AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 6, 2004
Registration No.333-
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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
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NATCO GROUP INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-2906892
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2950 NORTH LOOP WEST, 7TH FLOOR
HOUSTON, TEXAS 77092
(Address of principal executive offices, including zip code)
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2004 STOCK INCENTIVE PLAN
INDIVIDUAL STOCK OPTION ARRANGEMENTS
(Full title of the plan)
KATHERINE P. ELLIS
SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
2950 NORTH LOOP WEST, 7TH FLOOR
HOUSTON, TEXAS 77092
(Name and address of agent for service)
(713) 683-9292
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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TITLE OF MAXIMUM PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED (1) PER SHARE OFFERING PRICE (2) REGISTRATION FEE
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Individual Stock Option 304,915 Shares $5.03 $ 1,533,722.45 $ 194.32
Arrangements - Common Stock,
$0.01 par value.............
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2004 Stock Incentive Plan -
Common Stock, $0.01 par
value....................... 600,000 Shares $7.47(2) $4,482,000.00 $ 567.87
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Total.......................... 904,915 Shares $6,015,722.45 $ 762.19
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(1) Pursuant to Rule 416(c) of the Securities Act of 1933, as amended (the
"Securities Act"), this registration statement shall also cover any
additional shares of Common Stock which become issuable under the
Individual Stock Option Arrangements or the 2004 Stock Incentive Plan by
reason of any stock dividend, stock split, recapitalization or any other
similar transaction effected without the receipt of consideration which
results in an increase in the number of the Registrant's outstanding shares
of Common Stock.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee. Specifically,
the offering price per share is based on the average of the high and low
prices of NATCO Group Inc. Common Stock reported on the New York Stock
Exchange as of June 29, 2004.
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PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be
sent or given to participants as specified in Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act"). Such documents need
not be filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. These documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Registration Statement, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and Exchange
Commission by NATCO Group Inc. are incorporated by reference and made a part of
this registration statement.
o Annual Report on Form 10-K for the year ended December 31, 2003.
o Quarterly Report on Form 10-Q for the quarter ended March 31, 2004.
o Current Reports on Form 8-K dated February 25, March 17 and May 5, 2004.
o The description of the common stock contained in the Registration
Statement on Form 8-A, File No. 1-15603, filed with the SEC on January
5, 2000 and any subsequent amendment filed for the purpose of updating
the description.
All documents we have filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") subsequent to the
effective date of this registration statement, prior to the filing of a
post-effective amendment which indicates that all securities offered by this
prospectus have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference of this registration
statement and to be a part of this registration statement from the date of
filing of such documents. Any statement contained herein or in any document
incorporated or deemed to be incorporated by reference shall be deemed to be
modified or superseded for purposes of this registration statement to the extent
that a statement contained in any other subsequently filed document that also is
or is deemed to be incorporated by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed to
constitute a part of this registration statement, except as so modified or
superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Katherine P. Ellis, NATCO's General Counsel, will pass upon the validity of the
issuance of the common stock offered by this registration statement for NATCO
Group Inc. As of June 30, 2004, Ms. Ellis had the right to acquire 40,000 shares
of NATCO's common stock through the exercise of options, 10,000 of which are
vested currently. Ms. Ellis is eligible to receive grants and awards under the
2004 Stock Incentive Plan, if and as authorized by the Governance, Nominating
and Compensation Committee of NATCO's Board of Directors.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our Restated Certificate of Incorporation, as amended, provides that, to the
fullest extent permitted by the Delaware General Corporation Law as the same
exists or may be hereafter amended (the "DGCL"), no director of NATCO Group
shall be personally liable to us or our stockholders for monetary damages for
any breach of fiduciary duty by such a director as a director. Article VI of our
Amended and Restated Bylaws, as amended, also provides that we may maintain
insurance, at our own expense, to protect us and any director, officer, employee
or agent of us or of another entity against any expense, liability, or loss,
regardless of whether we would have power to indemnify such person against such
expense, liability or loss under the DGCL.
Section 145 of the DGCL authorizes, inter alia, a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation), by reason of the fact that the person is or was an
officer or director of such corporation, or is or was serving at the request of
that corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and
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reasonably incurred by such person in connection with such action, suit or
proceeding, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. A Delaware corporation may indemnify past or present
officers and directors of that corporation or of another corporation or other
enterprise at the former corporation's request, in an action by or in the right
of the corporation to procure a judgment in its favor under the same conditions,
except that no indemnification is permitted without judicial approval if that
person is adjudged to be liable to the corporation. Where an officer or director
is successful on the merits or otherwise in defense of any action referred to
above, or in defense of any action referred to above, or in defense of any
claim, issue or matter therein, the corporation must indemnify him against the
expenses (including attorneys' fees) which he actually and reasonably incurred
in connection therewith. Section 145 further provides that any indemnification
shall be made by the corporation only as authorized in each specific case upon a
determination by (i) the stockholders, (ii) the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, (iii) a committee of such directors designated by majority
vote of such directors, even though less than a quorum, or (iv) independent
counsel if a quorum of disinterested directors so directs. Section 145 provides
that indemnification pursuant to its provision 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.
Section 145 of the DGCL also empowers us to purchase and maintain insurance on
behalf of any person who is or was an officer or director of NATCO Group against
liability asserted against or incurred by him in any such capacity, whether or
not we would have the power to indemnify such officer or director against such
liability under the provisions of Section 145.
In addition, we have entered into indemnification agreements with our directors
and certain of our officers. These indemnification agreements, among other
things, indemnify our directors and such officers for certain expenses
(including attorneys' fees), judgments, fines, and settlement payments incurred
by such person in any action, including in some circumstances an action by or in
the right of us, in connection with the good faith performance of their duties
as a director or such officer. The indemnification agreements also provide for
the advance payment by us of defense expenses incurred by the director or such
officer; however, the affected director or officer must undertake to repay such
amounts if it is ultimately determined that such director or officer is not
entitled to be indemnified.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to another
filing of NATCO Group Inc. with the Securities and Exchange Commission, each of
the following exhibits is filed with this registration statement:
4.1 Restated Certificate of Incorporation of NATCO Group Inc., as
amended (filed as Exhibit 3.1 to our registration statement on
Form S-1 (No. 333-48851) and incorporated in this registration
statement by reference).
4.2 Composite Amended and Restated Bylaws of NATCO Group Inc., as
amended (filed as Exhibit 3.3 to our Quarterly Report on Form
10-Q for the period ended March 31, 2003 and incorporated in
this registration statement by reference).
4.3 Certificate of Designation of Series A Junior Participating
Preferred Stock (filed as Exhibit 3.2 to our registration
statement on Form S-1 (No. 333-48851) and incorporated in this
registration statement by reference).
4.4 Specimen Common Stock certificate (filed as Exhibit 4.1 to our
registration statement on Form S-1 (No. 333-48851) and
incorporated in this registration statement by reference).
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4.5 Certificate of Designations of Series B Convertible Preferred
Stock (filed as Exhibit 3.1 to our Current Report on Form 8-K
filed on March 27, 2003 and incorporated in this registration
statement by reference).
4.6 NATCO Group Inc. 2004 Stock Incentive Plan.
4.7 Form of Individual Stock Option Arrangement entered into between
NATCO Group Inc. and certain employees Stock (filed as Exhibit
10.4 to our registration statement on Form S-8 (No. 333-32020)
and incorporated in this registration statement by reference).
4.8 Form of Stock Option Agreement entered into between NATCO Group
Inc. and Nathaniel A. Gregory with respect to certain stock
option grants (filed as Exhibit 10.13 to our registration
statement on Form S-1 (No. 333-48851) and incorporated in this
registration statement by reference).
5.1 Opinion of Katherine P. Ellis, Senior Vice President, Secretary
and General Counsel, NATCO Group Inc.
23.1 Consent of Independent Registered Public Accounting Firm, KPMG
LLP.
23.2 Consent of Katherine P. Ellis, Senior Vice President, Secretary
and General Counsel, NATCO Group Inc. (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page to this
registration statement).
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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(b) 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. 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 a
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(c) 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 paragraphs (1)(a) and (1)(b) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed 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 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.
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b. INCORPORATION OF SUBSEQUENT FILINGS BY REFERENCE. The undersigned
registrant hereby undertakes that, for the 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 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 this 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. FORM S-8 FILING. 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 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 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
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 Houston, State of Texas, on the 6th day of July,
2004.
NATCO Group Inc.
By: /s/ Nathaniel A. Gregory
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Nathaniel A. Gregory
Chief Executive Officer and
Chairman of the Board
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Nathaniel A. Gregory, Richard W. FitzGerald and
Katherine P. Ellis as his or her true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and anything
appropriate or necessary to be done, as fully and for all intents and purposes
as he or she might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agent or their substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in the
capacities indicated on the 6th day of July, 2004.
SIGNATURE TITLE
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/s/ Nathaniel A. Gregory Chairman of the Board and Chief
------------------------------- Executive Officer (Principal
Nathaniel A. Gregory Executive Officer)
/s/ Richard W. FitzGerald Senior Vice President and
------------------------------- Chief Financial Officer
Richard W. FitzGerald (Principal Financial Officer)
/s/ Ryan S. Liles Vice President and Controller
------------------------------- (Principal Accounting Officer)
Ryan S. Liles
/s/ Keith K. Allan Director
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Keith K. Allan
/s/ Thomas R. Bates, Jr. Director
-------------------------------
Thomas R. Bates, Jr.
/s/ John U. Clarke Director
-------------------------------
John U. Clarke
/s/ George K. Hickox, Jr. Director
-------------------------------
George K. Hickox, Jr.
/s/ Patrick M. McCarthy Director and President
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Patrick M. McCarthy
/s/ Herbert S. Winokur, Jr. Director
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Herbert S. Winokur, Jr.
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INDEX TO EXHIBITS
4.1 Restated Certificate of Incorporation of NATCO Group Inc., as
amended (filed as Exhibit 3.1 to our registration statement on Form
S-1 (No. 333-48851) and incorporated in this registration statement
by reference).
4.2 Composite Amended and Restated Bylaws of NATCO Group Inc., as
amended (filed as Exhibit 3.3 to our Quarterly Report on Form 10-Q
for the period ended March 31, 2003 and incorporated in this
registration statement by reference).
4.3 Certificate of Designation of Series A Junior Participating
Preferred Stock (filed as Exhibit 3.2 to our registration statement
on Form S-1 (No. 333-48851) and incorporated in this registration
statement by reference).
4.4 Specimen Common Stock certificate (filed as Exhibit 4.1 to our
registration statement on Form S-1 (No. 333-48851) and incorporated
in this registration statement by reference).
4.5 Certificate of Designations of Series B Convertible Preferred Stock
(filed as Exhibit 3.1 to our Current Report on Form 8-K filed on
March 27, 2003 and incorporated in this registration statement by
reference).
4.6 NATCO Group Inc. 2004 Stock Incentive Plan.
4.7 Form of Individual Stock Option Arrangement entered into between
NATCO Group Inc. and certain employees Stock (filed as Exhibit 10.4
to our registration statement on Form S-8 (No. 333-32020) and
incorporated in this registration statement by reference).
4.8 Form of Stock Option Agreement entered into between NATCO Group Inc.
and Nathaniel A. Gregory with respect to certain stock option grants
(filed as Exhibit 10.13 to our registration statement on Form S-1
(No. 333-48851) and incorporated in this registration statement by
reference).
5.1 Opinion of Katherine P. Ellis, Senior Vice President, Secretary and
General Counsel, NATCO Group Inc.
23.1 Consent of Independent Registered Public Accounting Firm, KPMG LLP.
23.2 Consent of Katherine P. Ellis, Senior Vice President, Secretary and
General Counsel, NATCO Group Inc. (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page to this
registration statement).