As filed with the Securities and Exchange Commission on April 12, 1999
Registration No. 333-
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
13-1681234
(I.R.S. Employer Identification No.)
122 East 42nd Street
New York, New York 10168
(Address of Principal Executive Offices) (Zip Code)
1990 STOCK OPTION AND INCENTIVE PLAN OF
REFAC TECHNOLOGY DEVELOPMENT CORPORATION, AS AMENDED,
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
1998 STOCK OPTION AND INCENTIVE PLAN
-and-
STOCK OPTION AGREEMENTS BETWEEN REFAC TECHNOLOGY DEVELOPMENT
CORPORATION AND EACH OF NEIL R. AUSTRIAN, ROBIN L. FARKAS, MARK N. KAPLAN,
HERBERT W. LEONARD, IRA T. WENDER, CAROL BREWER, CHRISTOPHER J. BROOKS,
BERT D. HEINZELMAN, KARL D. KIRK III, PAUL LACOTTA, DONALD R. LAMOND,
JOHN MOLDAUER, PAUL J. MULHAUSER, ARLENE SCANLAN,
DAVID SCHIFF AND DOUGLAS M. SPRANGER
(Full Title of the Plan)
David A. Lang,
Vice President
122 East 42nd Street
New York, New York 10168
(Name and Address of Agent For Service)
(212) 687-4741
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Stephen M Banker, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
(212) 735-3000
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------
Title Of Proposed Maximum Proposed Maximum Amount Of
Securities To Amount To Be Offering Price Aggregate Offering Registration
Be Registered Registered Per Share Price Fee
- -------------------------------------------------------------------------------------------
Common Stock,
par value $.10
per share 50,000 $5.87 $ 293,500.00 $ 81.59
10,000 6.37 63,700.00 17.71
72,000 6.87 494,640.00 137.51
5,000 7.62 38,100.00 10.59
50,000 8.00 400,000.00 111.20
25,000 8.75 218,750.00 60.81
100,000 9.25 925,000.00 257.15
65,000 9.50 617,500.00 171.66
50,000 10.00 500,000.00 139.00
2,500 10.25 25,625.00 7.12
17,000 12.00 204,000.00 56.71
144,500 6.21(1) 897,345.00 249.46
50,000 5.81(2) 290,500.00 80.76
138,750 9.50(2) 1,318,125.00 366.44
50,000 10.63(2) 531,500.00 147.76
------------- ---------
Total 829,750(3) $6,818,285.00 $1,895.48(4)
(1) Estimated pursuant to Rules 457(c) and (h)(1) under the Securities Act
of 1933, as amended (the "Securities Act"), on the basis of the
average of the high and low sale prices for a share of Common Stock on
the American Stock Exchange on April 8, 1999.
(2) Computed pursuant to Rule 457(h)(1) under the Securities Act.
(3) Plus such additional number of shares of Common Stock as may be
issuable pursuant to the antidilution provisions of the
above-referenced plans.
(4) The registration fee has been calculated pursuant to Section 6(b) of
the Securities Act as follows: .000278 of $6,818,285.00, the Proposed
Maximum Aggregate Offering Price of the shares registered hereby.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* Information required by Part I to be contained in the Section
10(a) Prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act and the Introductory Note to Part I
of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the registrant, REFAC Technology
Development Corporation, a Delaware corporation (the "Company"), pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
are incorporated by reference in this Registration Statement.
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998.
(2) The description of the common stock, par value $.01 per share,
of the Company (the "Common Stock") contained in the Company's Registration
Statement on Form 8-A, filed pursuant to Section 12(b) of the Exchange Act
on January 27, 1994 (File No.1-12776), including any amendment or report
filed for the purpose of updating such information.
All documents subsequently filed by the Company 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 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 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
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such 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
Certain legal matters with respect to the offering of the shares
of Common Stock registered hereby have been passed upon by Skadden, Arps,
Slate, Meagher & Flom LLP ("Skadden, Arps"). Mark N. Kaplan, a director and
stockholder of the Company, is of counsel to Skadden, Arps.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") empowers a corporation 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 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 or 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 also empowers a corporation 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
such person acted in any of the capacities set forth above, against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted under similar standards, except that no indemnification may 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 was
brought shall determine that despite the adjudication of liability such
person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
Section 145 further provides that to the extent that a director or
officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to above or in the defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith; that indemnification provided for by Section 145 shall not be
deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the corporation is empowered to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would
have the power to indemnify him against such liabilities under Section 145.
The Company's Restated Certificate of Incorporation, as amended
(the "Charter"), provides that the Company shall indemnify its directors
and officers to the fullest extent authorized or permitted by the DGCL, as
the same exists or may hereafter be amended, and such right to
indemnification shall continue as to a person who has ceased to be a
director of officer of the Company and shall inure to the benefit of his or
her heirs, executors and administrators; provided, however, that, except
for proceedings to enforce rights to indemnification, the Company shall not
be obligated to indemnify any director or officer (or his or her heirs,
executors or personal or legal representative) in connection with a
proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in the Charter
shall include the right to be paid by the Company the expenses incurred in
defending or otherwise participating in any proceeding in advance of its
final disposition.
The Charter provides that the Company may, to the extent
authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents
of the Company who are not directors or officers similar to those conferred
in the Charter to directors and officers of the Corporation.
As permitted under Section 102(b)(7) of the DGCL, the Company's
Charter also provides that no director shall be personally liable to the
Company or any of its stockholders for monetary damages for breach of
fiduciary duty as a director except for liability (i) for any breach of the
director's duty of loyalty to the Company 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 or
(iv) for any transaction from which the director derived an improper
personal benefit. The Company's Charter further provides that any repeal or
modification of this provision by the stockholders of the Company shall not
adversely affect any right or protection of a director of the Company
existing at the time of such repeal or modification with respect to acts or
omissions occurring prior to such repeal or modification.
The By-Laws of the Company provide that the Company shall, to the
fullest extent permitted by the DGCL, indemnify members of the Board and
may, if authorized by the Board, indemnify its officers and any and all
persons whom it shall have power to indemnify against any and all expenses,
liabilities or other matters.
In addition, the Company maintains liability insurance coverage
for directors and officers, including, without limitation, coverage
applicable in certain situations where the Company cannot pursuant to the
DGCL directly indemnify such directors and officers.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company
has been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
ITEM 8. EXHIBITS
The exhibits accompanying this Registration Statement are listed
on the accompanying Exhibit Index.
ITEM 9. REQUIRED UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) RULE 415 OFFERING.
(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, as amended (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, represents a fundamental change in the information set
forth in the 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 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;
(2) 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.
(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) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE. 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.
(h) REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF
REGISTRATION STATEMENT ON FORM S-8. 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 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 Act and
will be governed by the final adjudication of such issue.
(c) UNDERTAKING: The Company hereby undertakes that it will submit
or has submitted the plans described herein and any amendment thereto to
the Internal Revenue Service ("IRS") in a timely manner and has made or
will make all changes required by the IRS in order to qualify such plans in
accordance with applicable law.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 New York, State of New York, on
this 25th day of March, 1999.
REFAC TECHNOLOGY
DEVELOPMENT CORPORATION
By: /s/ Robert L. Tuchman
----------------------------------
Robert L. Tuchman
President, Chief Executive Officer
and General Counsel
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Raymond A. Cardonne, Jr.
his or her attorneys-in-fact, each with the power of substitution, for him
or her in any and all capacities, to sign any amendments to this
Registration Statement (including post-effective amendments), and to file
the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying
and confirming all that each of said attorneys-in-fact, or his or her
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
NAME TITLE DATE
---- ----- ----
/s/ Robert L. Tuchman
- ------------------------- Chairman of the Board, March 25, 1999
Robert L. Tuchman President, Chief Executive
Officer & General Counsel
(Principal Executive Officer)
/s/ Raymond A. Cardonne, Jr.
- ------------------------ Vice President and Secretary March 25, 1999
Raymond A. Cardonne, Jr.
/s/ Elliott s. Greller
- ------------------------ Vice President, Chief March 25, 1999
Elliott S. Greller Financial Officer and
Treasurer
(Principal Financial
Officer & Controller)
/s/ Neil R. Austrian
- ------------------------ Director March 25, 1999
Neil R. Austrian
/s/ Robin L. Farkas
- ------------------------ Director March 25, 1999
Robin L. Farkas
/s/ Mark N. Kaplan
- ------------------------ Director March 25, 1999
Mark N. Kaplan
/s/ Herbert W. Leonard
- ------------------------ Director March 25, 1999
Herbert W. Leonard
/s/ Douglas M. Spranger
- ------------------------ Director March 25, 1999
Douglas M. Spranger
/s/ Ira T. Wender
- ------------------------ Director March 25, 1999
Ira T. Wender
EXHIBIT INDEX
Exhibit No. Description of Exhibit Page No.
- ----------- ---------------------- --------
4.1 Restated Certificate of Incorporation of the
Company (filed as Exhibit 3 to the Company's
Quarterly Report on Form 10-Q for the quarter
ended June 30, 1988 and incorporated herein by
reference).
4.2 Certificate of Amendment of the Restated
Certificate of Incorporation of the Company
(filed as Exhibit 3 to the Company's Quarterly
Report on Form 10-Q for the quarter ended June
30, 1988 and incorporated herein by reference). --
4.3 By-Laws of the Company (filed as Exhibit 3 to
the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997 and
incorporated herein by reference). --
5(a) Opinion of Skadden, Arps, Slate, Meagher & Flom
LLP regarding the legality of the securities
being registered. 13
5(b) Undertaking of the Company (included as Section
(c) in Item 9 above). --
23.1 Consent of Grant Thornton LLP relating to the
audited financial statements of the Company. 15
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom
LLP (included in their opinion filed as Exhibit
5(a)). --
25 Power of Attorney (included on the signature
page of this Registration Statement). --
99.1 1990 Stock Option and Incentive Plan (filed as
an exhibit to the Company's Proxy Statement for
its Annual Meeting of Shareholders held on May
16, 1990 and incorporated herein by reference). --
99.2 Form of Stock Option Agreement relating to
options granted under the 1990 Stock Option and
Incentive Plan. 16
99.3 1998 Stock Option and Incentive Plan (filed as
an exhibit to the Company's Proxy Statement for
its Annual Meeting of Stockholders held on May
11, 1998 and incorporated herein by reference). --
99.4 Form of Stock Option Agreement relating to
incentive stock options granted under the 1998
Stock Option and Incentive Plan. 22
99.5 Form of Stock Option Agreement relating to
nonqualified stock options granted under the
1998 Stock Option and Incentive Plan. 29
99.6 Form of Stock Option Agreement between the
Company and each of Neil R. Austrian, Robin L.
Farkas, Mark N. Kaplan, Herbert W. Leonard and
Ira T. Wender, each dated as of February 7,
1996. 36
99.7 Form of Stock Option Agreement between the
Company and each of Carol Brewer, Christopher J.
Brooks, Bert D. Heinzelman, Karl D. Kirk III,
Paul Lacotta, Don R. Lamond, John Moldauer,
Paul J. Mulhauser, David Schiff and Douglas M.
Spranger, each dated as of November 25, 1997
and amended as of March 18, 1998. 41
99.8 Form of Stock Option Agreement between the
Company and Arlene Scanlan dated as of January
21, 1998. 48