-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Hv9Rk6GwvscFeT+bpdD1oLycNLELGe+o+OZIiCy77YXUVZ0tCpo2Rt6Wuw3FhnVp oWt42NpV+1B/YOSZYTouhA== 0001013816-05-000059.txt : 20050207 0001013816-05-000059.hdr.sgml : 20050207 20050207170302 ACCESSION NUMBER: 0001013816-05-000059 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050207 DATE AS OF CHANGE: 20050207 EFFECTIVENESS DATE: 20050207 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EMTEC INC/NJ CENTRAL INDEX KEY: 0000005117 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 870273300 STATE OF INCORPORATION: UT FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-122609 FILM NUMBER: 05581197 BUSINESS ADDRESS: STREET 1: 817 EAST LAKE GATE DRIVE CITY: MT LAUREL STATE: UT ZIP: 08054 BUSINESS PHONE: 8013633283 MAIL ADDRESS: STREET 1: 817 EAST GATYE DRIVE CITY: MT LAUREL STATE: NJ ZIP: 08054 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN GEOLOGICAL ENTERPRISES INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: NUCLEAR PROCESSING CORP DATE OF NAME CHANGE: 19820318 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN GEOTHERMAL ENERGY INC DATE OF NAME CHANGE: 19681212 S-8 1 form_s8-20705.txt FORM S-8 As filed with the Securities and Exchange Commission on February 7, 2005 Registration No. 333- ================================================================================ 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) ---------------- 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 - -------------------------------- -------------------- ----------------------- ------------------------ ---------------------- - -------------------------------- -------------------- ----------------------- ------------------------ ---------------------- Common Stock, par value $0.01 per share........... 152,406 shares (2) $1.03 $ 156,978.18 $ 18.48 - -------------------------------- -------------------- ----------------------- ------------------------ ---------------------- Common Stock, par value $0.01 per share........... 39,712 shares (2) $1.00 $ 39,712.00 $ 4.67 - -------------------------------- -------------------- ----------------------- ------------------------ ---------------------- 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 - -------------------------------- -------------------- ----------------------- ------------------------ ---------------------- Common Stock, par value $0.01 per share........... 30,000 shares (2) $0.44 $ 13,200.00 $ 1.55 - -------------------------------- -------------------- ----------------------- ------------------------ ---------------------- Common Stock, par value $0.01 per share........... 60,000 shares (2) $0.86 $ 51,600.00 $ 6.07 - -------------------------------- -------------------- ----------------------- ------------------------ ---------------------- Common Stock, par value $0.01 per share........... 551,882 shares (3) $2.735 $1,509,397.27 $177.66 - ------------------------------------------------------------------------------------------------------ ---------------------- Total..................................................................................................... $215.01 - ------------------------------------------------------------------------------------------------------ ----------------------
(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 - -------------- -------------------------------------------------------------- 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) - ------------- * 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 ------------------------------------ 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 - -------------------------------------- John P. Howlett Vice President-Finance (Principal Financial Officer and Principal /s/ Sam Bhatt Accounting Officer) February 4, 2005 - -------------------------------------- Sam Bhatt President, Chief Operating Officer and Director February 4, 2005 /s/ Ronald A. Seitz - -------------------------------------- Ronald A Seitz February 4, 2005 /a/ Frank Jerd Director - -------------------------------------- Frank Jerd February 4, 2005 /s/ George F. Raymond Director - -------------------------------------- George F. Raymond
INDEX TO EXHIBITS EXHIBIT NUMBER DESCRIPTION OF EXHIBIT - ----------- ----------------------------------------------------------------- 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) - -------------- * The exhibits have previously been filed with the Securities and Exchange Commission as part of the filing indicated and are incorporated herein by reference. EX-4 2 form_s8ex51-20705.txt EXH. 5.1 SONNENSCHEIN OPINION Exhibit 5.1 [Sonnenschein Nath & Rosenthal LLP Letterhead] February 7, 2005 Emtec, Inc. 572 Whitehead Road Trenton, New Jersey 08619 Re: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: In our capacity as counsel to Emtec, Inc., a Delaware corporation (the "Company"), we have been asked to render this opinion in connection with a registration statement on Form S-8 (the "Registration Statement") being filed contemporaneously herewith by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), covering 1,000,000 shares (the "Option Shares") of the Company's common stock, par value $0.10 per share. The Option Shares are issuable upon the exercise of options which have been granted or which may be granted subsequent hereto pursuant to the Company's 1996 Stock Option Plan (the "Option Plan"). In connection with rendering this opinion, we have examined and are familiar with the Company's Certificate of Incorporation, as amended, the Company's Amended and Restated By-Laws, the Option Plan, the Registration Statement, corporate proceedings of the Company relating to the Option Plan and such other instruments and documents as we have deemed relevant under the circumstances. In making the aforesaid examinations, we have assumed the genuineness of all signatures and the conformity to original documents of all copies furnished to us as original or photostatic copies. We have also assumed that the corporate records furnished to us by the Company include all corporate proceedings taken by the Company to date. Based upon the foregoing and subject to the assumptions and qualifications set forth herein, we are of the opinion that the Option Shares have been duly and validly authorized and, when issued and paid for in accordance with the terms of the Option Plan, will be duly and validly issued and fully paid and non-assessable. The foregoing opinion is limited to the laws of the United States of America and Delaware corporate law (which includes the Delaware General Corporation Law and applicable provisions of the Delaware constitution, as well as reported judicial decisions interpreting same) and does not purport to express any opinion on the laws of any other jurisdiction. We hereby consent to the use of our opinion as an exhibit to the Registration Statement. In giving such consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC thereunder. Very truly yours, SONNENSCHEIN NATH & ROSENTHAL LLP By: /s/ Ira Roxland ------------------------------ A Member of the Firm EX-23 3 form_s8ex231-20705.txt EXH. 23.1 CONS. OF ACCOUNTANT Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated June 4, 2004, which is included in the annual report on Form 10-K of Emtec, Inc. for the year ended March 31, 2004. /s/ Baratz & Associates, P.A. Baratz & Associates, P.A. Marlton, New Jersey February 4, 2005 -----END PRIVACY-ENHANCED MESSAGE-----