PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation by Reference
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The following documents are incorporated herein by reference:
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(a)
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The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the SEC on March 15, 2018 (the “Annual Report”)
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(b)
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The Company’s Current Reports on Form 8-K filed with the SEC on February 27, 2018, May 1, 2018, June 5, 2018, June 14, 2018, July 11, 2018, July 31, 2018 and August 3, 2018.
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(c)
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The Company’s Current Reports on Form 10-Q for the fiscal quarter ended March 31, 2018, filed with the SEC on May 8, 2018 and
Form 10-Q for the fiscal quarter ended June 30, 2018, filed with the SEC on August 7, 2018
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(d)
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The description of the Company’s Common Stock set forth in the Company’s Registration Statement on Form 8-A, as amended (file no. 00113792) filed on June 1, 1995, including any subsequent amendment or report filed for the purpose of updating that description.
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In addition, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents.
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contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4.
Description of Securities
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Not applicable.
Item 5.
Interests of Named Experts and Counsel
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None.
Item 6.
Indemnification of Directors and Officers
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Under Section 145 of the Delaware General Corporation Law, or the DGCL, a corporation may indemnify its directors, officers, employees and agents and its former directors, officers, employees and agents and those who serve, at the corporation's request, in such capacities with another enterprise, against expenses, including attorneys' fees, as well as judgments, fines and settlements in nonderivative lawsuits, actually and reasonably incurred in connection with the defense of any action, suit or proceeding in which they or any of them were or are made parties or are threatened to be made parties by reason of their serving or having served in such capacity. The DGCL provides, however, that such person must have acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the best interests of the corporation and, in the case of a criminal action, such person must have had no reasonable cause to believe his or her conduct was unlawful. In addition, the DGCL does not permit indemnification in an action or suit by or in the right of the corporation, where such person has been adjudged liable to the corporation, unless, and only to the extent that, a court determines that such person fairly and reasonably is entitled to indemnity for costs the court deems proper in light of liability adjudication. Indemnity is mandatory to the extent a claim, issue or matter has been successfully defended. Under the Registrant’s Certificate of Incorporation, as amended, the Registrant is required to indemnify its directors and officers to the fullest extent permitted by Delaware law.
The Company currently maintains officers’ and directors’ liability insurance with a policy limit of $20,000,000 insuring its officers and directors against certain liabilities and expenses incurred by them in their capacities as such, and insuring the Company under certain circumstances, in the event that indemnification payments are made by the Company to such officers and directors.
Item 7.
Exemption from Registration Claimed
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Not applicable.
Item 8.
Exhibits.
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Exhibit Number
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Description:
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4.1
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Certificate of Incorporation of Registrant (incorporated herein by reference to Exhibit 3.1 to Registrant’s Registration Statement on Form S-1) (Registration No. 33-92052)
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4.2
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Certificate of Amendment of Certificate of Incorporation of the Company (incorporated by reference to the Company’s report on Form 8-K dated May 18, 1999)
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4.3
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Registrant’s 2018 Employee Stock Purchase Plan
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5.1
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Opinion of Kramer Levin Naftalis & Frankel LLP
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23.1
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Consent of Counsel to be named in the Registration Statement (reference is made to Exhibit 5.1 to this Registration Statement which contains a copy of this Consent).
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23.2
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Consent of Ernst & Young LLP
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24
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Power of Attorney (see signature page)
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Item 9.
Undertakings
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1)
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The undersigned Registrant hereby undertakes:
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a)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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ii)
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To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and,
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iii)
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To include any material information with respect to the Plan not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
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provided
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however
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b)
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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.
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c)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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2)
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That, for the purpose of determining liability of a Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, each undersigned Registrant undertakes that in a primary offering of securities of an undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(a)
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Any preliminary prospectus or prospectus of an undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
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(b)
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Any free writing prospectus relating to the offering prepared by or on behalf of an undersigned Registrant or used or referred to by an undersigned Registrant;
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(c)
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The portion of any other free writing prospectus relating to the offering containing material information about an undersigned Registrant or its securities provided by or on behalf of an undersigned Registrant; and
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(d)
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Any other communication that is an offer in the offering made by an undersigned Registrant to the purchaser.
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3)
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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.
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4)
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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.
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POWER OF ATTORNEY AND SIGNATURES
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Eric Lerner, with full power of substitution and full power to act, his true and lawful attorney-in-fact and agent to act for him in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, any and all registration statements filed pursuant to Rule 462(b) of the Securities Act of 1933 (including post-effective amendments) to register additional securities and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in order to effectuate the same as fully, to all intents and purposes, as they or he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Richard Leeds
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Executive Chairman and Director
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August 9, 2018
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Richard Leeds
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/s/ Bruce Leeds
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Vice Chairman and Director
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August 9, 2018
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Bruce Leeds
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/s/ Robert Leeds
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Vice Chairman and Director
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August 9, 2018
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Robert Leeds
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/s/ Lawrence Reinhold
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President and Chief Executive Officer
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August 9, 2018
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Lawrence P. Reinhold
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and Director
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(Principal Executive Officer)
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/s/ Thomas Clark
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Vice President and Chief Financial Officer
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August 9, 2018
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Thomas Clark
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(Principal Financial Officer)
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/s/ Thomas Axmacher
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Vice President and Controller
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August 9, 2018
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Thomas Axmacher
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(Principal Accounting Officer)
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/s/ Robert D. Rosenthal
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Director
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August 9, 2018
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Robert D. Rosenthal
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/s/ Barry Litwin
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Director
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August 9, 2018
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Barry Litwin
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/s/ Chad Lindbloom
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Director
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August 9, 2018
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Chad Lindbloom
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