As filed with the Securities and Exchange Commission on June 1, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NATIONAL DENTEX CORPORATION
(Exact name of registrant as specified in its charter)
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Massachusetts
(State or other jurisdiction of
incorporation of organization)
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04-2762050
(I.R.S. Employer Identification No.)
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2 Vision Drive, Natick, Massachusetts 01760
(Address of Principal Executive Offices)
National Dentex Corporation
1992 Employees Stock Purchase Plan
(Full title of the plan)
Richard F. Becker, Jr.
Executive Vice President & Treasurer
National Dentex Corporation.
2 Vision Drive, Natick, Massachusetts 01760
(Name and address of agent for service)
(508) 907-7800
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Title of securities
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Proposed maximum
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Proposed maximum
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to be
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Amount to be
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offering price
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aggregate
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Amount of
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registered
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registered
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per share
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offering price
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registration fee
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Common Stock,
par value $.01 per share
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250,000 shares (1)
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$
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6.76
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(2)
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$
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1,688,750
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(2)
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$
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94.23
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(3)
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(1)
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This Registration Statement covers shares of Common Stock of National Dentex Corporation
(Common Stock) which may be offered or sold pursuant to the Third Amendment to the National
Dentex Corporation 1992 Employees' Stock Purchase Plan. This Registration Statement shall
also cover any additional shares of Common Stock that may be issued upon stock splits, stock
dividends or similar transactions in accordance with Rule 416(c) under the Securities Act of
1933.
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(2)
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Estimated pursuant to Rules 457(h) and 457(c) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee, based on the average of the high and low sale
prices of shares of Common Stock on May 27, 2009, as reported on the NASDAQ Global Market.
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(3)
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Calculated pursuant to Section 6(b) of the Securities Act of 1933 as follows: proposed
maximum aggregate offering price multiplied by .0000558.
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TABLE OF CONTENTS
INTRODUCTION
This registration statement on Form S-8 (the
Registration Statement
) is being filed to
register an additional 250,000 shares of our common stock issuable pursuant to the provisions of
our 1992 Employees Stock Purchase Plan, as recently amended (the
Plan
). The earlier registration
statements that we filed with the Securities and Exchange Commission (
SEC
) on June 9, 2000 (File
No. 333-38998) and on November 16, 2007 (File No. 333-147446) relating to our 1992 Employees Stock
Purchase Plan is incorporated by reference into this Registration Statement. This incorporation is
made under General Instruction E of Form S-8 regarding the registration of additional securities of
the same class as other securities for which there has been filed a registration statement on Form
S-8 relating to the same employee benefit plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by the Registrant with the SEC, are hereby
incorporated by reference in this Registration Statement:
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(a)
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Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2008,
filed with the SEC on March 16, 2009;
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(b)
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All other reports filed pursuant to Section 13(a) of 15(d) of the Securities Exchange
Act of 1934, as amended (
Exchange Act
) since the end of the fiscal year covered by the
Registrants Annual Report referred to in (a) above; and
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(c)
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The description of the Registrants Common Stock contained in the Registrants
Registration Statement on Form 8-A, (File No. 000-23092) (including any amendment or report
filed for the purpose of updating such description).
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All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act, prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered hereby have been sold or which deregisters
all securities 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.
Unless expressly incorporated into this Registration Statement, a report furnished on Form 8-K
prior or subsequent to the date hereof shall not be incorporated by reference into this
Registration Statement, except as to specific sections of such statements as set forth therein. 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 in any subsequently filed document which also is deemed to be
incorporated by reference herein modifies or supersedes such statement.
We will furnish without charge to you, upon written or oral request, a copy of any or all of
the documents described above, except for exhibits to those documents, unless the exhibits are
specifically incorporated by reference into those documents. Requests for copies should be
addressed to:
National Dentex Corporation
Attention: Richard F. Becker, Jr., Executive Vice President
2 Vision Drive, Natick, Massachusetts 01760
Telephone: (508) 907-7800
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares to be offered hereby will be passed upon for us by Posternak
Blankstein & Lund LLP (
PBL
) of Boston, Massachusetts. Donald H. Siegel, P.C., a partner of PBL,
serves as our Secretary.
Item 6. Indemnification of Directors and Officers.
We are incorporated under the laws of the Commonwealth of Massachusetts. The Massachusetts
Business Corporation Act, which became effective on July 1, 2004 and under which we are governed,
provides at Section 8.51 that a corporation may indemnify a director who is a party to a proceeding
because he is a director against liability incurred in the proceeding if he conducted himself in
good faith and he reasonably believed that his conduct was in the best interests of the corporation
or that his conduct was at least not opposed to the best interests of the corporation, and, in the
case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful.
Section 8.52 of the Massachusetts Business Corporation Act requires corporations to indemnify any
director who was wholly successful in the defense of any proceeding to which he was a party because
he was a director of the corporation against reasonable expenses incurred by him in connection with
the proceeding.
Section 8.56 of the Massachusetts Business Corporation Act provides that a corporation may
indemnify and advance expenses to an officer of the corporation who is a party to a proceeding
because he is an officer of the corporation to the same extent as a director, and, if he is an
officer but not a director, to such further extent as may be provided by the articles of
organization, the bylaws, a resolution of the board of directors or contract, except for liability
arising out of acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law. Section 8.56 also provides that an officer of the corporation who is not
a director is entitled to mandatory indemnification under Section 8.52, and that the officer may
apply to a court for indemnification or an advance for expenses, in each case to the same extent to
which a director may be entitled to indemnification or advance under those provisions.
Section 8.57 of the Massachusetts Business Corporation Act also contains provisions
authorizing a corporation to obtain insurance on behalf of any director or officer of the
corporation against liabilities, whether or not the corporation would have the power to indemnify
against such liabilities. The registrant maintains director and officer liability insurance for the
benefit of its directors and officers.
Article Six of our Restated Articles of Organization, as amended and in effect, eliminates the
personal liability of each member of our Board of Directors to the Registrant or its stockholders
for monetary damages for breach of fiduciary duty as a director. However, the liability of a
director is not eliminated (i) for any breach of such directors 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 Sections 61 or 62 of the predecessor
Massachusetts Business Corporation Law as in effect at the time our Articles of Organization were
last amended, or any amendatory or successor provision thereto (which includes Section 6.40 and
6.41 under the new Massachusetts Business Corporation Law that went into effect on July 1, 2004),
and (iv) for any transaction from which such director derived an improper personal benefit. This
provision is intended to afford directors additional protection, and limit their potential
liability, from suits alleging a breach of duty of care by a director. We believe that this
provision will assist us in maintaining and securing the services of directors who are not
employees of the Registrant. As a result of the inclusion of such a provision, stockholders may be
unable to recover monetary damages against directors for actions taken by them that constitute
fiduciary duties, although it may be possible to obtain injunctive or other equitable relief with
respect to such actions. If equitable remedies are found not to be available to stockholders for
any particular case, stockholders may not have any effective remedy against the challenged conduct.
Our By-Laws also provide that directors and officers shall be indemnified against liabilities
arising from their service as directors or officers to the fullest extent permitted by
Massachusetts law, which generally requires that the individual act in good faith and in a manner
he reasonably believes to be in or not opposed to the Registrants best interests.
Item 7. Exemption from Registration Claimed.
3
Not applicable.
Item 8. Exhibits.
The following is a list of exhibits filed as part of this Registration Statement.
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Exhibit
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Number
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Exhibit
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3(i
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)(a)
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Restated Articles of Organization of the Registrant, filed with the Massachusetts
Secretary of State on October 14, 1993 (incorporated by reference to Exhibit 3.1 to
the Registrants Annual Report on Form 10-K for the fiscal year ended December 31,
2004 as filed with the SEC on May 24, 2005).
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3(i
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)(b)
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Articles of Amendment, filed with the Massachusetts Secretary of State on September
26, 1995 (incorporated by reference to Exhibit 3.2 to the Registrants Annual Report
on Form 10-K for the fiscal year ended December 31, 2004 as filed with the SEC on May
24, 2005).
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3(ii)
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Amended and Restated By-Laws of the Company, as amended on March 25, 2008
(incorporated by reference to Exhibit 3(ii) to the Registrants Current Report on
Form 8-K as filed with the SEC on March 27, 2008).
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4.1
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1992 Employees Stock Purchase Plan (incorporated by reference to Exhibit
10.11 to the Registrants Annual Report on Form 10-K for the fiscal year ended
December 31, 2005 as filed with the SEC on March 16, 2006), as amended effective April
4, 2000 (pursuant to an amendment thereto hereby incorporated by reference to Exhibit
4.1 to the Registrants registration statement on Form S-8 as filed with the SEC on
June 9, 2000).
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4.2
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Second Amendment to 1992 Employees Stock Purchase Plan, as previously
amended (incorporated by reference to Exhibit 4.4 to the Registrants registration
statement on Form S-8 as filed with the SEC on November 16, 2007).
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*4.3
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Third Amendment to 1992 Employees Stock Purchase Plan, as previously amended, dated as of May 12, 2009.
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*5.1
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Opinion of Posternak Blankstein & Lund LLP
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*23.1
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Consent of PricewaterhouseCoopers LLP.
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23.2
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Consent of Posternak Blankstein & Lund LLP (included within Exhibit 5.1).
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24.1
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Power of Attorney (included with signature pages).
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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 (the Securities Act);
(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
4
(if the total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) of the Securities Act if, in the aggregate, the changes in
volume and price represent no more than a 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;
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 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 (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 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, each filing of the Registrants 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.
5
SIGNATURES
The Registrant.
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 the requirements
for filing on Form S-8 and has duly caused this Registration Statement on Form S-8 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the town of Natick, Commonwealth of
Massachusetts on June 1, 2009.
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NATIONAL DENTEX CORPORATION
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By:
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/s/ David L. Brown
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David L. Brown, President and Chief
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Executive Officer
(Principal Executive Officer)
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration
Statement on Form S-8 has been signed below by the following persons in the capacities and on the
dates indicated.
Each person, in so signing, also hereby makes, constitutes and appoints David L. Brown and
Richard F. Becker, Jr., and each of them, each acting alone, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and
in his or her name, place and stead, in any and all capacities in connection with this Registration
Statement on Form S-8, including without limiting the generality of the foregoing, to sign the
Registration Statement, including any and all stickers and post-effective amendments to the
Registration Statement, and to sign any and all additional registration statements that are filed
pursuant to General Instruction E to Form S-8 or Rule 462(b) under the Securities Act, and to file
the same, with all exhibits thereto, and other documents in connection therewith, with the SEC and
any applicable securities exchange or securities self-regulatory body, granting unto said
attorneys-in-fact and agents, each acting alone, 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 fully 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 their substitute(s), may lawfully do or cause to be
done by virtue hereof.
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Signature
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Title
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Date
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/s/ David V. Harkins
David V. Harkins
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Chairman of the Board and Director
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June 1, 2009
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/s/ Jack R. Crosby
Jack R. Crosby
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Director
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June 1, 2009
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/s/ Thomas E. Callahan
Thomas E. Callahan
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Director
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June 1, 2009
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/s/ Norman F. Strate
Norman F. Strate
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Director
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June 1, 2009
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6
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Signature
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Title
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Date
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/s/ James E. Mulvihill, D.M.D.
James E. Mulvihill, D.M.D.
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Director
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June 1, 2009
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/s/ David L. Brown
David L. Brown
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President, CEO, and Director
(Principal Executive Officer)
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June 1, 2009
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/s/ Wayne M. Coll
Wayne M. Coll
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Vice President & Chief
Financial
Officer (Principal Financial and Accounting Officer)
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June 1, 2009
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7
NATIONAL DENTEX CORPORATION
INDEX TO EXHIBITS
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Exhibit
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Number
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Exhibit
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3(i
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)(a)
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Restated Articles of Organization of the Registrant, filed with the Massachusetts
Secretary of State on October 14, 1993 (incorporated by reference to Exhibit 3.1 to
the Registrants Annual Report on Form 10-K for the fiscal year ended December 31,
2004 as filed with the SEC on May 24, 2005).
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3(i
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)(b)
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Articles of Amendment, filed with the Massachusetts Secretary of State on September
26, 1995 (incorporated by reference to Exhibit 3.2 to the Registrants Annual Report
on Form 10-K for the fiscal year ended December 31, 2004 as filed with the SEC on May
24, 2005).
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3(ii)
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Amended and Restated By-Laws of the Company, as amended on March 25, 2008
(incorporated by reference to Exhibit 3(ii) to the Registrants Current Report on Form
8-K as filed with the SEC on March 27, 2008).
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4.1
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1992 Employees Stock Purchase Plan (incorporated by reference to Exhibit
10.11 to the Registrants Annual Report on Form 10-K for the fiscal year ended
December 31, 2005 as filed with the SEC on March 16, 2006), as amended effective April
4, 2000 (pursuant to an amendment thereto hereby incorporated by reference to Exhibit
4.1 to the Registrants registration statement on Form S-8 as filed with the SEC on
June 9, 2000).
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4.2
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Second Amendment to 1992 Employees Stock Purchase Plan, as previously
amended (incorporated by reference to Exhibit 4.4 to the Registrants registration
statement on Form S-8 as filed with the SEC on November 16, 2007).
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*4.3
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Third Amendment to 1992 Employees Stock Purchase Plan, as previously amended, dated as of May 12, 2009.
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*5.1
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Opinion of Posternak Blankstein & Lund LLP
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*23.1
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Consent of PricewaterhouseCoopers LLP.
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23.2
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Consent of Posternak Blankstein & Lund LLP (included within Exhibit 5.1).
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24.1
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Power of Attorney (included with signature pages).
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8
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