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Registration Statement No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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FOILMARK, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 113101034
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization
5 MALCOLM HOYT DRIVE, NEWBURYPORT, MA 01950
(Address, including zip code
of Principal Executive Offices)
HOLOPAK TECHNOLOGIES, INC. 1993 NON-QUALIFIED STOCK OPTION PLAN
(Full Title of the Plan)
FRANK J. OLSEN, JR.
PRESIDENT
FOILMARK, INC.
5 MALCOLM HOYT DRIVE
NEWBURYPORT, MA 01950
(978) 462-7300
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copies to:
STEPHEN J. CARLOTTI, ESQ.
HINCKLEY, ALLEN & SNYDER
1500 FLEET CENTER
PROVIDENCE, RI 02903
(401) 274-2000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------- ---------------------- ------------------- ---------------------- -----------------
TITLE OF EACH CLASS PROPOSED PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE AMOUNT TO BE MAXIMUM AGGREGATE REGISTRATION FEE
REGISTERED REGISTERED(1) OFFERING PRICE OFFERING PRICE
PER SHARE (2)
- ------------------------- ---------------------- ------------------- ---------------------- -----------------
- ------------------------- ---------------------- ------------------- ---------------------- -----------------
<S> <C> <C> <C> <C>
Common
Stock, par
value $.01 per
share.... 279,211 $2.20 $614,264.20 $170.77
- ------------------------- ---------------------- ------------------- ---------------------- -----------------
</TABLE>
(1) Based on 279,211 shares subject to outstanding options under the HoloPak
1993 Non-Qualified Stock Option Plan (the "HoloPak Plan"), adjusted to reflect
the conversion ratio on the date hereof subject to the Agreement and Plan of
Merger dated as of November 17, 1998 by and among Foilmark, Foilmark Acquisition
Corporation, a wholly-owned subsidiary of Foilmark and HoloPak Technologies,
Inc.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on a weighted average of the exercise price of
the options issued under the HoloPak Plan outstanding as of the date hereof,
adjusted by the conversion ratio to reflect the price at which such options
could be exercised to purchase shares of common stock of Foilmark, Inc.
("Foilmark") on the date hereof.
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by Foilmark with the
Securities and Exchange Commission (the "Commission"), are incorporated by
reference herein and shall be deemed to be a part hereof:
(a) Foilmark's latest Annual Report filed on Form 10-K for the
fiscal year ended December 31, 1998 filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act");
(b) All other reports filed by Foilmark pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year
covered by the Annual Report on Form 10-K set forth in (a)
above; and
(c) The description of Common Stock included in Foilmark's
Registration Statement filed under Section 12 of the Exchange
Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated herein by reference and shall be deemed a part hereof from
the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein 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 document which also is or is
deemed to be incorporated by reference herein 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.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware (the "DGCL")
authorizes and empowers the Registrant to indemnify the directors, officers,
employees and agents of the Registrant against liabilities incurred in
connection with, and related expenses resulting from, any claim or suit brought
against any such person as a result of his relationship with the Registrant,
provided that such persons acted in accordance with a stated standard of conduct
in connection with the acts or events on which such claim, action or suit is
based. The finding of either civil or criminal liability on the part of such
persons in connection with such acts or events is not necessarily determinative
of the questions of whether such persons have met the required standard of
conduct and are, accordingly, entitled to be indemnified.
Article Tenth of the Registrant's Second Amended and Restated
Certificate of Incorporation provides for limited liability and rights of
indemnification of directors and officers of the Registrant to the full extent
permitted by the DGCL. Article Tenth requires the Registrant to indemnify any
person who was or is a party to any threatened, pending or completed action,
suit or proceeding, by reason of the fact that he is or was a director, officer,
employee or agent of the Registrant, or is or was serving at the request of the
Registrant as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys fees), judgments, fines and amounts paid
in settlements actually and reasonably incurred in connection with such actions.
It also authorizes the directors to contract in advance to indemnify such
persons.
In addition, Article X of the Registrant's Restated By-laws requires the
Registrant to indemnify to the full extent permitted by law any person who is or
was made, or threatened to be made, a party to an action, suit or proceeding
(whether civil, criminal, administrative or investigative) by reason of the fact
that he or she or his or her testator or intestate is or was a director, officer
or employee of the Registrant or serves or served any other corporation or
enterprise at the request of the Registrant. Article X also authorizes the
Registrant to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Registrant (or who is or was
serving in such capacity at another corporation or enterprise at the request of
the Registrant) against any liability asserted against him or her and incurred
by him or her in any such capacity or arising out of his or her status as such,
whether or not the Registrant would have the power to indemnify him or her
against such liability under the provisions of its By-laws.
In addition, pursuant to Indemnification Agreements by and between
Foilmark and certain of its officers and directors, Foilmark has agreed to
indemnify such officers and directors and hold them harmless from all claims
related to his service as an officer or director, to the fullest extent
permitted by the DGCL.
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ITEM 8. EXHIBITS.
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EXHIBIT NO. DESCRIPTION
<S> <C>
5 Opinion dated April 29, 1999 of Hinckley, Allen & Snyder
23.1 Consent of Independent Accountants
23.2 Consent of Hinckley, Allen & Snyder (included in Exhibit 5)
</TABLE>
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 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 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; 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 of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or 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.
(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 Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 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 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 of 1933 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, as amended,
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 Boston, Commonwealth of Massachusetts, on April
21, 1999.
Foilmark, Inc.
By: /s/ Frank J. Olsen, Jr.
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Frank J. Olsen, Jr.
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned do hereby
constitute and appoint Frank J. Olsen, Jr. and Philip Leibel and each of them,
with full power of substitution and full power to act without the other, as his
true and lawful attorney-in-fact and agent to act in his name, place and stead
and to execute in the name and on behalf of the undersigned, individually and in
each capacity stated below, a Registration Statement on Form S-8 of Foilmark,
Inc. with respect to 279,211 shares of the Registrant's Common Stock issuable
pursuant to the HoloPak 1993 Non-Qualified Stock Option Plan, and any and all
amendments (including post-effective amendments) thereto, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may 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 indicated on April 21, 1999.
SIGNATURE TITLE
/s/ Frank J. Olsen, Jr. President and Chief Executive Officer
- ------------------------ (Principal Executive Officer)
Frank J. Olsen, Jr.
/s/ Philip Leibel Chief Financial Officer and
- ------------------------ Vice President--Finance
Philip Leibel (Principal Financial Officer and Principal
Accounting Officer)
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/s/ Edward Sullivan Vice President and Director
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Edward Sullivan
/s/ Michael Bertuch Director
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Michael Bertuch
/s/ Michael Foster Director
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Michael Foster
/s/ Thomas Schwarz Director
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Thomas Schwarz
/s/ Robert J. Simon Director
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Robert J. Simon
/s/ Harvey S. Share Director
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Harvey S. Share
/s/ Brian Kelly Director
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Brian Kelly
/s/ James L. Rooney Director
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James L. Rooney
/s/ Michael S. Mathews Director
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Michael S. Mathews
II-5
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
5.1 Opinion of Hinckley, Allen & Snyder
23.1 Consent of Hinckley, Allen & Snyder (included in Exhibit 5.1)
23.2 Consent of KPMG LLP
</TABLE>
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EXHIBIT 5.1
April 29, 1999
Board of Directors
Foilmark, Inc.
5 Malcolm Hoyt Drive
Newburyport, MA 01950
Ladies and Gentlemen:
We have acted as counsel to Foilmark, Inc., a Delaware corporation
("Foilmark"), in connection with the preparation and filing of the Registration
Statement of the Company on Form S-8 (the "Registration Statement") relating to
the registration under the Securities Act of 1933, as amended (the "Securities
Act"), of 279,211 shares of common stock, par value $.01 per share (the "Common
Stock") of the Company to be issued pursuant to the HoloPak Technologies, Inc.
1993 Non-Qualified Stock Option Plan (the "HoloPak Plan").
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement,
Foilmark's Second Amended and Restated Certificate of Incorporation, Foilmark's
Amended and Restated By-laws and such other instruments as we have deemed
relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents.
Based on and subject to the foregoing, we are of the opinion that the
shares of Common Stock which may be issued under the HoloPak Plan and registered
pursuant to the Registration Statement have been duly authorized and, when
issued in accordance with the terms of the HoloPak Plan, will be validly issued,
fully paid and nonassessable.
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We hereby consent to the use of our name and opinion in and as an
exhibit to the Registration Statement. This opinion is rendered to you in
connection with the Registration Statement, and except as consented to in the
preceding sentence, may not be used or relied upon or furnished to any other
person for any reason. In giving such consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933 or the rules or regulations thereunder.
Very truly yours,
/s/ Hinckley, Allen & Synder
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Hinckley, Allen & Synder
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Exhibit 23.2
The Board of Directors
Foilmark, Inc.:
We consent to incorporation by reference in the registration statement on
Form S-8 of Foilmark, Inc. of our report dated February 19, 1999, relating to
the consolidated balance sheets of Foilmark, Inc. and subsidiaries as of
December 31, 1998, and 1997, and the related consolidated statements of
operations, stockholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1998, and the related schedule, which
report appears in the December 31, 1998 annual report on Form 10-K of
Foilmark, Inc.
KPMG LLP
Melville, New York
April 27, 1999
