As filed with the Securities and Exchange Commission on July 2, 2002
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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HENRY SCHEIN, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-3136595
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
135 Duryea Road
Melville, New York 11747
631-843-5500
(Address of principal executive offices) (Zip code)
HENRY SCHEIN, INC. 1994 STOCK OPTION PLAN
HENRY SCHEIN, INC. 1996 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
HENRY SCHEIN, INC. 2001 NON-EMPLOYEE DIRECTOR INCENTIVE PLAN
(Full title of the plans)
Michael S. Ettinger, Esq.
Vice President, General Counsel and Secretary
Henry Schein, Inc.
135 Duryea Road
Melville, New York 11747
631-843-5500
(Name and address, and telephone number,
including area code, of agent for service)
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COPIES OF ALL COMMUNICATIONS TO:
Steve Kirshenbaum, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
212-969-3000
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum Amount of
Title of securities Amount to be offering price aggregate offering Registration
to be registered registered(1) per share(2) price(2) Fee
- ------------------------------------------------------------------------------------------------------------
Common Stock,
par value $.01 1,725,000 shares $43.55 $75,123,750 $6,911.39
============================================================================================================
(1) Represents (i) 1,600,000 additional shares of the common stock,
par value $.01 (the "Common Stock"), of Henry Schein, Inc. (the
"Company") issuable upon the exercise of stock options that have
been, or may be, granted under the Henry Schein, Inc. 1994 Stock
Option Plan, as amended (the "1994 Plan"), pursuant to amendments
to the Plan adopted at the Company's 2001 Annual Meeting of
Stockholders, (ii) 100,000 shares of Common Stock issuable upon
the exercise of options that have been, or may be, granted under
the Henry Schein, Inc. 1996 Non-Employee Director Stock Option
Plan (the "1996 Plan"), pursuant to amendments to the Plan adopted
at the Company's 2002 Annual Meeting of Stockholders and (iii)
25,000 shares of Common Stock issuable upon the exercise of stock
options that may be granted under the Henry Schein, Inc. 2001
Non-Employee Director Incentive Plan (the "2001 Plan").
(2) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(h) promulgated under the Securities Act,
based on (i) the weighted average exercise price of $41.3073 with
respect to an aggregate of 495,584 shares of Common Stock subject
to outstanding options under the 1994 Plan, (ii) the weighted
average exercise price of $29.7658 with respect to an aggregate of
55,000 shares of Common Stock subject to outstanding options under
the 1996 Plan, (iii) the weighted average exercise price of $40.82
with respect to an aggregate of 25,000 shares of Common Stock
subject to outstanding options under the 2002 Plan, and (iv) the
average of the high and low sale prices of the Common Stock as
reported on the NASDAQ National Market on June 26, 2002, with
respect to the 1,149,416 remaining shares of Common Stock being
registered, none of which are subject to outstanding options under
the 1994 Plan, the 1996 Plan or the 2001 Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Henry Schein, Inc., a Delaware corporation (the
"Company" or the "Registrant"), are incorporated herein by reference:
(1) The Company's Annual Report filed on Form 10-K for
the fiscal year ended December 29, 2001.
(2) The Company's Quarterly Report filed on Form 10-Q for
the fiscal quarter ended March 31, 2002.
(3) The description of the Company's common stock, par
value $.01 per share, contained in the Company's
Registration Statement filed on Form 8-A dated
October 27, 1995 pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act").
All documents subsequently filed by the Company 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 remaining securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing such documents. Any statement in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for the 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 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. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article TENTH of the Company's Amended and Restated Certificate of
Incorporation provides that the Company shall indemnify and hold harmless, to
the fullest extent authorized by the Delaware General Corporation Law, its
officers and directors against all expenses, liability and loss actually and
reasonably incurred in connection with any civil, criminal, administrative or
investigative action, suit or proceeding. The Amended and Restated Certificate
of Incorporation also extends indemnification to those serving at the request of
the Company as directors, officers, employees or agents of other enterprises.
In addition, Article NINTH of the Company's Amended and Restated
Certificate of Incorporation provides that no director shall be personally
liable for any breach of fiduciary duty. Article NINTH does not eliminate a
director's liability (i) for a breach of his or her duty of loyalty to the
Company or its stockholders, (ii) for acts of intentional misconduct, (iii)
under Section 174 of the Delaware General Corporation Law for unlawful
declarations of dividends or
unlawful stock purchases or redemptions, or (iv) for any transactions from which
the director derived an improper personal benefit.
Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify its directors and officers against expenses (including
attorney's fees), judgments, fines and amounts paid in settlements actually and
reasonably incurred by them in connection with any action, suit or proceeding
brought by third parties, if such directors or officers acted in good faith and
in a manner they 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 reason to believe their conduct was unlawful. In a derivative
action, i.e., one by or in the right of the corporation, indemnification may be
made only for expenses actually and reasonably incurred by directors and
officers in connection with the defense or settlement of an action or suit, and
only with respect to a matter as to which they shall have acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interest of the corporation, except that no indemnification shall be made if
such person shall have been adjudged liable to the corporation, unless and only
to the extent that the court in which the action or suit was brought shall
determine upon application that the defendant officers or directors are
reasonably entitled to indemnity for such expenses despite such adjudication of
liability.
Section 102(b)(7) of the Delaware General Corporation Law provides that
a corporation may eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision shall not eliminate or limit
the liability of a director (i) for any breach of the director's duty of loyalty
to the corporation 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, or (iv) for any
transaction from which the director derived an improper personal benefit. No
such provision shall eliminate or limit the liability of a director for any act
or omission occurring prior to the date when such provision becomes effective.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION LOCATION
4.1 Amended and Restated Articles of Incorporated by reference to Exhibit 3.1 to
Incorporation of the Company (the "Amended the Company's Registration Statement on Form
and Restated Articles") S-4 (Registration No. 333-30615)
4.2 Amendment dated November 12, 1997 to the Incorporated by reference to Exhibit 3.3 to
Amended and Restated Articles the Company's Annual Report on Form 10-K for
the fiscal year ended December 27, 1997
4.3 Amendment dated June 16, 1998 to the Incorporated by reference to Exhibit 3.3 to
Amended and Restated Articles the Company's Registration Statement on Form
S-3 (Registration No. 333-59793)
4.4 Amended and Restated Bylaws of the Company Incorporated by reference to Exhibit 3.2 to
(the "Amended and Restated Bylaws") the Company's Registration Statement on Form
S-4 (Registration No. 333-30615 )
4.5 Amendments to the Amended and Restated Incorporated by reference to Exhibit 3.5 to
Bylaws adopted July 15, 1997 the Company's Registration Statement on Form
S-4 (Registration No. 333-36081)
2
5 Opinion of Proskauer Rose LLP Filed herewith
23.1 Consent of BDO Seidman, LLP Filed herewith
23.2 Consent of Proskauer Rose LLP Included in Exhibit 5
24 Powers of Attorney Included on Page II-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:
(i) To include any prospectus required by Section 10(a)(3) of 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; and
(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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference 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 the 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.
(4) If the registrant is a foreign private issuer, to file a post-effective
amendment to the registration statement to include any financial statements
required by Rule 3-19 of this chapter at the start of any delayed offering or
throughout a continuous offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Act need not be furnished, PROVIDED, that
the registrant includes in the prospectus, by means of a post-effective
amendment, financial statements required pursuant to this paragraph (a)(4) and
other information necessary to ensure that all other information in the
prospectus is at least as current as the date of those financial statements.
Notwithstanding the foregoing, with respect to registration statements on Form
F-3,
3
a post-effective amendment need not be filed to include financial statements and
information required by Section 10(a)(3) of the Act or Rule 3-19 of this chapter
if such financial statements and information are contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the Form F-3.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, 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 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 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.
4
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 Melville, State of New York, on July 2, 2002.
HENRY SCHEIN, INC.
By: /s/ Stanley M. Bergman
------------------------------
Name: Stanley M. Bergman
Title: Chief Executive Officer
and President
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Stanley M. Bergman, Steven Paladino and Michael
S. Ettinger, and each of them, his or her true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, to act, without the
other, for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8 of Henry Schein, Inc., and to file
the same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as full to 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
agents, or either of them, or their 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 below by the following persons in the
capacities and on the dates indicated.
SIGNATURES TITLE DATE
/s/ STANLEY M. BERGMAN Chairman, Chief Executive July 2, 2002
- ------------------------------ Officer, Director and President
Stanley M. Bergman (Principal Executive Officer)
/s/ STEVEN PALADINO Director, Executive Vice President July 2, 2002
- ------------------------------ and Chief Financial Officer
Steven Paladino (Principal Financial Officer
and Principal Accounting Officer)
/s/ JAMES P. BRESLAWSKI Executive Vice President, President July 2, 2002
- ------------------------------ US Dental and Director
James P. Breslawski
5
SIGNATURES TITLE DATE
/s/ GERALD A. BENJAMIN Senior Vice President, Chief July 2, 2002
- -------------------------------- Administrative Officer and Director
Gerald A. Benjamin
/s/ LEONARD A. DAVID Vice President - Human Resources, July 2, 2002
- -------------------------------- Special Counsel and Director
Leonard A. David
/s/ MARK E. MLOTEK Senior Vice President - Corporate July 2, 2002
- -------------------------------- Business Development Group and Director
Mark E. Mlotek
Director
- -------------------------------- July 2, 2002
Barry Alperin
Director
- -------------------------------- July 2, 2002
Pamela Joseph
Director
- -------------------------------- July 2, 2002
Donald J. Kabat
/s/ MARVIN H. SCHEIN Director July 2, 2002
- --------------------------------
Marvin H. Schein
Director
- -------------------------------- July 2, 2002
Irving Shafran
Director
- -------------------------------- July 2, 2002
Philip A. Laskawy
Director
- -------------------------------- July 2, 2002
Norman S. Matthews
6
EXHIBIT 5
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
July 1, 2002
Henry Schein, Inc.
135 Duryea Road
Melville, New York 11747
Ladies and Gentlemen:
We are acting as counsel to Henry Schein, Inc., a Delaware corporation
(the "Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement") filed by the Company under the Securities Act of 1933
with respect to an additional 1,725,000 shares (the "Shares") of the common
stock, par value $.01, of the Company issuable under the Henry Schein, Inc. 1994
Stock Option Plan, as amended, pursuant to amendments adopted by the Company's
stockholders at the Company's 2001 Annual Meeting of Stockholders, the Henry
Schein, Inc. 1996 Non-Employee Director Stock Option Plan as amended,
pursuant to amendments adopted by the Company's stockholders at the Company's
2002 Annual Meeting of Stockholders, or the Henry Schein, Inc. 2001
Non-Employee Director Incentive Plan (collectively, the "Plans").
We have examined and relied upon originals or copies, certified or
otherwise authenticated to our satisfaction, of all such corporate records,
documents, agreements and instruments relating to the Company, and certificates
of public officials and of representatives of the Company, and have made such
investigations of law, and have discussed with representatives of the Company
and such other persons such questions of fact, as we have deemed proper or
necessary as a basis for rendering this opinion.
Based upon and subject to the foregoing, we are of the opinion that the
Shares will be, when issued in accordance with the respective provisions of the
Plans and the options granted thereunder (including payment of the option
exercise prices provided for therein), legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ PROSKAUER ROSE LLP
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Henry Schein, Inc.
Melville, New York
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of Henry Schein, Inc. (the
"Company") on Form S-8 of our reports dated March 1, 2002 relating to the
consolidated financial statements and schedule appearing in the Company's Annual
Report on Form 10-K for the year ended December 29, 2001.
BDO SEIDMAN, LLP
New York, New York
July 1, 2002
