- Securities Registration: Employee Benefit Plan (S-8)
06 November 2009 - 3:21PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on November 6, 2009
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
STR Holdings, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware
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27-1023344
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(State or Other Jurisdiction of Incorporation or
Organization)
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(I.R.S. Employer Identification No.)
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10
Water Street
Enfield, CT 06082
(Address of Principal Executive Offices, Including Zip Code)
STR Holdings, Inc.
2009 Equity Incentive Plan
(Full Title of Plan)
Barry A.
Morris
Executive Vice President and Chief Financial
Officer
10 Water Street
Enfield, CT 06082
(860) 749-8371
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
With a
copy to:
Alexander D. Lynch, Esq.
Weil, Gotshal &
Manges LLP
767 Fifth Avenue
New York, NY 10153
(212) 310-8000
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, or a non-accelerated filer. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2
of the Exchange Act (check one):
Large accelerated filer
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Accelerated filer
£
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Non-accelerated filer
x
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Smaller reporting company
£
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(Do not check if a smaller
reporting company)
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CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered
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Amount to
be Registered (1)
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Proposed
Maximum Offering
Price Per Share (2)
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Proposed
Maximum Aggregate Offering Price (2)
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Amount of
Registration Fee
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Common Stock, par value $0.01 per share
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4,750,000 shares
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$
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10.00
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$
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47,500,000
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$
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2,650.50
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(1)
The securities
to be registered are issuable under the STR Holdings, Inc. 2009 Equity
Incentive Plan. Pursuant to Rule 416(a) of the Securities Act of
1933, as amended (the Securities Act), this Registration Statement shall
cover such additional securities as may be offered or issued to prevent dilution
resulting from stock splits, stock dividends or similar transactions.
(2)
Estimated solely
for purposes of calculating the registration fee pursuant to Rule 457(a) of
the Securities Act.
PART I
SECTION 10(a) PROSPECTUS
The information specified in Items
1 and 2 of Part I of this Registration Statement on Form S-8 is
omitted from this filing in accordance with the provisions of Rule 428
under the Securities Act and the introductory note to Part I of the
Registration Statement. The documents containing the information specified in Part I
will be delivered to the participants in the Plan covered by this Registration
Statement as required by Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3.
Incorporation
of Documents by Reference.
STR Holdings, Inc. (the Registrant) hereby
incorporates by reference into this Registration Statement the following
documents previously filed with the Securities and Exchange Commission:
·
The Registrants prospectus contained in the
Registrants Registration Statement on Form S-1 (Reg. No.
333-162376
), in which there is set forth the
Registrants audited financial statements for the year ended December 31,
2008;
·
The Registrants prospectus contained in the
Registrants Registration Statement on Form S-1 (Reg. No.
333-162376
), in which there is set forth the
audited balance sheet of STR Holdings (New) LLC as of September 30, 2009;
and
·
The description of the Registrants Common Stock contained
in the Registrants Registration Statement on Form S-1 (Reg. No.
333-162376
), which description is incorporated by
reference into the Form 8-A filed with the Securities and Exchange
Commission on November 5, 2009, pursuant to the Securities Exchange Act of
1934, as amended (the Exchange Act), and any amendment or report filed for
the purpose of further updating such description.
All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such documents.
Item 4.
Description
of Securities.
Not applicable.
Item 5.
Interests
of Named Experts and Counsel.
None.
Item 6.
Indemnification
of Directors and Officers.
Section 145
of the Delaware General Corporation Law, or DGCL, provides that a corporation
may indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise), against
expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Section 145 further
provides that a corporation similarly may indemnify any such person serving in
any such capacity who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation or is or
was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys fees) actually and reasonably incurred in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the Delaware Court of Chancery or such other court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all of the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Delaware Court of Chancery or such other court shall deem proper.
The Registrants
bylaws authorize the indemnification of its officers and directors, consistent
with Section 145 of the DGCL, as amended. The Registrant intends to enter
into indemnification agreements with each of its directors and executive
officers. These agreements, among other things, will require the Registrant to
indemnify each director and executive officer to the fullest extent permitted
by Delaware law, including indemnification of expenses such as attorneys fees,
judgments, fines and settlement amounts incurred by the director or executive
officer in any action or proceeding, including any action or proceeding by or
in right of us, arising out of the persons services as a director or executive
officer.
Reference is made
to Section 102(b)(7) of the DGCL, which enables a corporation in its
original certificate of incorporation or an amendment thereto to eliminate or
limit the personal liability of a director for violations of the directors
fiduciary duty, except (i) for any breach of the directors duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) pursuant to Section 174 of the DGCL, which
provides for liability of directors for unlawful payments of dividends of
unlawful stock purchase or redemptions or (iv) for any transaction from
which a director derived an improper personal benefit.
The Registrant
expects to maintain standard policies of insurance that provide coverage (i) to
its directors and officers against loss arising from claims made by reason of
breach of duty or other wrongful act and (ii) to the Registrant with
respect to indemnification payments that it may make to such directors and
officers.
Item 7.
Exemption
from Registration Claimed.
Not
applicable.
Item 8.
Exhibits.
Exhibit No.
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Description
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4.1
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Form of
STR Holdings, Inc. 2009 Equity Incentive Plan (incorporated by reference
to Exhibit 10.2 to the Registrants Registration Statement on
Form S-1 (Reg. No. 333-162376)).
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5.1
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Legal
Opinion of Weil, Gotshal & Manges LLP (filed herewith).
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23.1
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Consent
of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm
(filed herewith).
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23.2
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Consent
of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm
(filed herewith).
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23.3
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Consent
of Weil, Gotshal & Manges LLP (included in
Exhibit No. 5.1).
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24.1
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Power
of Attorney of Dennis L. Jilot.
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24.2
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Power
of Attorney of Barry A. Morris.
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24.3
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Power
of Attorney of Joseph C. Radziewicz.
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24.4
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Power
of Attorney of Scott S. Brown.
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24.5
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Power
of Attorney of John A. Janitz.
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24.6
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Power
of Attorney of Andrew M. Leitch.
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24.7
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Power
of Attorney of Jason L. Metakis.
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24.8
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Power
of Attorney of Dominick J. Schiano.
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24.9
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Power
of Attorney of Susan C. Schnabel.
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24.10
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Power
of Attorney of Ryan M. Sprott.
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Item 9. Undertakings.
(a)
The undersigned Registrant hereby undertakes:
(1)
to file, during
any period in which offers or sales are being made, a post-effective amendment
to this Registration Statement;
(i)
to include any
prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii)
to reflect in
the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information in the registration statement.
Notwithstanding the foregoing, any increase or decrease in the 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 Securities and Exchange Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than 20%
change in the maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration statement; and
(iii)
to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement;
(a)
provided
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however
,
that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the
registration statement is on Form S-8 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the
Securities and Exchange
Commission by the Company
pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the registration statement.
(2)
That, for the
purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona
fide
offering thereof.
(3)
To remove from
registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
(b)
The undersigned
Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Registrants annual report
pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial
bona
fide
offering
thereof.
(c)
Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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
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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 of 1933 and will be governed by the final
adjudication of such issue.
4
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Enfield, State of
Connecticut, on this 6th day of November, 2009.
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STR HOLDINGS, INC.
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By:
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/s/ DENNIS L. JILOT
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Name:
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Dennis L. Jilot
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Title:
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President and Chief Executive Officer
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Pursuant to the
requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities indicated as this 6th
day of November, 2009.
Signature
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Title
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Chairman, President and
Chief Executive Officer
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/s/ DENNIS L. JILOT
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(Principal Executive
Officer)
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Dennis L. Jilot
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Executive Vice President
and Chief Financial Officer
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/s/ BARRY A. MORRIS
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(Principal Financial
Officer)
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Barry A. Morris
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Controller and Principal
Accounting Officer
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/s/
JOSEPH C. RADZIEWICZ
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(Principal Accounting
Officer)
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Joseph C. Radziewicz
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/s/ SCOTT S. BROWN
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Director
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Scott S. Brown
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/s/ JOHN A. JANITZ
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Director
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John A. Janitz
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/s/ ANDREW M. LEITCH
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Director
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Andrew M. Leitch
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/s/ JASON L. METAKIS
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Director
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Jason L. Metakis
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/s/ DOMINICK J. SCHIANO
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Director
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Dominick J. Schiano
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/s/ SUSAN C. SCHNABEL
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Director
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Susan C. Schnabel
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/s/ RYAN M. SPROTT
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Director
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Ryan M. Sprott
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5
EXHIBIT INDEX
No.
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Description
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4.1
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Form of STR Holdings, Inc. 2009 Equity
Incentive Plan (incorporated by reference to Exhibit 10.2 to the
Registrants Registration Statement on Form S-1 (Reg.
No. 333-162376)).
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5.1
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Legal Opinion of Weil, Gotshal & Manges LLP
(filed herewith).
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23.1
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Consent of PricewaterhouseCoopers LLP, Independent
Registered Public Accounting Firm (filed herewith).
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23.2
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Consent of PricewaterhouseCoopers LLP, Independent
Registered Public Accounting Firm (filed herewith).
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23.3
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Consent of Weil, Gotshal & Manges LLP
(included in Exhibit No. 5.1).
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24.1
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Power of Attorney of Dennis L. Jilot.
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24.2
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Power of Attorney of Barry A. Morris.
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24.3
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Power of Attorney of Joseph C. Radziewicz.
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24.4
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Power of Attorney of Scott S. Brown.
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24.5
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Power of Attorney of John A. Janitz.
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24.6
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Power of Attorney of Andrew M. Leitch.
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24.7
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Power of Attorney of Jason L. Metakis.
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24.8
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Power of Attorney of Dominick J. Schiano.
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24.9
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Power of Attorney of Susan C. Schnabel.
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24.10
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Power of Attorney of Ryan M. Sprott.
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