed with the Commission on February 24, 1995).
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Exhibit
No. Description of Exhibit
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4.11 Registration Rights Agreement, dated as of February 24,
1995, between Holding, Pelikan Holding AG, Pelikan, Inc.,
Caribonum, Limited., Pelikan GmbH and Pelikan International
Handelsgesellschaft mbH & Co, KG (Hanover) (incorporated
herein by reference to Exhibit E to Annex A of Holding's
Definitive Proxy Statement, as filed with the Commission on
February 10, 1995).
5.1 Opinion of McGlinchey Stafford Lang, A Professional Limited Liability
Company.
23.1 Consent of McGlinchey Stafford Lang, A Professional Limited Liability
Company (filed herewith as part of Exhibit 5.1 hereto).
23.2 Consent of Coopers & Lybrand.
ITEM 9. UNDERTAKINGS
(a) RULE 415 OFFERING. 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
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 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) SUBSEQUENT EXCHANGE ACT DOCUMENTS. 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 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 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.
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(c) INDEMNIFICATION. 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.
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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 Dallas, State of Texas, on September 30, 1996.
NU-KOTE HOLDING, INC.
By: /s/ DAVID F. BRIGANTE
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David F. Brigante
Chairman of the Board
and Chief Executive Officer
By: /s/ ANTHONY G. SCHMECK
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Anthony G. Schmeck
Senior Vice President-Finance
Corporate Controller and Secretary
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.
SIGNATURES TITLE DATE
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/s/ THEODORE BARRY
- -------------------------- Director September 30, 1996
Theodore Barry
- -------------------------- Director September , 1996
Donald A. Bolke
/s/ DAVID F. BRIGANTE Chairman of the Board September 30, 1996
- -------------------------- and Chief Executive
David F. Brigante Officer
S-1
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SIGNATURES TITLE DATE
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/s/ RICHARD C. DRESDALE Director September 30, 1996
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Richard C. Dresdale
- -------------------------- Director September , 1996
Brian D. Finn
/s/ HUBBARD C. HOWE
- -------------------------- Director September 30, 1996
Hubbard C. Howe
/s/ DANIEL M. KERRANE Director, Executive September 30, 1996
- -------------------------- Vice President and
Daniel M. Kerrane Chief Financial Officer
/s/ JOHN P. ROCHON Director September 30, 1996
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John P. Rochon
S-2
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INDEX TO EXHIBITS
SEQUENTIAL
EXHIBIT NO. DESCRIPTION OF EXHIBIT PAGE NUMBER
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4.1 Amended and Restated Certificate of Incorporation
of Nu-kote Holding, Inc. ("Holding") (incorporated
herein by reference to Exhibit 3(a) of Amendment
No. 1, as filed with the Commission on August 24,
1992 ("Amendment No. 1") to Holding's Registration
Statement on Form S-1 (File No. 33-481012), filed
with the Commission on May 22, 1992 ("Holding's
1992 Form S-1")).
4.2 Certificate of Amendment to Amended and Restated
Certificate of Incorporation, dated August 4, 1994
(incorporated herein by reference to Exhibit 3.1(a)
of Holding's Annual Report on Form 10-K for the
year ended March 31, 1995 (File No. 0-20287)
("Holding's 1995 Form 10-K")).
4.3 Certificate of Designations of Holding, dated
May 19, 1994 (incorporated herein by reference to
Exhibit 3.1(b) of Holding's 1995 Form 10-K).
4.4 Certificate of Increase of Holding, dated
February 10, 1995 (incorporated herein by reference
to Exhibit 3.1(c) of Holding's 1995 Form 10-K).
4.5 Certificate of Amendment to Amended and Restated
Certificate of Incorporation, dated September 7,
1995 (incorporated herein by reference to
Exhibit 4.5 of Holding's Registration Statement on
Form S-8 (File No. 33-97396), filed with the
Commission on September 28, 1995).
(i)
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SEQUENTIAL
EXHIBIT NO. DESCRIPTION OF EXHIBIT PAGE NUMBER
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4.6 Bylaws of Holding (incorporated herein by
reference to Exhibit 3.2 of Holding's 1995
Form 10-K).
4.7 Form of Stock Certificate for Class A Common
Stock, par value $.01 per share (incorporated
herein by reference to Exhibit 4(c) of Amendment
No. 2 as filed with the Commission on September 18,
1992 ("Amendment No. 2") to Holding's 1992
Form S-1).
4.8 Form of Stock Certificate for Class B Common
Stock, par value $.01 per share (incorporated
herein by reference to Exhibit 4(d) of Amendment
No. 2 to Holding's 1992 Form S-1).
4.9 Rights Agreement, dated as of May 19, 1994,
between Holding and Chemical Bank (incorporated
herein by reference to Exhibit 1 to Holding's
Form 8-A, as filed with the Commission on
May 20, 1994).
4.10 Amendment No. 1 to Rights Agreement, dated as of
November 15, 1994, between Holding and Chemical
Bank (incorporated herein by reference to Exhibit 2
of Holding's Form 8-A/A, as filed with the
Commission on February 24, 1995).
(ii)
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SEQUENTIAL
EXHIBIT NO. DESCRIPTION OF EXHIBIT PAGE NUMBER
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4.11 Registration Rights Agreement, dated as of
February 24, 1995, between Holding, Pelikan
Holding AG, Pelikan, Inc., Caribonum, Limited.,
Pelikan GmbH and Pelikan International
Handelsgesellschaft mbH & Co, KG (Hanover)
(incorporated herein by reference to Exhibit E to
Annex A of Holding's Definitive Proxy Statement,
as filed with the Commission on February 10, 1995).
5.1 Opinion of McGlinchey Stafford Lang, A Professional
Limited Liability Company.
23.1 Consent of McGlinchey Stafford Lang, A Professional
Limited Liability Company (filed herewith as part
of Exhibit 5.1 hereto).
23.2 Consent of Coopers & Lybrand.
(iii)
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[MCGLINCHEY STAFFORD LANG LETTERHEAD]
September 30, 1996
Nu-kote Holding, Inc.
17950 Preston Road
Suite 690
Dallas, Texas 75252
Re: 75,000 Shares of Class A Common Stock, par value
$.01 per share of Nu-kote Holding, Inc.
Gentlemen:
We have acted as counsel for Nu-kote Holding, Inc., a Delaware
corporation (the "Company"), in connection with the issuance of 75,000 shares
of Class A Common Stock, par value $.01 per share, of the Company (the
"Shares"), pursuant to the Nu-kote Holding, Inc. Deferred Stock Compensation
Plan as Amended and Restated September 27, 1996 (the "Plan"), as described in
that certain Registration Statement on Form S-8, dated September 30, 1996,
filed by the Company to effect registration of the Shares under the
Securities Act of 1933 (the "Registration Statement").
We have examined the Plan and such other documents, records and matters
of law as we have deemed necessary for purposes of this opinion. Based on the
foregoing, we are of the opinion that the Shares which may be issued pursuant
to the Plan will be, when issued in accordance with the Plan, duly
authorized, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
McGLINCHEY STAFFORD LANG,
A Professional Limited Liability Company
By: /s/ ALAN JACOBS
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Alan Jacobs
Member
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of Nu-kote Holding, Inc. on Form S-8 of our report dated May 23,
1996, on our audits of the consolidated financial statements and financial
statement schedules of Nu-kote Holding, Inc. as of March 31, 1996 and 1995,
and for the years ended December 31, 1996, 1995, and 1994.
[SIGCUT]
COOPERS & LYBRAND L.L.P.
Dallas, Texas
September 27, 1996
