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Registration Statement No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------------
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 11-3101034
(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)
FOILMARK, INC. 1997 NON-EMPLOYEE DIRECTORS STOCK 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>
- ------------------------- ---------------------- ------------------- ---------------------- -------------------------
<S> <C> <C> <C> <C>
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)
- ------------------------- ---------------------- ------------------- ---------------------- -------------------------
- ------------------------- ---------------------- ------------------- ---------------------- -------------------------
Common
Stock, par
value $.01 per
share.... 150,000 $3.125 $468,750 $130.31
- ------------------------- ---------------------- ------------------- ---------------------- -------------------------
</TABLE>
(1) Based on 150,000 shares of Common Stock issuable under the Foilmark, Inc.
1997 Non-Employee Directors Stock Plan (the "Plan").
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on the average of the exercise price of the
high and low prices reported on the Nasdaq National Market System as of November
1, 1999.
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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 June 30, 1999 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.
EXHIBIT NO. DESCRIPTION
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3.1 Second Amended and Restated
Certificate of Incorporation
(incorporated by reference to Exhibit
3.1 to the Registrant's Current Report
on Form 8-K filed with the Commission
on May 5, 1999, the text of such
amendment being set forth as Exhibit
3.3 to the Registrant's Quarterly
Report on Form 10-Q filed with the
Commission on May 14, 1999 and
incorporated herein by reference).
3.2 Restated Bylaws, as amended
(incorporated by reference to an
Exhibit to the Registrant's Quarterly
Report on Form 10-Q, as amended by
written consent of the Board of
Directors, the text of such amended
Restated Bylaws being set forth as
Exhibit 3.2 to the Company's Current
Report on Form 8-K filed with the
Commission on May 5, 1999 and
incorporated herein by reference).
5 Opinion of Hinckley, Allen & Snyder
LLP
23.1 Consent of KPMG LLP, Independent
Accountants
23.2 Consent of Hinckley, Allen & Snyder
LLP (included in Exhibit 5)
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
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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 November 4,
1999.
Foilmark, Inc.
By: /s/ Frank J. Olsen, Jr.
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Frank J. Olsen, Jr.
President and Chief Executive Officer
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 November 4, 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/ Robert J. Simon Chairman of the Board of Directors
- --------------------------
Robert J. Simon
/s/ Edward Sullivan Director
- --------------------------
Edward Sullivan
/s/ Michael Bertuch Director
- --------------------------
Michael Bertuch
/s/ Michael Foster Director
- --------------------------
Michael Foster
/s/ Thomas Schwarz Director
- --------------------------
Thomas Schwarz
/s/ Harvey S. Share Director
- --------------------------
Harvey S. Share
/s/ Brian Kelly Director
- --------------------------
Brian Kelly
/s/ James L. Rooney Director
- --------------------------
James L. Rooney
/s/ Michael S. Mathews Director
- --------------------------
Michael S. Mathews
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- -------------
3.1 Second Amended and Restated Certificate of
Incorporation (incorporated by reference to Exhibit
3.1 to the Registrant's Current Report on Form 8-K
filed with the Commission on May 5, 1999, the text of
such amendment being set forth as Exhibit 3.3 to the
Registrant's Quarterly Report on Form 10-Q filed with
the Commission on May 14, 1999 and incorporated herein
by reference).
3.2 Restated Bylaws, as amended (incorporated by reference
to an Exhibit to the Registrant's Quarterly Report on
Form 10-Q, as amended by written consent of the Board
of Directors, the text of such amended Restated Bylaws
being set forth as Exhibit 3.2 to the Company's
Current Report on Form 8-K filed with the Commission
on May 5, 1999 and incorporated herein by reference).
5.1 Opinion of Hinckley, Allen & Snyder LLP
23.1 Consent of KPMG LLP, Independent Accountants
23.2 Consent of Hinckley, Allen & Snyder LLP (included in
Exhibit 5)
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EXHIBIT 5
November 4, 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 Foilmark on Form S-8 (the "Registration Statement") relating to the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of 150,000 shares of common stock, par value $.01 per share (the "Common
Stock") of Foilmark, Inc. to be issued pursuant to the Foilmark, Inc. 1997
Non-Employee Directors Stock Plan (the "Plan").
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement,
Foilmark's Restated Certificate of Incorporation, as amended, Foilmark's
Restated By-laws, as amended, 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.
We have made such examination of the Delaware General Corporation Law
(the "DGCL") and federal law as we have deemed relevant for purposes of this
opinion, but we have not made any review of the laws of any other jurisdiction.
Accordingly, we express no opinion as to the laws of any state or jurisdiction
other than the laws of the United States and the DGCL.
Based on and subject to the foregoing, we are of the opinion that the
shares of Common Stock which may be issued under the Plan and registered
pursuant to the Registration Statement have been duly authorized and, when
issued in accordance with the terms of the Plan, will be validly issued, fully
paid and nonassessable.
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 & Snyder LLP
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EXHIBIT 23.1
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 August 27, 1999, relating to
the consolidated balance sheets of Foilmark, Inc. and subsidiaries as of
June 30, 1999, and December 31, 1998, and the related consolidated statements
of earnings, retained earnings, and cash flows for the six months ended
June 30, 1999 and the years ended December 31, 1998 and 1997 and the related
schedule, which report appears in the June 30, 1999, annual report on
Form 10-K of Foilmark, Inc.
/s/ KPMG LLP
Melville, New York
November 1, 1999
