As filed with the Securities and Exchange Commission on May 8,2009
Reg. No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Research Frontiers Incorporated
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction
incorporation or organization)
11-2103466
(I.R.S. Employer
Identification No.)
240 Crossways Park Drive, Woodbury, New York 11797-2033
(Address of Principal Executive Offices) (Zip Code)
2008 Equity Incentive Plan
(Full title of the Plan)
Robert L. Saxe, Chairman
Research Frontiers Incorporated
240 Crossways Park Drive
Woodbury, New York 11797
(Name and address of agent for service)
(516) 364-1902
(Telephone number, including area code, of agent for service)
With a copy to:
Joseph M. Harary
President and General Counsel
Research Frontiers Incorporated
240 Crossways Park Drive
Woodbury, New York 11797
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of "large accelerated filer," "accelerated
filer" and "smaller reporting company" in Rule 12b-2 of the Exchange
Act. (Check one):
Large accelerated filer [ ] Accelerated filer [ X ]
Non-accelerated filer [ ] Smaller reporting company [ ]
CALCULATION OF REGISTRATION FEE
Title of Proposed maximum Proposed maximum Amount of
securities Amount to offering price aggregate registra-
to be registered be registered(1) per Share offering price tion fee
Common Stock,$0.0001
par value per share 750,000 shares $3.18 $2,385,000 $133.08(1)
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933 based upon
the average of the high and low trading prices of the Company's Common
Stock as reported on the Nasdaq Stock Market on May 7, 2009 for
awards granted or available for future grant pursuant to the Plan and
registered hereunder. In accordance with Rule 416 under the
Securities Act of 1933, Common Stock offered hereby shall also be
deemed to cover an indeterminate number of securities to be offered
or issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions, and is deemed to include any
additional shares of Common Stock that may be issuable upon such
exercise as a result of the antidilution provisions thereof or as a
result of any adjustment to the exercise price.
Page 1 of 7 Pages
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The Section 10(a) prospectus for the Plan is not being filed with the
Securities and Exchange Commission (the "SEC") as part of this
registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents, which have been filed by Research
Frontiers Incorporated (the "Company") with the SEC, are incorporated by
reference in this registration statement as of their respective dates:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2008.
(b) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2009.
(c) the portions of the proxy statement dated April 30, 2009 for our
annual meeting of stockholders to be held on June 11, 2009 that
have been incorporated by reference into our report on Form 10-K
for the fiscal year ended December 31, 2008,
(d) The Company's Current Report on Form 8-K filed with the SEC
on April 30, 2009, and
(e) The description of the Company's capital stock contained in the
latest registration statement of the Company under the Securities Exchange
Act of 1934, as amended.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities 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 a part hereof from the date of filing of such documents.
Item 5. Interests of Named Experts and Counsel.
The legality of the securities offered hereby has been passed upon by
Joseph M. Harary, Esq., the President and General Counsel. As of May 7,
2009, Mr. Harary holds common stock and options to purchase common stock
granted pursuant to the Company's 1992 Stock Option Plan, 1998 Stock Option
Plan, and 2008 Equity Incentive Plan totaling 659,174 shares.
Item 6. Indemnification of Directors and Officers.
Article EIGHTH of the Company's Certificate of Incorporation
provides for the indemnification of the Company's officers and
directors to the fullest extent permitted by Section 145 of the Delaware
General Corporation Law (the "GCL").
Section 145 of the GCL provides as follows:
145 Indemnification of Officers, Directors, Employees and Agents;
Insurance
(a) A corporation shall have power to 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 the person 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 the person in
connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person 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 the
person's conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which 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
reasonable cause to believe that the person's conduct was unlawful.
(b) A corporation shall have the power to indemnify any person 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 the person 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 by the person in connection with the defense or
settlement of such action or suit if the person acted in good faith and in a
manner the person 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 Court of Chancery or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the present or former director, officer, employee or agent is proper in the
circumstances because the person has met the applicable standard of
conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made with respect to a person who is a director or
officer at the time of such determination, (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, or (2) by
a committee of such directors designated by a majority vote of such
directors, even though less than a quorum, or (3) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (4) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such person is not entitled
to be indemnified by the corporation as authorized in this section. Such
expenses (including attorneys' fees) incurred by former directors and
officers or other employees and agents may be so paid upon such terms and
conditions, if any, as the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to
action in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who 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 any
liability asserted against such person and incurred by such person in any
such capacity, or arising out of such person's status as such, whether or not
the corporation would have the power to indemnify such person against
such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, shall stand in the same position under this section with
respect to the resulting or surviving corporation as such person would have
with respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good faith
and in a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by,
or granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses
or indemnification brought under this section or under any bylaw,
agreement, vote of stockholders or disinterested directors, or otherwise.
The Court of Chancery may summarily determine a corporation' obligation
to advance expenses (including attorneys' fees).
Article NINTH of the Company's Certificate of Incorporation
provides for the elimination of any personal liability for monetary damages
of directors to the Corporation or its stockholders for breach of fiduciary
duty, for negligence or for taking or omitting to take any action to the
fullest extent permitted by Section 102(b) (7) of the GCL.
Section 102(b) (7) of the GCL provides as follows:
(b) In addition to the matters required to be set forth in the certificate
of incorporation by subsection (a) of this section, the certificate of
incorporation may also contain any or all of the following matters:
(7) A provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, provided that such provision shall
not eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under section 174 of this Title, or (iv) for
any transaction from which the director derived an improper personal
benefit. No such provision shall eliminate or limit the liability of a director
for any act or omission occurring prior to the date when such provision
becomes effective. All references in this paragraph to a director shall also
be deemed to refer (x) to a member of the governing body of a corporation
which is not authorized to issue capital stock, and (y) to such other person
or persons, if any, who, pursuant to a provision of the certificate of
incorporation in accordance with section 141(a) of this title, exercise or
perform any of the powers or duties otherwise conferred or imposed upon
the board of directors by this title.
Item 8. Exhibits.
4.1 2008 Equity Incentive Plan. Filed as part of the Company's Proxy
Statement dated April 30, 2008 filed with the SEC and incorporated
herein by reference.
5.1 Opinion of counsel re: legality
23.1 Consent of independent auditors
23.2 Consent of counsel (included in Exhibit 5.1 above)
24. Power of Attorney. Included as part of signature page to this
registration statement on Form S-8.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in this registration statement.Notwithstanding the foregoing,
any increase or decrease in the volume of securities offered (if the
total dollar value if securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement.;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that subparagraphs (i) and (ii) above will not apply if
the information required to be included in a post-effective amendment by
those subparagraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this 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 this offering.
The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Company's 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.
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 SEC 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
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 of 1933 and will be governed by the final adjudication
of such issue.
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 Woodbury, State of New York on
this 7th day of May, 2009.
RESEARCH FRONTIERS INCORPORATED
(Registrant)
By:/s/ Joseph M. Harary
Joseph M. Harary, President, CEO, Treasurer,
Principal Executive, Financial and
Accounting Officer.
POWER OF ATTORNEY
We the undersigned directors of Research Frontiers Incorporated
hereby severally constitute and appoint Robert L. Saxe and Joseph M.
Harary, each individually as our true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for us and in our stead,
in any and all capacities, to sign any and all amendments (including post-
effective amendments) to this registration statement and all documents
relating thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing necessary or
advisable to be done in and about the premises, as fully to all intents and
purposes as he could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent 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 by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/Robert M. Budin Director May 7, 2009
Robert M. Budin
/s/M. Philip Guthrie Director May 7, 2009
M. Philip Guthrie
/s/Joseph M. Harary Director, President, Treasurer May 7, 2009
Joseph M. Harary
/s/Richard Hermon-Taylor Director May 7, 2009
Richard Hermon-Taylor
/s/Victor F. Keen Director May 7, 2009
Victor F. Keen
/s/Robert L. Saxe Director, Chairman May 7, 2009
Robert L. Saxe