As filed with the Securities and Exchange Commission on June 20, 2011
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S–8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
STR Holdings, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware |
| 27-102334 |
(State or Other Jurisdiction of Incorporation or Organization) |
| (I.R.S. Employer Identification No.) |
1699 King Street
Enfield, CT 06082
(860) 758-7300
(Address of Principal Executive Offices, Including Zip Code)
STR HOLDINGS, INC. 2010 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plan)
Alan N. Forman
Vice President and General Counsel
STR Holdings, Inc.
1699 King Street
Enfield, CT 06082
(860) 758-7300
(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 (Phone)
(212) 310-8007 (Fax)
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 £ (Do not check if a smaller reporting company) |
| Smaller reporting company £ |
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered |
| Amount to |
| Proposed |
| Proposed |
| Amount of |
| |||
Common Stock, par value $0.01 per share |
| 500,000 shares |
| $ | 15.63 |
| $ | 7,815,000.00 |
| $ | 907.32 |
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(1) The shares registered hereunder include 500,000 shares of Common Stock reserved for issuance pursuant to the STR Holdings, Inc. 2010 Employee Stock Purchase Plan (the “2010 ESPP”). This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the 2010 ESPP by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock of STR Holdings, Inc.
(2) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and (h)(1) under the Securities Act of 1933, as amended (the “Securities Act”). The proposed maximum offering price per share and proposed maximum aggregate offering price are based upon the average of the high and low prices of the Registrant’s Common Stock as reported on the New York Stock Exchange on June 14, 2011.
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EX-5.1 |
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EX-23.1 |
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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 note to Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the 2010 ESPP covered by this Registration Statement as required by Rule 428(b)(1).
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 “SEC”):
(a) the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2010, filed on March 11, 2011 and the Registrant’s Quarterly Report on Form 10-Q for the three months ended March 31, 2011, filed on May 5, 2011 pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”);
(b) the Registrant’s Current Reports on Form 8-K filed with the SEC on May 4, 2011 and May 25, 2011, in each case only to the extent filed and not furnished;
(c) the description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form S-1 (Reg. No. 333-162376), as amended, which description is incorporated by reference into the Form 8-A filed with the SEC on November 5, 2009 under 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; and
(d) all other documents subsequently filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (except as to any portion of any future filings which is not deemed to be filed under those sections) after the date of this prospectus and 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.
Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement, or in any other subsequently filed document that also is or is deemed to be incorporated by reference in this Registration Statement, modifies or supersedes such prior statement. Any statement contained in this Registration Statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document that is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes such prior 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
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
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 attorney’s 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 Registrant’s bylaws authorize the indemnification of its officers and directors, consistent with Section 145 of the DGCL, as amended. The Registrant has 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 person’s 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 director’s fiduciary duty, except (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) 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 maintains 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.
Exhibit Number |
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4.1 |
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| STR Holdings, Inc. 2010 Employee Stock Purchase Plan (incorporated herein by reference to Exhibit 10.29 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2010 filed with the SEC on March 11, 2011). |
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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 Weil, Gotshal & Manges LLP (included in Exhibit 5.1). |
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24.1 |
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| Power of Attorney (included on the signature page). |
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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 the Registration Statement (i) to include any prospectus required by Section 10(a)(3) of the Securities Act, (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in 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 20 percent 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; provided, however, that clauses (1)(i) and (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 Registrant 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 1933 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 and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 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.
C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that, in the opinion of the Securities and Exchange 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.
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 20th day of June, 2011.
| STR HOLDINGS, INC. | ||
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| By: | /s/ Barry A. Morris | |
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| Name: | Barry A. Morris |
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| Title: | Executive Vice President and Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned constitutes and appoints each of Barry A. Morris and Alan N. Forman, or either of them, acting alone, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in his or her name, place and stead, in any and all capacities, to sign this Registration Statement on Form S-8 (including all pre-effective and post-effective amendments, including post-effective amendments to the registration statement, including a prospectus or an amended prospectus therein and registration filed pursuant to the Securities Act of 1933) and to file the same, with exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming any such attorney-in-fact as 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 |
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/s/ Dennis L. Jilot |
| Chairman, President and Chief Executive Officer |
| June 20, 2011 |
Dennis L. Jilot |
| (Principal Executive Officer) |
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/s/ Barry A. Morris |
| Executive Vice President and Chief Financial Officer |
| June 20, 2011 |
Barry A. Morris |
| (Principal Financial Officer) |
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/s/ Joseph C. Radziewicz |
| Controller and Principal Accounting Officer |
| June 20, 2011 |
Joseph C. Radziewicz |
| (Principal Accounting Officer) |
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/s/ Scott S. Brown |
| Director |
| June 20, 2011 |
Scott S. Brown |
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/s/ Robert M. Chiste |
| Director |
| June 20, 2011 |
Robert M. Chiste |
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/s/ John A. Janitz |
| Director |
| June 20, 2011 |
John A. Janitz |
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/s/ Uwe Krueger |
| Director |
| June 20, 2011 |
Uwe Krueger |
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/s/ Andrew M. Leitch |
| Director |
| June 20, 2011 |
Andrew M. Leitch |
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/s/ Jason L. Metakis |
| Director |
| June 20, 2011 |
Jason L. Metakis |
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/s/ Dominick J. Schiano |
| Director |
| June 20, 2011 |
Dominick J. Schiano |
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/s/ Susan C. Schnabel |
| Director |
| June 20, 2011 |
Susan C. Schnabel |
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/s/ Ryan M. Sprott |
| Director |
| June 20, 2011 |
Ryan M. Sprott |
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Exhibit Number |
| Exhibit | |
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4.1 |
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| STR Holdings, Inc. 2010 Employee Stock Purchase Plan (incorporated herein by reference to Exhibit 10.29 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2010 filed with the SEC on March 11, 2011). |
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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 Weil, Gotshal & Manges LLP (included in Exhibit 5.1). |
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24.1 |
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| Power of Attorney (included on the signature page). |
