As filed with the Securities and Exchange Commission on September 7, 2004
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CENVEO, INC.
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(Exact Name of Registrant as Specified in its Charter)
Colorado 84-1250533
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(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification Number)
8310 South Valley Highway, #400, Englewood, Colorado 80112
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(Address of Principal Executive Offices)
CENVEO, INC. 2001 LONG-TERM EQUITY INCENTIVE PLAN
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(Full Title of the Plan)
Mark L. Zoeller COPIES TO:
Cenveo, Inc. Karen L. Witt, Esq.
8310 South Valley Highway, #400 Rothgerber Johnson & Lyons LLP
Englewood, Colorado 80112 1200 17th Street, Suite 3000
(Name and Address of Agent for Service) Denver, Colorado 80202
(303) 790-8023 (303) 623-9000
(Telephone Number of Agent for Service)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share Price Registration Fee
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Common Stock 3,025,000 $3.20(1) $9,680,000(1) $1,226.46(1)
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(1) Pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as
amended, the proposed maximum offering price per share and the proposed
maximum aggregate offering price are estimated solely for purposes of
calculating the registration fee and are based upon the average of the high
and low prices of the Common Stock as quoted on the New York Stock Exchange
on September 3, 2004.
TABLE OF CONTENTS
Page
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PART II -- INFORMATION REQUIRED IN THE REGISTRATION STATEMENT.............II-1
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE......................II-1
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.......................II-2
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS....................II-2
ITEM 8. EXHIBITS.....................................................II-3
ITEM 9. UNDERTAKINGS.................................................II-3
SIGNATURES................................................................II-5
EXHIBIT INDEX.............................................................II-7
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, all of which were previously filed by
Cenveo, Inc., formerly known as Mail-Well, Inc. (the "Company") (File No.
1-12551), with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act ("Exchange Act"), are hereby
incorporated by reference:
(1) the Form S-8 Registration Statement relating to the Company's
2001 Long-Term Equity Incentive Plan, as filed with the Commission on
December 4, 2001 as file number 333-74490;
(2) the Company's Annual Report on Form 10-K for the year ended
December 31, 2003;
(3) the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2004;
(4) the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2004;
(5) the Company's Current Reports on Form 8-K, dated January 21,
2004, February 9, 2004, February 9, 2004, February 17, 2004, May 3, 2004,
May 6, 2004, May 17, 2004, August 3, 2004, August 4, 2004 and August 24,
2004;
(6) the Company's Proxy Statement on Schedule 14A relating to its
2004 annual meeting of shareholders, as filed with the Commission on March
16, 2004;
(7) all other reports filed by the Company pursuant to Section
13(a) or 13(d) of the Exchange Act since the end of the fiscal year covered
by the Annual Report referred to in (2) above; and
(8) the description of the common stock of the Company, par value
$0.01 (the "Company Stock"), contained in the Company's Registration
Statement on Form 8-A, File No. 001-12551, filed by the Company 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 Company with the Commission
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 hereby have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated in this Registration
Statement by reference and to be a part hereof from the date of filing such
documents.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Company Stock registered pursuant to this Form
S-8 Registration Statement will be passed upon for the Company by the law
firm of Rothgerber Johnson & Lyons LLP, One Tabor Center, Suite 3000, 1200
17th Street, Denver, Colorado 80202, which has served as special counsel to
the Company in the preparation of the Form S-8 Registration Statement.
Herbert H. Davis, III, Senior Vice President-Corporate Development and Chief
Legal Officer of the Company is of counsel to Rothgerber Johnson & Lyons
LLP. Mr. Davis maintains an ownership position in the Company Stock as
described in the Company's 2004 Proxy Statement referred to in Item 3 above.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 7-109-101 et seq. of the Colorado Business Corporations Act
empowers a Colorado corporation to indemnify its directors, officers,
employees and agents under certain circumstances, as well as providing for
elimination of personal liability of directors and officers of a Colorado
corporation for monetary damages.
A corporation must indemnify a person who was wholly successful, on
the merits or otherwise, in the defense of any proceeding to which the
person was a party because the person is or was a director, officer,
employee, fiduciary or agent, against reasonable expenses incurred by him or
her in connection with the proceeding.
A corporation may indemnify a person made a party to a proceeding
because the person is or was a director, officer, employee, fiduciary or
agent if the person conducted himself or herself in good faith and the
person reasonably believed that his or her conduct was in or not opposed to
the best interests of the corporation (or in the case of a criminal
proceeding, had a reasonable belief that his or her conduct was not
unlawful), except that no indemnification is allowed in connection with a
proceeding by or in the right of the corporation in which the person seeking
indemnification was adjudged to be liable to the corporation or in
connection with any other proceeding in which the person was adjudged liable
on the basis that he or she derived an improper personal benefit.
A corporation may purchase and maintain insurance on behalf of a
person who is or was a director, officer, employee, fiduciary or agent of
the corporation, or who, while a director, officer, employee, fiduciary or
agent of another domestic or foreign corporation or other person or an
employee benefit plan, against liability asserted against or incurred by the
person in that capacity or arising from his or her status as a director,
officer, employee, fiduciary, or agent, whether or not the corporation would
have power to indemnify the person against the same liability under Section
7-109-101 et seq.
Article V of the Articles of Incorporation of the Company reads as
follows:
"The Corporation shall indemnify, to the fullest extent permitted
by applicable law in effect from time to time, any person, and the estate
and personal representative of any such person, against all liability and
expense (including attorneys' fees) incurred by reason of the fact that he
or she is or was a director or officer of the Corporation or, while serving
as a director or officer of the Corporation, he or she is or was serving at
the request of the Corporation as a
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director, officer, partner, trustee, employee, fiduciary, or agent of, or in
any similar managerial or fiduciary position of, another domestic or foreign
Corporation or other individual or entity or of an employee benefit plan.
The Corporation shall also indemnify any person who is serving or has served
the Corporation as director, officer, employee, fiduciary, or agent, and
that person's estate and personal representative, to the extent and in the
manner provided in any bylaw, resolution of the shareholders or directors,
contract, or otherwise, so long as such provision is legally permissible."
Article VI of the Articles of Incorporation of the Company reads as
follows:
"There shall be no personal liability of a director to the
Corporation or to its shareholders for monetary damages for breach of
fiduciary duty as a director, except that said personal liability shall not
be eliminated to the Corporation or to the shareholders for monetary damages
arising due to any breach of the director's duty of loyalty to the
Corporation or to the shareholders, acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, acts
specified in section 7-108-403, C.R.S., or any transaction from which a
director derived an improper personal benefit. Notwithstanding any other
provisions herein, personal liability of a director shall be eliminated to
the greatest extent possible as is now, or in the future, provided for by
law. Any repeal or modification of the foregoing sentence shall not
adversely affect any right or protection of a director of the Corporation
existing hereunder with respect to any act or omission occurring prior to
such repeal or modification."
In addition to the foregoing statutes and provisions of the
Company's Articles of Incorporation, the Company has entered into indemnity
agreements with each of its executive officers which provide that the
Company will indemnify such officers in lawsuits brought against any
executive in his or her capacity as an officer of the Company.
ITEM 8. EXHIBITS
The following exhibits are attached to this registration statement:
Exhibit 4.1 Cenveo, Inc. 2001 Long-Term Equity Incentive Plan,
as amended
Exhibit 4.2 Form of Incentive Stock Option Agreement
Exhibit 4.3 Form of Non-qualified Stock Option Agreement for
Directors
Exhibit 4.4 Form of Restricted Stock Award Agreement
Exhibit 4.5 Form of Non-qualified Stock Option Agreement for
Employees
Exhibit 5 Opinion of Rothgerber Johnson & Lyons LLP
Exhibit 23.1 Consent of Ernst & Young LLP
Exhibit 23.2 Consent of Rothgerber Johnson & Lyons LLP (included
in Exhibit 5 hereto)
Exhibit 24 Power of Attorney (included on signature page hereto)
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
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(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) or 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 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(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.
(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 Company'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.
(h) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Company pursuant
to the foregoing provisions, or otherwise, the Company 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
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liabilities (other than the payment by the Company of
expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 of 1933, the
Company 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 Englewood and the State of
Colorado, on this 7th day of September 2004.
CENVEO, INC.
By: /s/ Paul V. Reilly
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Paul V. Reilly, Chief Executive Officer
(Principal Executive Officer)
By: /s/ Michel P. Salbaing
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Michel P. Salbaing, Senior Vice President
Finance, Chief Financial Officer
(Principal Financial Officer and Principal
Accounting Officer)
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Paul V. Reilly and Mark L. Zoeller and each of them, as attorneys-in-fact,
each with the power of substitution, for him in any and all capacities, to
sign any amendments to this Registration Statement and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorney-in-fact, and
each of them, 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 attorneys-in-fact, or any one of
them, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
SIGNATURE TITLE DATE
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/s/ Thomas E. Costello Director August 30, 2004
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Thomas E. Costello
/s/ Paul F. Kocourek Director September 2, 2004
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Paul F. Kocourek
/s/ Martin J. Maloney Director August 30, 2004
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Martin J. Maloney
/s/ David M. Olivier Director September 6, 2004
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David M. Olivier
/s/ Jerome W. Pickholz Director August 30, 2004
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Jerome W. Pickholz
/s/ Paul V. Reilly Director September 1, 2004
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Paul V. Reilly
/s/ Alister W. Reynolds Director August 31, 2004
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Alister W. Reynolds
/s/ Susan O. Rheney Director September 2, 2004
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Susan O. Rheney
/s/ Wellington E. Webb Director August 30, 2004
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Wellington E. Webb
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4.1 Cenveo, Inc. 2001 Equity Incentive Plan, as amended
4.2 Form of Incentive Stock Option Agreement
4.3 Form of Non-qualified Stock Option Agreement for Directors
4.4 Form of Restricted Stock Award Agreement
4.5 Form of Non-qualified Stock Option Agreement for Employees
5 Opinion of Rothgerber Johnson & Lyons LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Rothgerber Johnson & Lyons LLP
(included in Exhibit 5 hereto)
24 Power of Attorney (included on signature page hereto)
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