UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
10-K/A
Amendment
No. 1
ý
ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE
SECURITIES EXCHANGE ACT OF 1934
For the
year ended December 31, 2008
OR
¨
TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission
File No. 0-12991
LANGER,
INC.
(Exact
Name of Registrant as Specified in its Charter)
Delaware
|
11-2239561
|
(State
or Other Jurisdiction of
Incorporation
or Organization)
|
(I.R.S.
Employer
Identification
Number)
|
245
Fifth Avenue, Suite 2201
New
York, New York 10016
(Address
of Principal Executive Offices) (Zip Code)
(212)
687-3260
(Registrant’s
Telephone Number, Including Area Code)
Securities
registered pursuant to Section 12(b) of the Act:
NONE
Securities
registered pursuant to Section 12(g) of the Act:
Common
Stock, par value $0.02 per share
(Title of
Class)
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes
¨
No
ý
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Exchange Act. Yes
¨
No
ý
Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes
ý
No
¨
Indicate
by check mark whether the registrant has submitted electronically and posted on
its corporate Web site, if any, every Interactive Data File required to be
submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding
12 months (or for such shorter period that the registrant was required to submit
and post such files). Yes
¨
No
¨
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K is not contained herein, and will not be contained, to the best
of registrant’s knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. Yes
ý
No
¨
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 definition of “large accelerated filer”, “accelerated
filer”, and “smaller reporting company” in Rule 12b-2 of the Exchange
Act. (Check one):
Large
Accelerated Filer
¨
|
Accelerated
Filer
¨
|
Non-accelerated
Filer
o
|
Smaller
reporting company
ý
|
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). Yes
¨
No
ý
As of
June 30, 2008 (i.e., the last day of registrant’s most recently completed second
quarter), the aggregate market value of the common equity held by non-affiliates
of the registrant was $7,458,237, as computed by reference to the closing sale
price on the NASDAQ Global Market of such common stock ($1.21) multiplied by the
number of shares of voting stock outstanding on June 30, 2007 held by
non-affiliates (6,163,832 shares). Exclusion of shares from the calculation of
aggregate market value does not signify that a holder of any such shares is an
“affiliate” of the Company.
The
number of shares of the registrant’s common stock outstanding at April 28, 2009
was 7,788,774 shares.
Explanatory
Note
This Form
10-K/A, Amendment No. 1 is being filed in order to add the information required
by Items 10 through 14 of Part III, which was originally intended to be
incorporated into the Annual Report on Form 10-K for the year ended December 31,
2008, filed with the Securities and Exchange Commission on March 24, 2009
(“Original Filing”) by reference to the information to be included in the
registrant’s Proxy Statement for the 2009 Annual Meeting of Stockholders. Except
for the inclusion of the information described above, no other changes have been
made to the Original Filing. The Original Filing continues to speak as of the
date of the Original Filing and the registrant has not updated the disclosure
contained therein to reflect any events which occurred subsequent to the filing
of the Original Filing or to modify the disclosure contained in the Original
Filing, except to the extent of the information included
herein.
References
in this report to “Langer,” “Company,” “we,” “our,” and “us,” refer to Langer,
Inc. and, if so indicated or the context requires, includes our wholly-owned
subsidiaries Twincraft, Inc. (“Twincraft”) and Silipos, Inc.
(“Silipos”).
PART
III
Item
10. Directors and Executive Officers of the
Company
|
(i)
|
Set
forth below are the names of the persons who are the directors of Langer,
Inc., their ages and respective business backgrounds, including
directorships of other public
companies:
|
Peter A. Asch,
48, became a
director of the Company on January 23, 2007, immediately following our
acquisition of Twincraft, Inc., from Mr. Asch and the other former holders of
the Twincraft capital stock. Mr. Asch serves as the President of
Twincraft and of our personal care products division, and has been the Chief
Executive Officer of Twincraft since 1995. Mr. Asch graduated with a B.S. in
Political Science and International Relations from Queen’s University, located
in Kingston, Ontario, in 1983.
Stephen M. Brecher,
69, has
been a member of our Board of Directors since May 1, 2006 and is Chairman of our
Audit Committee. In February 2006, he joined the certified public accounting
firm of Weiser LLP as a Senior Advisor and currently serves as Partner in charge
of the tax practice. Mr. Brecher was an independent consultant from April 2005
to January 2006 and was a principal of XRoads Solutions Group, an international
consulting firm from September 2001 to March 2005. Prior thereto, he spent 33
years at KPMG LLP, a certified public accounting firm, 26 years of which as a
tax partner specializing in international banking. Mr. Brecher is a CPA and
attorney and a member of the New York State Bar. He also served as a member of
the board of directors of Refco, Inc., a public company, from January 2006
through December 2006. The Board of Directors has identified Mr. Brecher as the
audit committee financial expert under the listing requirements of the NASDAQ
Global Market and has determined that Mr. Brecher is independent of the Company
based on the NASDAQ Global Market’s definition of “independence.”
Burtt R. Ehrlich,
69, has
been a member of our Board of Directors since February 13, 2001, and is a member
of our Audit Committee, our Compensation Committee and our Nominating/Corporate
Governance Committee. Mr. Ehrlich served as our Chairman of the Board of
Directors from February 2001 until November 2004. Mr. Ehrlich served as a
director of Armor Holdings, Inc., a manufacturer and supplier of military
vehicles, armed vehicles and safety and survivability products and systems to
the aerospace & defense, public safety, homeland security and commercial
markets, which was listed on The New York Stock Exchange, from January 1996
until July 2007, when it was acquired by BAE Systems plc. Mr. Ehrlich has served
as a member of the Board of Directors of Clarus Corporation since June 2002. Mr.
Ehrlich served as Chairman and Chief Operating Officer of Ehrlich Bober
Financial Corp. (the predecessor of Benson Eyecare Corporation) from December
1986 until October 1992, and as a director of Benson Eyecare Corporation from
October 1992 until November 1995. Mr. Ehrlich is member of the Board of Trustees
of The Arbitrage Fund, a registered investment company.
Stuart P. Greenspon,
69, has
been a member of our Board of Directors since November 8, 2005 and is a member
of our Compensation Committee. Mr. Greenspon has been an independent business
consultant for more than 10 years. Prior to that, he was an owner and operating
officer of Call Center Services, Inc. from 1990 to 1995 and of Pandick
Technologies, Inc. from 1982 to 1989.
David S. Hershberg,
67
,
was appointed a Director in
June 2008 and is a member of our Compensation Committee and our
Nominating/Corporate Governance Committee. Mr. Hershberg is a
graduate of New York University and Harvard Law School and has had a
distinguished career serving in various legal and business capacities for
companies such as IBM, Shearson Lehman Brothers (Vice Chairman) , and Viatel,
Inc. (Executive Vice President, Finance and Law), in addition to directorships
at Bank Julius Baer and OutSource International. Since 2006, Mr.
Hershberg has served as a consultant to companies such as Aquiline LLC, The
Solaris Group, Colchis Capital and CapIntro, in addition to serving on the board
of directors for a number of private equity sponsored-owned businesses. From
1995 until 2006, Mr. Hershberg served as vice president and assistant general
counsel responsible for the corporate legal group at IBM.
W. Gray Hudkins
, 33, became
our Chief Operating Officer effective as of October 1, 2004 and our President
and Chief Executive Officer effective January 1, 2006. He became a director of
the Company in June 2006. Mr. Hudkins served as Director of Corporate
Development for Clarus Corporation from December 2002 until September 2004, as a
principal in Kanders & Company from December 2003 until September 2004, and
as Director of Corporate Development for the Company from April 2004 until
September 2004. From February 2002 until December 2002, Mr. Hudkins served as
Manager of Financial Planning and Development for Bay Travelgear, Inc., a
branded consumer products company based in New York and Chicago. From April 2000
until February 2002, Mr. Hudkins served as an associate at Chartwell Investments
LLC, a New York based private equity firm, and from August 1999 until April
2000, Mr. Hudkins served as an associate at Saunder, Karp & Megrue L.P., a
private merchant bank based in Stamford, Connecticut. Mr. Hudkins graduated cum
laude with an A.B. in Economics and a Certificate in Germanic Language and
Literature from Princeton University in 1997.
Warren B. Kanders,
51, has
been a Director and Chairman of our Board of Directors since November 12, 2004.
Since May 2007, Mr. Kanders has served as a director of Highlands Acquisition
Corp., a publicly-held blank check company formed with a focus on acquiring a
business in the healthcare industry. Mr. Kanders has served as the
President of Kanders & Company, Inc. since 1990. Prior to the completion of
the acquisition of Armor Holdings, Inc., formerly a New York Stock
Exchange-listed company and a manufacturer and supplier of military vehicles,
armored vehicles and safety and survivability products and systems to the
aerospace and defense, public safety, homeland security and commercial markets,
by BAE Systems plc on July 31, 2007, he served as the Chairman of the Board of
Armor Holdings, Inc. since January 1996 and as its Chief Executive Officer since
April 2003. Mr. Kanders has served as a member of the Board of Directors of
Clarus Corporation since June 2002 and as the Executive Chairman of Clarus
Corporation’s Board of Directors since December 2002. Mr. Kanders has served as
Non-Executive Chairman of the Board of Directors of Stamford Industrial Group,
Inc. (formerly known as Net Perceptions, Inc.), a publicly-held company that,
through its subsidiary, Concord Steel, is a leading independent manufacturer of
steel counterweights, since October 3, 2006, and served as Executive Chairman of
its Board of Directors from April 2004 through October 3, 2006. From October
1992 to May 1996, Mr. Kanders served as Founder and Vice Chairman of the Board
of Benson Eyecare Corporation, a distributor of eye care products and services.
Mr. Kanders received a B.A. degree in Economics from Brown
University.
The terms
of all directors expire at the time of the next annual meeting of shareholders
of the Company. There are no family relationships among the directors
and/or executive officers identified in Paragraph (ii) of this Item
10.
|
(ii)
|
The
following table sets forth the name, age and position of each of our
executive officers as of April 28,
2009:
|
Name
|
|
Age
|
|
Position
|
W.
Gray Hudkins
|
|
33
|
|
President
and Chief Executive Officer, and Director
|
Peter
A. Asch
|
|
48
|
|
President
of Twincraft, Inc., President of our personal care products division, and
Director
|
Kathleen
P. Bloch
|
|
54
|
|
Vice
President, Chief Operating Officer and Chief Financial
Officer
|
Information
about the business backgrounds of Messrs. Hudkins and Asch is set forth in
paragraph (i) of this Item 10. Ms. Bloch’s business background is as
follows:
Kathleen P. Bloch,
age 54,
was appointed Chief Operating Officer of the Company on October 8,
2008. Since September 4, 2007, Ms. Bloch has served, and continues to
serve, as the Company’s Chief Financial Officer, Vice President and
Secretary. Prior to joining the Company in September 2007, Ms. Bloch
was employed by The Silverman Group, of Short Hills, New Jersey, from January
2007 until September 2007. For 10 years prior thereto, she was employed by
Silver Line Building Products Corporation, a leading, privately held
manufacturer of vinyl windows. She served as Chief Financial Officer from 1999
until 2006, when the company was acquired by Andersen Corporation, a leading
manufacturer of windows. Ms. Bloch received a Master of Business Administration
in 1990 from LaSalle University, Philadelphia, Pennsylvania, and a Bachelor of
Science in Accounting in 1978.
|
(iii)
|
Section
16(a) of the Securities Exchange Act of 1934, as amended, requires our
directors and executive officers and any persons who beneficially own more
than 10% of our capital stock to file with the Commission (and, if such
security is listed on a national securities exchange, with such exchange),
various reports as to ownership of such capital stock. Such persons are
required by Commission regulations to furnish us with copies of all
Section 16(a) forms they file. Based solely upon reports and
representations submitted by the directors, executive officers and holders
of more than 10% of our capital stock, all Forms 3, 4 and 5 showing
ownership of and changes of ownership in our capital stock during 2008
were timely filed with the Commission and the NASDAQ Global
Market.
|
|
(iv)
|
The
Company has adopted a code of ethics that applies to its Chief Executive
Officer and Chief Financial Officer, who are the Company’s principal
executive officer and principal financial and accounting
officer. The code of ethics may be accessed at
www.langercorporate.com, our Internet website, by clicking on “Investor
Relations,” selecting “About our Company,” and then selecting “Corporate
Governance”. The Company intends to disclose future amendments
to, or waivers from, certain provision of its code of ethics, if any, on
the above website within four business days following the date of such
amendment or waiver.
|
Item
11. Executive Compensation
EXECUTIVE
COMPENSATION
Compensation
Discussion and Analysis
Overview
The
Compensation Committee of the Board of Directors (the “Compensation Committee”)
assists the Board in establishing compensation packages for the Company’s
executive officers and non-employee directors and administering the Company’s
incentive plans. The Compensation Committee is generally responsible for setting
and administering the policies which govern annual salaries of
executive officers, raises and bonuses and certain awards of stock options,
restricted stock awards and other awards, under the Company’s incentive plans
and otherwise, and, where applicable, compliance with the requirements of
Section 162(m) of the Internal Revenue Code of 1986, as amended (the “IRC”) and
such responsibility is generally limited to the actions taken by the
Compensation Committee, although at times the full Board has determined annual
salaries of executive officers, raises and, where the Company has determined
that compliance with the provisions of IRC Section 162(m) is not required,
bonuses as well as grants of stock options and common stock without having first
received recommendations from the Compensation Committee. From time to time, the
Compensation Committee reviews our compensation packages to ensure that they
remain competitive with the compensation packages offered by similarly-situated
companies and continue to incentivize management and align management’s
interests with those of our Stockholders.
The
Compensation Committee is comprised of three directors. Each member
of the Compensation Committee meets the independence requirements specified by
the NASDAQ Global Market and by Section 162(m) of the Internal Revenue
Code.
Executive
Compensation Philosophy
The
general philosophy of our executive compensation program is to attract and
retain talented management while ensuring that our executive officers are
compensated in a way that advances the interests of our Stockholders. In
pursuing these objectives, the Compensation Committee believes that it is
critical that a substantial portion of each executive officer’s compensation be
contingent upon our overall performance. The Compensation Committee is also
guided by the principles that our compensation packages must be competitive,
must support our overall strategy and objectives, must provide significant
rewards for outstanding financial performance while establishing clear
consequences for underperformance and must align management’s interests with the
interests of shareholders by linking compensation with performance. Annual
bonuses and long-term awards for our executive officers should take into account
not only objective financial goals, but also individual performance goals that
reinforce our core values, which include leadership, accountability, ethics and
corporate governance. It is the Compensation Committee’s responsibility to
determine the performance goals for the performance-based compensation payable
to our named executive officers in compliance with section 162(m) of the IRC,
subject to ratification by the Board. Subject to this limitation, the
Compensation Committee may also make recommendations to the Board with respect
to non-chief executive officer compensation and, either alone or with the other
independent members of our Board, to determine and approve our Chief Executive
Officer’s compensation.
In
determining the compensation packages for our executive officers and
non-employee directors, the Compensation Committee and the Board of Directors
have evaluated the history and performance of the Company, previous compensation
practices and packages awarded to the Company’s executive officers and
non-employee directors, and compensation policies and packages awarded to
executive officers and non-employee directors at similarly-situated
companies.
Use
of Outside Consultants
The
Compensation Committee has the authority to retain and terminate any independent
compensation consultant and to obtain independent advice and assistance from
internal and external legal, accounting and other advisors. In 2008, the
Compensation Committee did not engage any such consultants.
Compensation
Program Components
Our
executive compensation program emphasizes company performance, individual
performance and an increase in stockholder value over time in determining
executive pay levels. Our executive compensation program consists of three key
elements: (i) annual base salaries; (ii) a performance-based annual bonus; and
(iii) periodic grants of stock options, restricted stock and performance shares.
The Compensation Committee believes that this three-part approach best serves
our and our Stockholders’ interests by motivating executive officers to improve
our financial position, holding executives accountable for the performance of
the organizations for which they are responsible and by attracting key
executives into our service. Under our compensation program, annual compensation
for executive officers is composed of a significant portion of pay that is “at
risk” − specifically, the annual bonus, stock options, restricted stock and
performance shares.
Annual
Cash Compensation
Base Salary
. In
reviewing and approving the base salaries of our executive officers, the
Compensation Committee considers the scope of work and responsibilities, and
other individual-specific factors; the recommendation of the Chief Executive
Officer (except in the case of his own compensation); compensation for similar
positions at similarly-situated companies; and the executive’s experience.
Except where an existing agreement establishes an executive’s salary, the
Compensation Committee reviews executive officer salaries annually at the end of
the year and establishes the base salaries for the upcoming year. In 2008, the
salaries for the Company’s named executive officers were established pursuant to
their respective employment agreements.
Performance-Based Annual
Bonus
. With regard to the compensation of the named executive
officers subject to section 162(m) of the IRC, the Compensation Committee
establishes the performance goals and then certifies the satisfaction of such
performance goals prior to the payment of the performance-based bonus
compensation. In reviewing and approving the annual performance-based bonus for
our executive officers, the Compensation Committee may also consider an
executive’s contribution to the overall performance of the Company as well as
annual bonuses awarded to persons holding similar positions at
similarly-situated companies. Bonuses may be paid under the 2007 Annual
Incentive Plan, or otherwise at the discretion of the Compensation Committee or
the Board.
Equity-Based
Compensation
Executive
officers of the Company and other key employees who contribute to the growth,
development and financial success of the Company are eligible to be awarded
stock options, shares of restricted common stock, bonuses of shares of common
stock, and performance shares of common stock under our 2005 and 2007 Stock
Incentive Plans and the 2007 Annual Incentive Plan. Awards under these plans
help relate a significant portion of an employee’s long-term remuneration
directly to stock price appreciation realized by all our Stockholders and aligns
an employee’s interests with those of our Stockholders. The Compensation
Committee believes equity-based incentive compensation aligns executive and
stockholder interests because (i) the use of a multi-year lock-up schedule for
equity awards encourages executive retention and emphasizes long-term growth,
and (ii) paying a significant portion of management’s compensation in our equity
provides management with a powerful incentive to increase stockholder value over
the long term. In connection with the Company’s prior acceleration of the
vesting and issuance of certain stock options, the Company required the
optionees who do not have employment agreements with the Company to execute
lock-up, confidentiality and non-competition agreements as a condition to the
acceleration of such stock options. Such lock-up, confidentiality and
non-competition agreements executed with the Company’s employees provide the
Company with added protection. In addition, the lock-up restrictions serve as an
employee retention mechanism since the lock-up restrictions will be extended for
an additional five-year period in the event an employee terminates his/her
employment with the Company while any of such lock-up restrictions are still in
effect. The Compensation Committee determines appropriate individual long-term
incentive awards in the exercise of its discretion in view of the above criteria
and applicable policies. In 2008, the Company did not grant any
awards of restricted stock or options under any of the plans to any of its
executive officers.
Perquisites
and Other Personal and Additional Benefits
Executive
officers participate in other employee benefit plans generally available to all
employees on the same terms as similarly situated employees.
The
Company maintains a qualified 401(k) plan that provides for a Company
contribution based on a matching schedule of a maximum of the lower of (i) 25%
of each given employee’s annual 401(k) contribution, or (ii) 4% of each given
employee’s annual salary.
On
February 9, 2009
,
the Company
terminated its 401(k) match.
The
Company also provides named executive officers with perquisites and other
personal benefits that the Company and the Compensation Committee believe are
reasonable and consistent with its overall compensation program to better enable
the Company to attract and retain superior employees for key positions. The
Compensation Committee periodically reviews the levels of perquisites and other
personal benefits provided to named executive officers.
Accounting
and Tax Considerations
Section
162(m) of the IRC generally disallows a tax deduction to public corporations for
compensation, other than performance-based compensation, over $1,000,000 paid
for any year to an individual who, on the last day of the taxable year, was (i)
the Chief Executive Officer or (ii) among the four other highest compensated
executive officers whose compensation is required to be reported in the Summary
Compensation Table contained herein. Compensation programs generally will
qualify as performance-based if (1) compensation is based on pre-established
objective performance targets, (2) the programs’ material features have been
approved by Stockholders, and (3) there is no discretion to increase payments
after the performance targets have been established for the performance period.
The Compensation Committee desires to maximize deductibility of compensation
under Section 162(m) of the IRC to the extent practicable while maintaining a
competitive, performance-based compensation program. However, the Compensation
Committee also believes that it must reserve the right to award compensation
which it deems to be in the best interests of our Stockholders but which may not
be tax deductible under Section 162(m) of the IRC.
Post-Employment
and Other Events
Retirement,
death, disability and change-in-control events trigger the payment of certain
compensation to the named executive officers that is not available to all
salaried members. Such compensation is discussed under the headings “Employment
Agreements” and “Potential Payments Upon Termination or Change in
Control.”
Role
of Executive Officers in Compensation Decisions
The
Compensation Committee determines the total compensation of our Chief Executive
Officer and oversees the design and administration of compensation and benefit
plans for all of the Company’s employees. Our Chief Executive Officer has met
with the Compensation Committee to present topical issues for discussion and
education as well as specific recommendations for review. The Chairman of the
Board and the Chief Executive Officer may attend a portion of many Compensation
Committee meetings. The Compensation Committee also obtains input from our
legal, finance and tax functions, as appropriate.
Summary
The
Compensation Committee believes that the total compensation package has been
designed to motivate key management to improve the operations and financial
performance of the Company, thereby increasing the market value of our Common
Stock.
Summary
Compensation Table
The
following summary compensation table sets forth information concerning the
annual and long-term compensation earned by the Company’s chief executive
officer and other senior executive officers who served as such during the year
ended December 31, 2008.
Name
and Principal Position
|
|
Year
|
|
|
Salary
($)
|
|
|
Bonus
($)
|
|
|
Stock
Award
($)
|
|
|
Option
Award
($)
(1)
|
|
|
All
Other Compensation
($)
|
|
|
Total
($)
|
|
W.
Gray Hudkins,
President
and
Chief
Executive Officer
|
|
|
2008
2007
2006
|
|
|
$
|
300,000
300,000
275,000
|
|
|
$
|
−
−
100,000
|
|
|
$
|
−
−
−
|
|
|
$
|
−
−
|
|
|
$
|
22,875
7,750
7,750
|
(2)
|
|
$
|
322,875
307,750
382,750
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kathleen
P. Bloch,
Vice
President, Chief Operating Officer and Chief Financial
Officer
|
|
|
2008
2007
|
|
|
|
250,000
76,923
|
(4)
|
|
|
−
−
|
|
|
|
−
−
|
|
|
|
−
−
|
|
|
|
2,875
−
|
(3)
|
|
|
252,875
76,923
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kathryn
P. Kehoe,
Senior
Vice President
|
|
|
2008
2007
2006
|
|
|
|
56,250
228,845
200,000
|
(5)
|
|
|
−
−
50,000
|
|
|
|
−
−
−
|
|
|
|
−
105,815
193,994
|
|
|
|
312
1,300
1,900
|
(6)
|
|
|
56,562
3
35,960
445,894
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Peter
A. Asch,
President,
Twincraft, Inc.
|
|
|
2008
2007
|
|
|
|
291,193
271,385
|
(7)
|
|
|
−
−
|
|
|
|
−
−
|
|
|
|
100,640
94,515
|
|
|
|
22,815
21,514
|
(8)
|
|
|
414,648
387,414
|
|
(1)
|
The
amounts in the “Option Awards” column are calculated based on Statement of
Financial Accounting Standards No. 123 (revised 2004), “Share-Based
Payments” (“FAS 123R”) (excluding any estimate for forfeitures). They
equal the aggregate dollar amount of compensation expense related to stock
options that was recognized in the Company’s financial statements
contained on Form 10-K for the years ended December 31, 2008 and 2007.
Under FAS 123R, a pro rata portion of the total expense at the time of
grant is recognized over the vesting schedule of the grant. The initial
expense is based on the fair value of the stock option as estimated using
the Black-Scholes option-pricing model. The assumptions used to arrive at
the Black-Scholes values are disclosed in Note 15, Stock Options, to our
consolidated financial statements included in Item 8 of our Annual Report
on Form 10-K for the year ended December 31,
2008.
|
(2)
|
“All
Other Compensation” amount shown for Mr. Hudkins in 2008 consists of
$2,875 in contributions under the Company’s 401(k) defined contribution
retirement plan and $20,000 in non-accountable expense allowance pursuant
to Mr. Hudkins’ employment
agreement.
|
(3)
|
“All
Other Compensation” amount shown for Ms. Bloch in 2008 consists of $2,875
in contributions under the Company’s 401(k) defined contribution
retirement plan.
|
(4)
|
Ms.
Bloch joined the Company on September 4,
2007.
|
(5)
|
Ms.
Kehoe voluntarily resigned as an officer and employee effective February
5, 2008.
|
(6)
|
“All
Other Compensation” amount shown for Ms. Kehoe in 2008 consists of $312 in
contributions under the Company’s 401(k) defined contribution retirement
plan.
|
(7)
|
Mr.
Asch joined the Company on January 23, 2007, in connection with the
Twincraft acquisition.
|
(8)
|
“All
Other Compensation” amount shown for Mr. Asch in 2008 includes $2,815 in
contributions under the Company’s 401(k) defined contribution retirement
plan and $20,000 in non-accountable expense allowance pursuant to Mr.
Asch’s employment agreement.
|
Employment
Agreements
W.
Gray Hudkins
On
October 9, 2007, the Company entered into a new employment agreement with W.
Gray Hudkins, the Company’s President and Chief Executive Officer, replacing his
prior employment agreement with the Company which expired on September 30, 2007.
Under the new employment agreement, Mr. Hudkins’ base compensation is $300,000
per year, subject to increase as the Compensation Committee and the Board of
Directors may determine from time to time. Mr. Hudkins is eligible for
participation, at the discretion of the Compensation Committee and the Board of
Directors, in the Company’s 2005 Stock Incentive Plan and 2007 Stock Incentive
Plan, and to receive other benefits generally available to the Company’s
executives, and to the maintenance of a $1 million life insurance policy payable
to beneficiaries named by Mr. Hudkins. The term of the agreement is three years,
with a one-year renewal option, subject to the right of either party to
terminate the employment on notice. Mr. Hudkins has a right to six months’
severance if his employment is terminated by the Company without cause, or if
the Company declines to renew the agreement for the one-year renewal term. The
agreement contains certain confidentiality, non-competition, and
non-solicitation provisions. Effective January 1, 2009, Mr.
Hudkins agreed to forego a portion of his salary and to receive a salary of
$100,000 from the Company for fiscal year 2009.
Kathleen
P. Bloch
On
September 4, 2007, the Company entered into an employment agreement with
Kathleen P. Bloch, the Company’s Vice President, Chief Operating Officer and
Chief Financial Officer. The employment agreement has a term of three
years, subject to termination without cause at the discretion of either party.
Ms. Bloch receives base compensation at the rate of $250,000 per year, and is
eligible for discretionary bonuses as determined by the Compensation Committee
from time to time. At the commencement of her employment commences on September
4, 2007, Ms. Bloch received a restricted stock award of 75,000 shares of common
stock under the Company’s 2007 Stock Incentive Plan, which will vest in full
upon the later to occur of (i) the Company’s achievement of trailing 12-month
EBITDA of $25,000,000, and (ii) the Company’s common stock having a closing
price of $15.00 for five trading days in any period of 10 consecutive trading
days. The award will expire if it has not vested within 10 years, or if Ms.
Bloch is no longer an employee of the Company. “EBITDA” is defined in the
employment agreement and the related restricted stock award agreement to mean
earnings (excluding non-recurring events in the discretion of the Board of
Directors) before interest, taxes, depreciation and amortization in any four
consecutive calendar quarters, as reflected in the Company’s Quarterly Reports
on Form 10-Q or Annual Report on Form 10-K, as applicable, commencing with the
quarter beginning October 1, 2007. In the event of a divestiture of a business
unit of the Company, EBITDA for any such period of four quarters that includes
the date of the divestiture shall be the greater of (i) the actual EBITDA for
the relevant four quarters, and (ii) the sum of (A) the actual EBITDA through
the date of divestiture and (B) the actual EBITDA from the date of divestiture
less EBITDA attributable to the divested portion of the business plus an amount
equal to 20% of the purchase price paid to the Company in the
divestiture.
Peter A. Asch
On
January 23, 2007, in connection with the Twincraft acquisition, Twincraft, which
is now a wholly-owned subsidiary of the Company, entered into an employment
agreement with Mr. Asch, who will serve as president of Twincraft. This
agreement is for a term of three years and provides for initial base
compensation of $294,000 per year (subject to increase at the discretion of the
Company’s Board of Directors), plus annual discretionary bonuses. The agreement
also provides that Mr. Asch will receive a non-accountable expense allowance at
the rate of $20,000 per year, payable monthly. In addition, under the employment
agreement, Mr. Asch received a stock option award under the Company’s 2005 Stock
Incentive Plan to purchase 200,000 shares of the Company’s common stock having
an exercise price equal to $4.20 per share, of which (i) 66,666 vest on January
23, 2009; (ii) 66,666 vest on January 23, 2010; and (iii) 66,667 vest on January
23, 2011. The employment agreement contains a non-competition covenant and
non-solicitation provisions (relating to Twincraft’s and the Company’s employees
and customers) effective during the term of his employment and for one year
after any termination of Mr. Asch’s employment for cause, voluntarily or due to
death or disability and for the duration of any extended severance period of up
to 12 months in the event of termination of employment without cause due to
failure to renew or extend this employment agreement.
Kathryn
P. Kehoe
Ms.
Kehoe, who voluntarily resigned as an officer and employee of the Company
effective February 5, 2008, entered into an employment agreement with the
Company dated as of January 16, 2006, that provided that she would serve as an
executive of the Company for a term of three years, subject to termination
without cause on notice. The agreement provided for an annual base salary of
$200,000, subject to increase in the Board’s discretion, participation in
incentive and bonus plans at the discretion of the Company’s Board of Directors,
ten-year options to purchase up to 100,000 shares of the Company’s common stock
at an exercise price of $4.96 per share, vesting in three equal consecutive
annual installments commencing on January 24, 2007. Ms. Kehoe also agreed to
certain confidentiality, non-competition, and non-solicitation provisions. If
Ms. Kehoe had been terminated by the Company without cause, she would have been
entitled to receive her base compensation for a period of six months from the
date of termination.
Grants
of Plan-Based Awards
There
were no awards to named executive officers in 2008 under the Company’s 2005 and
2007 Stock Incentive Plans.
Outstanding
Equity Awards at Fiscal Year End
The
following table sets forth information concerning stock options and stock awards
held by the named executive officers at December 31, 2008:
OPTION
AWARDS
|
|
|
STOCK
AWARDS
|
|
Name
|
|
|
Number
of Securities Underlying Unexercised Options (#)
Exercisable
|
|
|
Number
of Securities Underlying Unexercised Options (#)
Unexercisable
|
|
|
Equity
Incentive Plan Awards: Number of Securities Underlying Unexercised
Unearned Options (#)
|
|
|
Option
Exercise Price ($)
|
|
|
Option
Expiration Date
|
|
|
Number
of Shares or Units of Stock that have not Vested ($)
|
|
|
Market
Value of Shares or Units of Stock That Have Not Vested ($)
|
|
|
Equity
Incentive Plan Awards; Number of Unearned Shares, Units or Other Rights
That Have Not Vested (#)
|
|
|
Equity
Incentive Plan Awards: Market or Payout Value of Unearned Shares,
Units or Other Rights That Have Not Vested ($)
|
|
W.
Gray Hudkins
|
|
|
|
50,000
|
(1)
|
|
|
—
|
|
|
|
—
|
|
|
$
|
4.89
|
|
|
11/8/15
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
137,500
|
(1)
|
|
|
—
|
|
|
|
—
|
|
|
|
6.52
|
|
|
6/23/15
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
150,000
|
(1)
|
|
|
—
|
|
|
|
—
|
|
|
|
7.50
|
|
|
11/12/14
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
275,000
|
(2)
|
|
$
|
206,250
|
|
Kathleen
P. Bloch
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
75,000
|
(3)
|
|
|
56,250
|
|
Peter
A. Asch
|
|
|
|
|
|
|
|
200,000
|
(4)
|
|
|
—
|
|
|
|
4.20
|
|
|
1/23/11
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Kathryn
P. Kehoe
(5)
|
|
|
|
—
|
|
|
|
100,000
|
|
|
|
—
|
|
|
|
4.96
|
|
|
1/24/16
|
|
|
|
—
|
|
|
|
—
|
|
|
|
75,000
|
(6)
|
|
|
56,250
|
|
(1)
|
On
December 20, 2005 the Company accelerated the vesting date of unvested
options to December 31, 2005. Thus, the options of Mr. Hudkins became
fully vested on December 31, 2005. Effective December 31, 2005, the
Company executed a lock-up agreement with Mr. Hudkins under which he is
prohibited from selling, transferring, exchanging, hypothecating, granting
a security interest in, pledging, or otherwise disposing of the shares
acquirable upon exercise of his options until the expiration of various
lock-up periods. As of the date hereof, 79,168 shares acquirable under Mr.
Hudkins’ options are subject to the lock-up agreement. The lock-up periods
expire with respect to 45,834 shares on December 31, 2009, and with
respect to 33,334 shares on April 1,
2010.
|
(2)
|
Represents
a restricted stock award to Mr. Hudkins under the 2005 Stock Incentive
Plan which vests upon a change of control, or upon the Company’s achieving
$10 million EBITDA in any trailing four-quarter period commencing with the
period beginning January 1, 2007.
|
(3)
|
Represents
a restricted stock award to Ms. Bloch under the 2007 Stock Incentive Plan
which vests upon the Company’s achieving $25 million EBITDA in any
trailing four-quarter period commencing with the period beginning October
1, 2007, and the fair market value of the Company’s stock is not less than
$15.00 in any five consecutive trading
days.
|
(4)
|
Stock
options issued under the 2005 Stock Incentive Plan granted to Mr. Asch in
connection with the Company’s purchase of Twincraft on January 23, 2007.
The options vest in three equal consecutive annual tranches commencing
January 23, 2009.
|
(5)
|
Ms.
Kehoe resigned effective February 5, 2008, and her rights to the options
and restricted stock awards terminated upon her
resignation.
|
(6)
|
Represents
a restricted stock award to Ms. Kehoe under the 2005 Stock Incentive plan
which was to vest upon a change of control, or upon the Company’s
achieving $10 million EBITDA in any trailing four-quarter period
commencing with the period beginning January 1, 2008. The award was
terminated upon her resignation on February 5,
2008.
|
Option
Exercises and Stock Vested During Fiscal 2008
There
were no options exercised by any of the Company’s named executive officers, and
no vesting of stock award held by the Company’s named executive officers, in the
year ended December 31, 2008.
Pension
Benefits — Fiscal 2008
There
were no pension benefits earned by the Company’s named executive officers in the
year ended December 31, 2008.
Nonqualified
Defined Contribution and Other Nonqualified Deferred Compensation
Plans
The
Company does not have any nonqualified defined contribution or other
nonqualified deferred compensation plans covering its named executive
officers.
Potential
Payments Upon Termination or Change of Control
The
information below reflect the amount of compensation to each of the named
executive officers of the Company in the event of termination of such
executive’s employment under the following circumstances: voluntary termination
by the executive, termination for cause by the Company, termination without
cause by the Company, termination following a change of control, and termination
on account of disability or death of the executive. The amounts shown assume
that such termination was effective as of December 31, 2008, and thus include
amounts earned through such time and estimates of the amounts which would be
paid out to the executives upon their termination under the circumstances
indicated. The actual amounts to be paid out can only be determined at the time
of such executive’s separation from the Company.
Payments Made Upon
Termination.
Regardless of the manner in which a named
executive officer’s employment terminates, he or she may be entitled to receive
amounts earned during his term of employment.
Payments Made Upon a Change of
Control.
Named executive officers may be entitled to
additional amounts if he or she is terminated following a change of
control. Generally, pursuant to the named executive officers’
employment agreements, a change of control is deemed to occur in the event
that:
|
·
|
the
current members of the Board cease to constitute a majority of the
Board;
|
|
·
|
the
Company shall have been sold by either (i) a sale of all or substantially
all its assets, or (ii) a merger or consolidation, other than any merger
or consolidation pursuant to which the Company acquires another entity, or
(iii) a tender offer, whether solicited or unsolicited;
or
|
|
·
|
any
party, other than the Company, is or becomes the “beneficial owner” (as
defined in the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)), directly or indirectly, of voting securities representing 50% or
more of the total voting power of the
Company.
|
W.
Gray Hudkins
In the
event Mr. Hudkins voluntarily terminates his employment with the requisite 90
days notice or if his employment is terminated by the Company with cause, he is
not entitled to any compensation payments following the date of
termination.
If Mr.
Hudkins’ employment is terminated by the Company without cause, Mr. Hudkins
would be entitled to receive his base salary then in effect ($300,000 as of
December 31, 2008) for a period of six (6) months ($150,000) plus six (6)
months non-accountable expense allowances ($10,000). If Mr. Hudkins’
employment agreement expires without renewal, he would be entitled to receive
his base salary then in effect ($300,000 as of December 31, 2008) for a period
of six (6) months ($150,000) plus six (6) months non-accountable expense
allowance ($10,000). If the Company elects, it may continue to pay base salary
to Mr. Hudkins for an additional six months, provided he continues to comply
with the terms and conditions of the non-competition and non-solicitation
provisions in his employment agreement.
In the
event of a change of control, Mr. Hudkins would immediately vest in 275,000
shares of restricted stock awards granted to him under the 2005 Incentive Stock
Award Plan. At December 31, 2008, based upon the closing common stock market
price of $0.75, these awards would be worth $206,250. All lock-up
agreements with respect to common stock acquirable upon exercise of Mr. Hudkins’
options would automatically expire upon a change of control.
Upon the
event of his death or disability, Mr. Hudkins’ estate would be entitled to
receive base compensation for the remainder of the month for which death or
disability occurred, which would not exceed $25,000. Upon Mr. Hudkins’ death,
his beneficiary would receive the proceeds of a $1 million life insurance
policy.
Kathleen
P. Bloch
If Ms.
Bloch’s employment is terminated by the Company with or without cause, or if she
voluntarily terminates her employment with the requisite two-weeks notice, she
is not entitled to any compensation payments following the date of termination.
In addition, Ms. Bloch is not entitled to any potential payments upon a change
of control. Upon the event of her death or disability, Ms. Bloch’s estate would
be entitled to receive base compensation for the remainder of the month for
which death or disability occurred, which would not exceed $20,834.
Kathryn
P. Kehoe
Ms.
Kehoe, Senior Vice President, resigned effective February 5, 2008, and is not
entitled to any potential payments upon termination or upon change of
control.
Peter
A. Asch
In the
event that the Company terminates Mr. Asch’s employment without cause prior to
January 23, 2010, he is entitled to receive twelve months base compensation
($294,000), provided he complies with the terms and conditions of his employment
agreement. If Mr. Asch’s employment is terminated by the Company with cause or
if he voluntarily terminates his employment, he is not entitled to any
compensation payments following the date of termination. In addition, Mr. Asch
is entitled to receive base compensation for the remainder of the month for
which death or disability occurred, which would not exceed $24,500.
Director
Summary Compensation Table
The
following table summarizes the compensation paid to our non-employee directors
for the fiscal year ended December 31, 2008:
Name
(1)
|
|
Fees
Earned or Paid in Cash ($)
|
|
|
Stock
Options
($)
(2)
|
|
|
Total
($)
|
|
Warren
B. Kanders
(3)
|
|
$
|
−
|
|
|
$
|
−
|
|
|
$
|
−
|
|
Stephen
M. Brecher
|
|
|
25,000
|
|
|
|
13,500
|
|
|
|
38,500
|
|
Burtt
R. Ehrlich
|
|
|
25,000
|
|
|
|
13,500
|
|
|
|
38,500
|
|
Stuart
P. Greenspon
|
|
|
15,000
|
|
|
|
13,500
|
|
|
|
28,500
|
|
David
S. Hershberg
|
|
|
3,750
|
|
|
|
13,500
|
|
|
|
17,250
|
|
(1)
|
W.
Gray Hudkins, the Company’s President and Chief Executive Officer, and
Peter A. Asch, the President of Twincraft, Inc., are not included in this
table. Messrs. Hudkins and Asch are employees of the Company and receive
no additional compensation for their services as directors. The
compensation for Mr. Hudkins and Mr. Asch as employees of the Company is
shown in the Summary Compensation Table and other tables in “Executive
Compensation” showing compensation of named executive officers. Mr. Asch
was not an employee or director of the Company prior to January 23,
2007.
|
(2)
|
On
August 5, 2008, each non-management director received a grant of 15,000
immediately vested options to purchase shares of the Company’s common
stock at $0.90 per share, the closing price of the stock on the date of
the grant.
|
(3)
|
Warren
B. Kanders, the Company’s Chairman, does not receive compensation in his
role as a director of the Company. Mr. Kanders is a principal
of Kanders & Company, which receives consulting fees from the
Company. See “Certain Relationships and Related Transactions”
set forth in Item 13 below.
|
In 2009,
the non-management directors of the Company other than Mr. Kanders, will each
receive cash in the amount of $15,000 which is payable in quarterly installments
during the course of the year. In addition, the Chairs of the Compensation
Committee and the Audit Committee will each be paid an additional $10,000 in
2009 to serve as the Chairs of such committees, which will be payable in
quarterly installments during the course of the year.
COMPENSATION
COMMITTEE REPORT
The
Company’s Compensation Committee of the Board of Directors (the “Compensation
Committee”) has submitted the following report for inclusion in the 2009 Proxy
Statement:
The
Compensation Committee has reviewed and discussed the Compensation Discussion
and Analysis contained in this Proxy Statement with management. Based on the
Compensation Committee’s review of and the discussions with management with
respect to the Compensation Discussion and Analysis, the Compensation Committee
has recommended to the Board of Directors that the Compensation Discussion and
Analysis be included in this Proxy Statement and in the Company’s Annual Report
on Form 10-K for the year ended December 31, 2008 for filing with the
SEC.
MEMBERS
OF THE COMPENSATION
COMMITTEE
Burtt R.
Ehrlich (Chairman)
David S.
Hershberg
Compensation
Committee Interlocks and Insider Participation
During
2008, none of the members of our Compensation Committee, (i) served as an
officer or employee of the Company or its subsidiaries, (ii) was formerly an
officer of the Company or its subsidiaries or (iii) entered into any
transactions with the Company or its subsidiaries, other than stock option
agreements and restricted stock awards. During 2008, none of our executive
officers (i) served as a member of the Compensation Committee (or other board
committee performing equivalent functions or, in the absence of any such
committee, the board of directors) of another entity, one of whose executive
officers served on our Compensation Committee, (ii) served as director of
another entity, one of whose executive officers served on our Compensation
Committee, or (iii) served as member of the compensation committee (or other
board committee performing equivalent functions or, in the absence of any such
committee, the board of directors) of another entity, one of whose executive
officers served as a director of the Company.
Item
12. Security Ownership of Certain Beneficial Owners and Management and Related
Stockholder Matters
SECURITY
OWNERSHIP OF CERTAIN
BENEFICIAL
OWNERS AND MANAGEMENT
The
following table sets forth, as of April 28, 2009, certain information regarding
beneficial ownership of our common stock by (a) each person or entity who is
known to us owning beneficially 5% or more of our common stock, (b) each of our
directors, (c) each of our named executive officers and (d) all named executive
officers and directors as a group. Unless otherwise indicated, each of the
Stockholders shown in the table below has sole voting and investment power with
respect to the shares beneficially owned. Unless otherwise indicated, the
address of each person named in the table below is c/o 245 Fifth Avenue, Suite
2201, New York, New York 10016. As used in this table, a beneficial
owner of a security includes any person who, directly or indirectly, through
contract, arrangement, understanding, relationship or otherwise has or shares
(i) the power to vote, or direct the voting of, such security or (ii) investment
power which includes the power to dispose, or to direct the disposition of, such
security. In addition, a person is deemed to be the beneficial owner of a
security if that person has the right to acquire beneficial ownership of such
security within 60 days after the date of this filing on Form
10-K/A.
Name of Beneficial Owner
|
|
Common
Stock
Beneficially
Owned
|
|
|
Percent
(1)
|
|
Warren
B. Kanders,
Chairman
of the Board of Directors
One
Landmark Square
Stamford,
CT 06901
|
|
|
3,798,055
|
(2)
|
|
|
39.79
|
%
|
|
|
|
|
|
|
|
|
|
David
M. Knott
485
Underhill Blvd.
Syosset,
NY 11791
|
|
|
1,716,112
|
(3)
|
|
|
18.06
|
%
|
|
|
|
|
|
|
|
|
|
York
Credit Opportunities Fund, LP
c/o
York Capital Management
767
Fifth Avenue, 17
th
Floor
New
York, NY 10153
|
|
|
1,072,570
|
(4)
|
|
|
12.10
|
%
|
|
|
|
|
|
|
|
|
|
Wynnefield
Capital Management, LLC
450
7
th
Avenue, Suite 509
New
York, NY 10123
|
|
|
858,056
|
(5)
|
|
|
9.92
|
%
|
|
|
|
|
|
|
|
|
|
Ashford
Capital Management, Inc.
P.O.
Box 4172
Wilmington,
DE 19807
|
|
|
794,679
|
(6)
|
|
|
9.42
|
%
|
|
|
|
|
|
|
|
|
|
Peter
A. Asch,
Director
and President of Twincraft, Inc.
2
Tigan Street
Winooski,
VT 0540
|
|
|
716,523
|
(7)
|
|
|
9.12
|
%
|
|
|
|
|
|
|
|
|
|
Bank
of America Corporation
100
North Tryon Street
Charlotte,
NC 28255
|
|
|
657,984
|
(8)
|
|
|
8.45
|
%
|
|
|
|
|
|
|
|
|
|
Atlas
Capital, SA
116
Rue Du Rhone
Case
P.O. 3658 CH-1211
Geneve
3 Switzerland
|
|
|
600,970
|
(9)
|
|
|
7.51
|
%
|
Name of Beneficial Owner
|
|
Common
Stock
Beneficially
Owned
|
|
|
Percent
(1)
|
|
Stephen
M. Brecher,
Director
|
|
|
52,500
|
(10)
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
Burtt
R. Ehrlich,
Director
|
|
|
222,805
|
(11)
|
|
|
2.82
|
%
|
|
|
|
|
|
|
|
|
|
Stuart
P. Greenspon,
Director
|
|
|
214,816
|
(12)
|
|
|
2.73
|
%
|
|
|
|
|
|
|
|
|
|
David
S. Hershberg,
Director
|
|
|
15,000
|
(13)
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
W.
Gray Hudkins,
Director,
President and Chief Executive Officer
|
|
|
418,529
|
(14)
|
|
|
5.12
|
%
|
|
|
|
|
|
|
|
|
|
Kathleen
P. Bloch,
Vice
President, Chief Operating Officer and Chief Financial
Officer
|
|
|
53,629
|
(15)
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
Directors
and executive officers as a group
(8
persons)
|
|
|
5,491,918
|
(16)
|
|
|
54.09
|
%
|
|
|
|
|
|
|
|
|
|
* Less than 1%
|
|
(1)
|
The
applicable percentage of beneficial ownership is based on 7,788,774 shares
of common stock outstanding as of April 28, 2009, plus, with respect to
particular persons, shares of common stock that may be acquired upon
exercise or conversion of warrants, options or rights which are currently
exercisable or exercisable within 60 days of the date of this filing on
Form 10K/A, including conversion of the Company’s outstanding 5%
convertible subordinated notes due December 7, 2011 (the
“Notes”).
|
|
|
(2)
|
Includes
1,491,856 shares presently issued and outstanding held by Langer Partners,
LLC, 475,000 shares presently issued and outstanding held by Kanders &
Company, Inc. (“Kanders & Company”) and 75,000 common shares presently
issued and outstanding held by Mr. Kanders; 515,000 shares acquirable upon
the exercise of options awarded to Mr. Kanders (91,667 of which are
subject to a lock-up agreement that expires April 1, 2010); 669,044 shares
acquirable upon conversion of $3,118,880 in principal amount of the Notes
held by Mr. Kanders as trustee for members of his family;
457,155 shares acquirable upon conversion of $2,131,120 in principal
amount of Notes held by Mr. Kanders individually or through related
entities; 15,000 shares acquirable under warrants held by Langer Partners,
LLC; and 100,000 shares acquirable upon exercise of options held by
Kanders & Company. Mr. Kanders, who is the Chairman of our Board of
Directors, is the sole voting member and sole manager of Langer Partners,
LLC, and the sole stockholder of Kanders & Company. Does not include
500,000 shares awarded to Mr. Kanders as a restricted stock award under
the Company’s 2005 Stock Incentive Plan (the “2005 Plan”), which award is
not presently vested and which is not expected to vest within 60 days
after the date hereof.
|
|
|
(3)
|
Includes
1,716,112 shares acquirable upon conversion of $8,000,000 in principal
amount of Notes held by Mr. Knott and related entities controlled by Mr.
Knott. Based on information in the Schedule 13G, as amended, filed on
February 14, 2007 by Mr. Knott and certain affiliates, Mr. Knott shares
voting power with respect to certain of such shares with an
affiliate.
|
|
|
(4)
|
Represents
1,072,570 shares acquirable upon conversion of $5,000,000 in principal
amount of Notes held by York Credit Opportunities Fund, LP. The
share ownership is based solely upon the Notes issued to York Credit
Opportunities Fund, L.P.
|
|
|
(5)
|
Represents
343,222 shares acquirable upon conversion of $1,600,000 in principal
amount of Notes held by Wynnefield Small Cap Value Offshore Fund, Ltd.,
214,514 shares acquirable upon conversion of $1,000,000 in principal
amount of Notes held by Wynnefield Partners Small Cap Value, LP, and
300,320 shares acquirable upon conversion of $1,400,000 in principal
amount of Notes held by Wynnefield Partners Small Cap Value LP I
(collectively, the “Wynnefield Entities”). Messrs. Nelson Obus
and Joshua Landes are the co-managing members of these three funds or the
companies that own these funds and have the shared power to vote and
dispose of the shares of our common stock issuable upon conversion of the
Notes owned by the Wynnefield Entities. The share ownership is based
solely upon Notes issued to the Wynnefield Entities.
|
|
|
(6)
|
Includes
643,541 shares issuable upon conversion of $3,000,000 in principal amount
of Notes held by Ashford Capital Management, Inc. Based upon information
in the Schedule 13G, as amended, filed on February 17, 2009 by Ashford
Capital Management, Inc.
|
|
|
(7)
|
Includes
66,667 shares, but excludes 133,333 shares, acquirable by Mr. Asch under
options which vest in three equal annual consecutive tranches commencing
on January 23, 2009.
|
|
|
(8)
|
Based
upon information in Schedule 13G filed by Bank of America Corporation on
February 7, 2008.
|
|
|
(9)
|
Includes
214,514 shares acquirable upon conversion of $1,000,000 in principal
amount of Notes held by Atlas Capital, S.A.
|
|
|
(10)
|
Consists
of 52,500 shares acquirable under options awarded to Mr. Brecher. Does not
include 7,500 shares awarded to Mr. Brecher as a restricted stock award
under the 2005 Plan, which award is not presently vested and which is not
expected to vest within 60 days after the date hereof.
|
|
|
(11)
|
Includes
111,376 options granted to Mr. Ehrlich. Does not include 7,500 shares
awarded to Mr. Ehrlich as a restricted stock award under the 2005 Plan,
which award is not presently vested and which is not expected to vest
within 60 days after the date hereof.
|
|
|
(12)
|
Includes
52,500 shares acquirable upon exercise of options granted to Mr.
Greenspon, and 32,177 shares issuable upon conversion of a Note held by
Mr. Greenspon in the principal amount of $150,000. Does not include (i)
41,903 shares held by his wife, Ms. Camilla Trinchieri, as to which Mr.
Greenspon disclaims beneficial ownership, (ii) 10,726 shares issuable upon
conversion of a Note held by his wife as to which Mr. Greenspan disclaims
beneficial ownership, or (iii) 7,500 shares awarded to Mr. Greenspon as a
restricted stock award under the 2005 Plan, which award is not presently
vested and is not expected to vest within 60 days after the date
hereof.
|
|
|
(13)
|
Includes
15,000 shares acquirable upon exercise of options granted to Mr.
Hershberg.
|
|
|
(14)
|
Includes
337,500 shares acquirable upon exercise of options granted to Mr.
Hudkins. Of the shares acquirable under options held by Mr.
Hudkins, 62,500 shares are subject to a lock-up agreement which expires
with respect to 45,834 shares on December 31, 2009 and with respect to
16,666 shares on April 1, 2010. Does not include 275,000 shares awarded to
Mr. Hudkins as a restricted stock award under the 2005 Plan, which award
is not and is not expected to vest within 60 days after the date
hereof. Includes 53,629 shares issuable upon conversion of a
Note in the principal amount of $250,000 held by Mr.
Hudkins.
|
|
|
(15)
|
Includes
53,629 shares issuable upon conversion of a Note in the principal amount
of $250,000 held by Ms. Bloch. Does not include a restricted
stock award of 75,000 shares of common stock granted to Ms. Bloch under
the Company’s 2007 Stock Incentive Plan, which will vest in full upon the
later to occur of (i) the Company’s achievement of trailing 12-month
EBITDA of $25,000,000, and (ii) the Company’s common stock having a
closing price of $15.00 for five trading days in any period of 10
consecutive trading days. The award would expire if it has not vested on
or before September 4, 2017, or if Ms. Bloch is no longer an employee of
the Company at the time of vesting. For a description of the definition of
EBITDA used in Ms. Bloch’s employment agreement, see “Employment
Agreements – Kathleen P. Bloch,” below.
|
|
|
(16)
|
Includes
2,477,548 shares acquirable upon exercise of stock options and warrants,
or conversion of Notes, held by such
persons.
|
Item
13. Certain Relationships and Related Transactions
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
Consulting Agreement with Kanders
& Company.
On November 12, 2004, the Company entered into
a consulting agreement (the “Consulting Agreement”) with Kanders & Company,
Inc., the sole stockholder of which is Warren B. Kanders, the Company’s Chairman
of the Board of Directors, and who is the sole manager and voting member of
Langer Partners, LLC (“Langer Partners”), the Company’s largest
stockholder. The Consulting Agreement provides that Kanders &
Company will act as the Company’s non-exclusive consultant to provide the
Company with strategic consulting and corporate development services for a term
of three years. Kanders & Company and Mr. Kanders are required to devote
only as much time to the Company’s business as they deem appropriate. Pursuant
to the Consulting Agreement, Kanders & Company is entitled to an annual fee
of $300,000 and may receive separate compensation for assistance, at the
Company’s request, with certain transactions or other matters to be determined
by the Board from time to time. During 2008, Kanders & Company
continued to render consulting services to the Company and the Company continued
to pay for such services in accordance with the terms of the expired Consulting
Agreement, as approved by the Board. The Company expects to negotiate a new
consulting agreement with Kanders & Company during 2009. The
Company has also agreed to provide Kanders & Company with indemnification
protection, which survives the termination of the Consulting Agreement for six
years, and extends to any actual or wrongfully attempted breach of duty,
neglect, error, or misstatement by Kanders & Company alleged by any
claimant.
5% Convertible Subordinated
Notes
. On December 8, 2006, the Company sold $28,880,000 of the
Company’s 5% Convertible Notes due December 7, 2011 (the “Notes”) in a private
placement. Warren B. Kanders, the Company’s Chairman of the Board of
Directors, purchased $2,000,000 of the Notes, and Stuart P. Greenspon, a
director of the Company, purchased $150,000 of the Notes. The number
of shares of common stock issuable on conversion of the Notes, as of December
31, 2008, is 6,195,165, subject to adjustment for stock splits, stock dividends
and certain issuances of common stock hereafter at prices less than the current
conversion price, and the conversion price as of such date was
$4.6617. During the year ended December 31, 2008, Mr. Kanders
purchased $3,250,000 of the Notes and W. Gray Hudkins, President and
Chief Executive Officer, and Kathleen P. Bloch, the Company’s Chief
Operating Officer and Chief Financial Officer, each purchased $250,000 of the
Notes from prior Note holders.
Lease
Agreement — Winooski, Vermont.
On January 23, 2007,
in connection with the acquisition by the Company of Twincraft, Inc.
(“Twincraft”) from four individuals, including Peter A. Asch, President of
Twincraft and one of the Company’s directors and a nominee for election as a
director, Twincraft entered into a lease agreement (the “Winooksi Lease”) with
Asch Partnership, a Vermont general partnership, the principals of which are the
father and uncle of Mr. Asch. Pursuant to the Winooski Lease, Twincraft leases
approximately 90,500 square feet of space in Winooski, Vermont, for use as a
manufacturing facility. The Winooski Lease runs for seven years, commencing
January 23, 2007 (the “Initial Term”) and is subject to an additional seven year
term at Twincraft’s option (the “Extended Term”). Base rent during year one of
the Initial Term was $362,000 per annum, is $452,500 in the lease year
commencing January 23, 2008, and remains $452,500 per annum for the remaining
five years of the Initial Term. Additionally, Twincraft has an option to
purchase the property covered by the Winooski Lease for $4,000,000 during the
third through seventh years of the Initial Term, and at fair market value during
the Extended Term. Twincraft is also responsible for payments to cover taxes and
operating expenses relating to the Winooksi Lease.
Lease Agreement — Essex,
Vermont.
On January 23, 2007, in connection with the
Twincraft acquisition, Twincraft entered into an amendment to its existing
sublease agreement dated October 1, 2003 (the “Essex Lease”) with Asch
Enterprises, LLC (“Asch Enterprises”), a Vermont limited liability company, the
principal of which is Mr. Asch. Pursuant to the Essex Lease, Twincraft leases
approximately 76,000 square feet in Essex, Vermont, for use as a warehouse
facility. The term of the Essex Lease expires on October 1, 2010. Base rent
during the term of the Essex Lease is $303,600 per annum. In the event Asch
Enterprises exercises its option under the prime lease to purchase the property
covered by the Essex Lease, Asch Enterprises will pay Twincraft 25% of the rent
paid by Asch Enterprises to the over-landlord of the Essex Lease subsequent to
the closing of the Twincraft acquisition. Twincraft is also responsible for
payments to cover taxes and operating expenses relating to the Essex
Lease.
Insurance Commissions and Advisory
Fees
. In connection with the Company’s provision of health
insurance and related employee benefits, the Company retained, on April 11,
2008, the advisory services of Krauter & Company, of New York, New York, an
insurance broker that employs Garrison Hudkins, who is a brother of W. Gray
Hudkins. For the year ending December 31, 2008, Krauter & Company earned
insurance brokerage commissions and advisory fees of approximately $29,830 out
of the insurance premiums paid by the Company with respect thereto. A portion of
such commissions and advisory fees may be directly or indirectly paid to
Garrison Hudkins. The Company believes the price and other terms of such
insurance coverage and the fees for advisory services are no less favorable than
could be obtained from an unrelated party.
Review of Transactions with Related
Persons.
The transactions described above involving Mr. Asch
was the result of arm’s length negotiations which were closed prior to his
becoming a director or a stockholder of the Company. The transaction with
respect to the Notes was a private placements of unregistered convertible debt
securities, and the rates and terms of the transactions were set by the Board of
Directors based on its estimates of the rates and other terms that would enable
the Company to raise the targeted amount of funds, and after arms-length
negotiations with certain purchasers of the Notes. The Board consulted with an
independent investment banker who acted as a placement agent in connection with
the private placements. Mr. Kanders purchased less than 7% of Notes. The
Consulting Agreement with Kanders & Company, was approved by the Board of
Directors immediately prior to Mr. Kanders’ joining the Board and was based upon
a review of compensation paid by other public companies for the kinds of
services to be rendered under the Consulting Agreement. The Board of Directors
has a general practice of requiring directors interested in a transaction not to
participate in deliberations or to vote upon transactions in which they have an
interest, and to be sure that transactions with directors, executive officers
and major shareholders are on terms that align the interests of the parties to
such agreements with the interests of the Stockholders.
Consulting Agreement between
W.
Gray Hudkins and
Kanders & Company.
Effective
January 1, 2009, W. Gray Hudkins, the Company’s President and Chief Executive
Officer and a director of the Company, entered into an agreement with Kanders
& Company, the sole stockholder of which is Warren B. Kanders, the Company’s
Chairman of the Board of Directors, and who is the sole manager and voting
member of Langer Partners, LLC, the Company’s largest stockholder, pursuant to
which Mr. Hudkins is entitled to receive annual compensation of $200,000 from
Kanders & Company in consideration of Mr. Hudkins providing certain
consulting services to Kanders & Company.
Item
14. Principal Accountant Fees and Services
PRINCIPAL
ACCOUNTANT FEES AND SERVICES
Aggregate
fees for professional services rendered for the Company by BDO Seidman, LLP for
the years ended December 31, 2008 and 2007 were:
|
|
2008
|
|
|
2007
|
|
Audit
Fees
|
|
$
|
297,000
|
|
|
$
|
548,158
|
|
Audit
Related Fees
|
|
|
67,812
|
|
|
|
154,791
|
|
Tax
Fees
|
|
|
89,205
|
|
|
|
61,015
|
|
Total
|
|
$
|
454,017
|
|
|
$
|
763,964
|
|
Audit
Fees
.
The
Audit Fees for the years ended December 31, 2008 and 2007, respectively, were
for professional services rendered for the audit of our consolidated financial
statements for such years, and for the review of our unaudited interim
consolidated financial statements included in our quarterly reports on Form 10-Q
for 2008 and 2007. In addition, Audit Fees for such years also include fees for
services rendered to us by BDO Seidman, LLP for statutory audits and review of
documents filed with the Commission.
Audit Related Fees.
The Audit Related Fees for the year ended December 31, 2008 were
related to the divestitures of various businesses during 2008. The
Audit Related Fees for the year ended December 31, 2007 were for accounting
services related to the allocation of purchase price and review of the
pro forma
financial
information of businesses acquired in 2007.
Tax Fees.
Tax
Fees as of the years ended December 31, 2008 and 2007 were for services related
to tax compliance, including the preparation of tax returns and claims for
refund, tax planning and advice, including assistance with and representation in
tax audits and appeals, and advice related to asset disposals and mergers and
acquisitions.
All Other Fees.
There were no other fees incurred for the years ended December 31,
2008 and 2007.
Auditor Independence.
The Audit Committee has considered the non-audit services provided
by BDO Seidman, LLP and determined that the provision of such services had no
effect on BDO Seidman, LLP’s independence from the Company.
Audit Committee Pre-Approval Policy
and Procedures.
The Audit Committee must review and
pre-approve all audit and non-audit services provided by BDO Seidman, LLP, our
independent registered public accounting firm, and has adopted a Pre-approval
Policy which requires all audit and non-audit services to be approved by the
Audit Committee before services are rendered. In conducting reviews of audit and
non-audit services, the Audit Committee will determine whether the provision of
such services would impair the accountants’ independence. The Audit Committee
will only pre-approve services which it believes will not impair our
accountants’ independence. The term of any pre-approval is twelve months from
the date of pre-approval, unless the Audit Committee specifically provides for a
different period. Any proposed services exceeding pre-approved fee ranges or
limits must be specifically pre-approved by the Audit Committee.
Each
pre-approval request shall be accompanied by detailed back-up documentation
regarding the specific services to be provided. The pre-approval request shall
identify whether the proposed services was initially recommended by the auditor.
Each pre-approval request for any non-audit service must be accompanied by a
statement of the accountants (which may be in writing or given orally to the
Audit Committee) as to whether, in the accountants’ view, the request or
application is consistent with the Commission’s rules on auditor
independence.
For the
fiscal years ended December 31, 2008 and 2007, the Audit Committee has not
waived the pre-approval requirement for any services rendered by BDO Seidman,
LLP.
PART IV
Item 15. Exhibits and Financial
Statement Schedules
2. Exhibits
Exhibit
No.
|
|
Description of
Exhibit
|
3.1
|
|
Agreement and Plan of Merger dated
as of May 15, 2002, between Langer, Inc., a New York corporation, and
Langer, Inc., a Delaware corporation (the surviving corporation),
incorporated herein by reference to Appendix A of our Definitive Proxy
Statement for the Annual Meeting of Stockholders held on June 27, 2002,
filed with the Securities and Exchange Commission on May 31,
2002.
|
|
|
|
3.2
|
|
Certificate of Incorporation,
incorporated herein by reference to Appendix B of our Definitive Proxy
Statement for the Annual Meeting of Stockholders held on June 27, 2002,
filed with the Securities and Exchange Commission on May 31,
2002.
|
|
|
|
3.3
|
|
By-laws, incorporated herein by
reference to Appendix C of our Definitive Proxy Statement for the Annual
Meeting of Stockholders held on June 27, 2002, filed with the Securities
and Exchange Commission on May 31, 2002.
|
|
|
|
4.1
|
|
Specimen of Common Stock
Certificate, incorporated herein by reference to our Registration
Statement of Form S-1 (File No. 2- 87183).
|
|
|
|
10.1†+
|
|
Consulting Agreement between
Langer, Inc. and Kanders & Company, Inc., dated November 12,
2004.
|
|
|
|
10.2+
|
|
Option Agreement between Langer,
Inc. and Kanders & Company, Inc., dated February 13, 2001,
incorporated herein by reference to Exhibit (d)(1)(G) to the Schedule TO
(File Number 005-36032).
|
|
|
|
10.3
|
|
Registration Rights Agreement
between Langer, Inc. and Kanders & Company, Inc., dated February 13,
2001, incorporated herein by reference to Exhibit (d)(1)(I) to the
Schedule TO (File Number 005-36032).
|
|
|
|
10.4
|
|
Indemnification Agreement between
Langer, Inc. and Kanders & Company, Inc., dated February 13, 2001,
incorporated herein by reference to Exhibit (d)(1)(J) to the Schedule TO
(File Number 005-36032).
|
|
|
|
10.5+
|
|
The Company’s 2001 Stock Incentive
Plan incorporated herein by reference to Exhibit 10.18 of our Annual
Report on Form 10-K for the fiscal year ended December 31,
2001.
|
|
|
|
10.6
|
|
Langer Biomechanics Group
Retirement Plan, restated as of July 20, 1979 incorporated by reference to
our Registration Statement of Form S-1 (File No.
2-87183).
|
|
|
|
10.7
|
|
Agreement, dated March 26, 1992,
and effective as of March 1, 1992, relating to our 401(k) Tax Deferred
Savings Plan, incorporated by reference to our Form 10-K for the fiscal
year ended February 29, 1992.
|
|
|
|
10.8
|
|
Registration Rights Agreement,
dated May 6, 2002, among Langer, Inc., Benefoot, Inc., Benefoot
Professional Products, Inc., and Dr. Sheldon Langer, incorporated herein
by reference to Exhibit 10.1 of our Current Report on Form 8-K, filed with
the Securities and Exchange Commission on May 13,
2002.
|
Exhibit
No.
|
|
Description of
Exhibit
|
10.9
|
|
Stock Purchase Agreement, dated as
of September 22, 2004, by and among Langer, Inc., LRC North America, Inc.,
SSL Holdings, Inc., and Silipos, Inc., incorporated herein by reference to
Exhibit 2.1 of our Current Report on Form 8-K filed with the Securities
and Exchange Commission on October 6, 2004.
|
|
|
|
10.10
|
|
Note and Warrant Purchase
Agreement, dated September 30, 2004, by and among Langer, Inc., and the
investors named therein, incorporated herein by reference to Exhibit 4.1
of our Current Report on Form 8-K filed with the Securities and Exchange
Commission on October 6, 2004.
|
|
|
|
10.11
|
|
Form of Warrant to purchase shares
of the common stock of Langer, Inc., incorporated herein by reference to
Exhibit 4.3 of our Current Report on Form 8-K filed with the Securities
and Exchange Commission on October 6, 2004.
|
|
|
|
10.12†+
|
|
Stock Option Agreement between
Langer, Inc. and W. Gray Hudkins, dated November 12,
2004.
|
|
|
|
10.13†+
|
|
Restricted Stock Agreement between
Langer, Inc. and W. Gray Hudkins, dated November 12,
2004.
|
|
|
|
10.14†
|
|
Stock Option Agreement between
Langer, Inc. and Kanders & Company, Inc. dated November 12,
2004.
|
|
|
|
10.15†
|
|
Patent License Agreement,
including amendment no. 1 thereto, between Applied Elastomerics, Inc. and
SSL Americas, Inc., dated effective November 30, 2001, incorporated herein
by reference to Exhibit 10.41 of our Annual Report on Form 10-K for the
year ended December 31, 2004, filed with the Securities and Exchange
Commission on March 30, 2005.
|
|
|
|
10.16
|
|
Assignment and Assumption
Agreement, dated as of September 30, 2004, by and between SSL Americas,
Inc. and Silipos, Inc., incorporated herein by reference to Exhibit 10.42
of our Annual Report on Form 10-K for the year ended December 31, 2004,
filed with the Securities and Exchange Commission on March 30,
2005.
|
|
|
|
10.17
|
|
License Agreement, dated as of
January 1, 1997, by and between Silipos, Inc. and Gerald P. Zook,
incorporated herein by reference to Exhibit 10.43 of our Annual Report on
Form 10-K for the year ended December 31, 2004, filed with the Securities
and Exchange Commission on March 30, 2005.
|
|
|
|
10.18
|
|
Copy of Sublease between Calamar
Enterprises, Inc. and Silipos, Inc., dated May 21, 1998; First Amendment
to Sublease between Calamar Enterprises, Inc. and Silipos, Inc., dated
July 15, 1998; and Second Amendment to Sublease between Calamar
Enterprises, Inc. and Silipos, Inc., dated March 1, 1999, incorporated
herein by reference to Exhibit 10.45 of our Annual Report on Form 10-K for
the year ended December 31, 2004, filed with the Securities and Exchange
Commission on March 30, 2005.
|
|
|
|
10.19
|
|
Lease dated December 19, 2005,
between the Company (as tenant) and 41 Madison, L.P., of office space at
41 Madison Avenue, New York, N.Y., incorporated herein by reference to
Exhibit 10.1 of the Company’s Current Report on Form 8-K filed on December
22, 2005.
|
|
|
|
10.20
+
|
|
Form of Amendment to Stock Option
Agreement, incorporated herein by reference to Exhibit 10.1 of the
Company’s Current Report on Form 8-K filed on December 27,
2005.
|
|
|
|
10.21 +
|
|
Form of Amendment to Restricted
Stock Award Agreement, incorporated herein by reference to Exhibit 10.2 of
the Company’s Current Report on Form 8-K filed on December 27,
2005.
|
Exhibit
No.
|
|
Description of
Exhibit
|
10.22
|
|
Form of Note Purchase Agreement
dated as of December 7, 2006, among the Company and the purchasers of the
Company’s 5% Convertible Notes Due December 7, 2011, including letter
amendment dated as of December 7, 2006, without exhibits, incorporated
herein by reference to Exhibit 10.1 of the Company’s Current Report on
Form 8-K filed on December 14, 2006.
|
|
|
|
10.23
|
|
Form of the Company’s 5%
Convertible Note Due December 7, 2011, incorporated herein by reference to
Exhibit 10.2 of the Company’s Current Report on Form 8-K filed on December
14, 2006.
|
|
|
|
10.24
|
|
Registration Rights Agreement
dated as of January 23, 2007, by and between the Company, Peter A. Asch,
Richard D. Asch, A. Lawrence Litke, and Joseph M. Candido, incorporated
herein by reference to Exhibit 10.1 of the Company’s Current Report on
Form 8-K filed on January 29, 2007.
|
|
|
|
10.25 +
|
|
Employment Agreement dated January
23, 2007, between Twincraft, Inc. and Peter A. Asch, incorporated herein
by reference to Exhibit 10.2 of the Company’s Current Report on Form 8-K
filed on January 29, 2007.
|
|
|
|
10.26+
|
|
Employment Agreement dated January
23, 2007, between Twincraft, Inc. and A. Lawrence Litke, incorporated
herein by reference to Exhibit 10.3 of the Company’s Current Report on
Form 8-K filed on January 29, 2007.
|
|
|
|
10.27+
|
|
Employment Agreement dated January
23, 2007, between Twincraft, Inc. and Richard Asch, incorporated herein by
reference to Exhibit 10.4 of the Company’s Current Report on Form 8-K
filed on January 29, 2007.
|
|
|
|
10.28+
|
|
Consulting Agreement dated January
23, 2007, between Twincraft, Inc. and Fifth Element LLC, incorporated
herein by reference to Exhibit 10.5 to the Company’s Current Report on
Form 8-K filed on January 29, 2007.
|
|
|
|
10.29
|
|
Lease Agreement dated January 23,
2007, between Twincraft, Inc. and Asch Partnership, incorporated herein by
reference to Exhibit 10.6 to the Company’s Current Report on Form 8-K
filed on January 29, 2007.
|
|
|
|
10.30
|
|
Lease dated October 1, 2003 and as
amended January 23, 2006, between Twincraft, Inc. and Asch Enterprises,
LLC, incorporated herein by reference to Exhibit 10.7 to the Company’s
Current Report on Form 8-K filed on January 29,
2007.
|
|
|
|
10.31
|
|
Stock Purchase Agreement dated as
of November 14, 2006, by and among Langer, Inc., Peter A. Asch, Richard D.
Asch, A. Lawrence Litke, and Joseph M. Candido, incorporated herein by
reference to Exhibit 10.8 to the Company’s Current Report on Form 8-K
filed on January 29, 2007.
|
|
|
|
10.32
|
|
Loan and Security Agreement dated
as of May 11, 2007, between Wachovia Bank, National Association, and
Langer, Inc., Silipos, Inc., Regal Medical, Inc., and Twincraft, Inc.,
incorporated herein by reference to Exhibit 10.1 to the Company’s Current
Report on Form 8-K filed on May 15, 2007.
|
|
|
|
10.33 +
|
|
Employment Agreement dated as of
July 26, 2007, between the Company and Kathleen P. Bloch, incorporated
herein by reference to Exhibit 10.1 to the Company’s Current Report on
Form 8-K filed on July 27, 2007.
|
|
|
|
Exhibit
No.
|
|
Description of
Exhibit
|
10.34 +
|
|
Employment Agreement dated as of
October 1, 2007, between the Company and W. Gray Hudkins, incorporated
herein by reference to Exhibit 10.1 to the Company’s Current Report on
Form 8-K filed on October 12, 2007.
|
|
|
|
10.35
|
|
Amendment dated June 21, 2007, to
Loan and Security Agreement dated as of May 11, 2007, between Wachovia
Bank, National Association, and Langer, Inc., Silipos, Inc., Regal
Medical, Inc., and Twincraft, Inc., incorporated herein by
reference to Exhibit 10.63 to our Annual Report on Form 10-K for the year
ended December 31, 2007, filed on March 31,
2008.
|
|
|
|
10.36
|
|
Amendment No. 2 dated as of
October 1, 2007, to Loan and Security Agreement dated as of May 11, 2007,
between Wachovia Bank, N.A., and Langer, Inc., Silipos, Inc., Regal
Medical, Inc., and Twincraft, Inc., incorporated herein by reference to
Exhibit 10.64 to our Annual Report on Form 10-K for the year ended
December 31, 2007, filed on March 31, 2008.
|
|
|
|
10.37
|
|
Form of Indemnification Agreement
between the Company and its executive officers and directors, incorporated
herein by reference to Exhibit 10.65 to our Annual Report on Form 10-K for
the year ended December 31, 2007, filed on March 31,
2008.
|
|
|
|
10.38
|
|
Amendment No. 3 dated as of April
16, 2008, to Loan and Security Agreement dated as of May 11, 2007, between
Wachovia Bank, N.A., and Langer, Inc., Silipos, Inc., Regal Medical, Inc.,
and Twincraft, Inc., incorporated herein by reference to Exhibit 10.1 to
our Current Report on Form 8-K, filed on April 18,
2008.
|
|
|
|
10.39
|
|
Form of Sublease between the
Langer, Inc. as undertenant and Smile Train, Inc., as overtenant with
respect to premises at 245 Fifth Avenue, New York, N.Y., incorporated
herein by reference to Exhibit 10.1 to our Current Report on Form 8-K,
filed on May 7, 2008.
|
|
|
|
10.40
|
|
Sale Agreement dated June 11,
2008, among Langer, Inc., as seller and Messrs. John Shero, Carl David
Ray, and Ryan Hodge, as purchasers with respect to the outstanding
membership interests in Regal Medical Supply, LLC., incorporated herein by
reference to Exhibit 2.1 to our Current Report on Form 8-K, filed on June
17, 2008.
|
|
|
|
10.41
|
|
Share Purchase Agreement, dated as
of July 31, 2008, by and among Langer Canada, Inc. and 9199-9200 Quebec,
Inc., incorporated herein by reference to Exhibit 2.1 to our Current
Report on Form 8-K, filed on August
1, 2008.
|
|
|
|
10.42
|
|
Amendment No. 4 dated October 24,
2008, to Loan and Security Agreement dated May 11, 2007, between Wachovia
Bank, National Association, Langer, Inc., Silipos, Inc.,
Regal Medical, Inc., and Twincraft, Inc., incorporated herein
by reference to Exhibit 10.1 to our Current Report on Form 8-K, filed on
October 30, 2008.
|
|
|
|
10.43
|
|
Asset Purchase Agreement dated as
October 24, 2008, by and between Langer, Inc., and Langer Acquisition
Corp., incorporated herein by reference to Exhibit 2.1 to our
Current Report on Form 8-K, filed on October 30,
2008.
|
|
|
|
21.1
|
|
Subsidiaries of the
Registrant
,
incorporated herein by reference to Exhibit 21.1 to our Annual Report on
Form 10-K for the year ended December 31, 2008 filed on March 24,
2009.
|
|
|
|
23.1
|
|
Consent of BDO Seidman,
LLP
, incorporated
herein by reference to Exhibit 23.1 to our Annual Report on Form 10-K for
the year ended December 31, 2008 filed on March 24,
2009.
|
|
|
|
Exhibit
No.
|
|
Description of
Exhibit
|
31.1
|
|
Rule 13a-14(a)/15d-14(a)
Certification by Principal Executive Officer.
|
|
|
|
31.2
|
|
Rule 13a-14(a)/15d-14(a)
Certification by Principal Financial Officer.
|
|
|
|
32.1
|
|
Section 1350 Certification by
Principal Executive Officer.
|
|
|
|
32.2
|
|
Section 1350 Certification by
Principal Financial Officer.
|
|
|
|
|
†
|
Incorporated herein by reference
to our Registration Statement on Form S-1 (File No.
333-120718
) filed with the Securities and
Exchange Commission on November 23,
2004.
|
|
+
|
This exhibit represents a
management contract or compensation
plan.
|
SIGNATURES
Pursuant
to the requirements of Section l3 or l5(d) of the Securities Exchange Act of
l934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
|
|
|
LANGER,
INC.
|
|
|
|
|
Date:
April 30, 2009
|
|
By:
|
/s/
W. GRAY HUDKINS
|
|
|
|
W.
Gray Hudkins
|
|
|
|
President
and Chief Executive Officer
(Principal
Executive Officer)
|
|
|
|
|
Date:
April 30, 2009
|
|
By:
|
/s/
KATHLEEN P. BLOCH
|
|
|
|
Kathleen
P. Bloch
|
|
|
|
Vice
President and Chief Financial Officer
(Principal
Financial Officer)
|
Pursuant
to the requirements of the Securities Exchange Act of l934, this report has been
signed below by the following persons on behalf of the registrant and in the
capacities and on the dates indicated.
Date:
April 30, 2009
|
|
By:
|
/s/
WARREN B. KANDERS
|
|
|
|
Warren
B. Kanders
|
|
|
|
Director
|
|
|
|
|
Date:
April 30 , 2009
|
|
By:
|
/s/
PETER A. ASCH
|
|
|
|
Peter
A. Asch
|
|
|
|
Director
|
|
|
|
|
Date:
April 30, 2009
|
|
By:
|
/s/
STEPHEN M. BRECHER
|
|
|
|
Stephen
M. Brecher
|
|
|
|
Director
|
|
|
|
|
Date:
April 30 , 2009
|
|
By:
|
/s/
BURTT R. EHRLICH
|
|
|
|
Burtt
R. Ehrlich
|
|
|
|
Director
|
|
|
|
|
Date:
April 30, 2009
|
|
By:
|
/s/
STUART P. GREENSPON
|
|
|
|
Stuart
P. Greenspon
|
|
|
|
Director
|
|
|
|
|
Date:
April 30, 2009
|
|
By:
|
/s/
DAVID S. HERSHBERG
|
|
|
|
David
S. Hershberg
|
|
|
|
Director
|
|
|
|
|
Date:
April 30, 2009
|
|
By:
|
/s/
W. GRAY HUDKINS
|
|
|
|
W.
Gray Hudkins
|
|
|
|
Director
|
EXHIBIT LIST
Exhibit
No.
|
|
Description of
Exhibit
|
|
|
|
31.1
|
|
Certification of Principal
Executive Officer
|
|
|
|
31.2
|
|
Certification of Principal
Financial Officer
|
|
|
|
32.1
|
|
Certification of Principal
Executive Officer Pursuant to 18 U.S.C. Section 1350, as adopted Pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002
|
|
|
|
32.2
|
|
Certification of Principal
Financial Officer Pursuant to 18 U.S.C. Section 1350, as adopted Pursuant
to Section 906 of the Sarbanes-Oxley Act of
2002
|
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