Post-Effective Amendment to an S-8 — Form S-8 Filing Table of Contents
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2: EX-5.1 Opinion re: Legality HTML 12K
3: EX-23.1 Consent of Experts or Counsel HTML 7K
4: EX-23.2 Consent of Experts or Counsel HTML 7K
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 o Accelerated
filer o
Non-accelerated
filer o Smaller
reporting company x
(Do not
check if a smaller reporting company)
CALCULATION
OF REGISTRATION FEE
Title
of
Securities
to be Registered
Amount
to be
Registered
(1)
Proposed
Maximum Offering Price
per
Share (1)
Proposed
Maximum Aggregate
Offering
Price (1)
Amount
of
Registration
Fee
See
below (1)
N/A
N/A
N/A
N/A
(1)
The
registrant is not registering additional
securities. Registration fees were originally paid by the
registrant’s predecessor-in-interest upon filing of the original
registrations statements on Form S-8 (Registration Nos. 333-130763 and
333-91192). Consequently, no additional registration fees are
required with respect to the filing of this Post-Effective Amendment No.
1.
EXPLANATORY
NOTE
On August31, 2007, The LGL Group, Inc., an Indiana corporation (“LGL Indiana”), was
merged (the “Merger”) with and into its wholly-owned subsidiary, The LGL Group,
Inc., a Delaware corporation (“LGL Delaware”), pursuant to an Agreement and Plan
of Merger dated August 28, 2007 and approved by the shareholders of LGL Indiana
at its 2007 annual meeting of shareholders held on August 28,2007. As a result of the Merger, LGL Delaware is the surviving
corporation, existing under and governed by the laws of the State of Delaware
(the “Corporation”).
Under the
terms of the Merger, each share of common stock of LGL Indiana issued and
outstanding was exchanged for one share of common stock of LGL Delaware, such
that all former holders of common stock of LGL Indiana became holders of common
stock of the Corporation. Additionally, under the terms of the
Merger, the Certificate of Incorporation and By-Laws of LGL Delaware are the
Certificate of Incorporation and By-Laws of the Corporation.
As used
in this Post-Effective Amendment No. 1 on Form S-8, the term “registrant” refers
to the Corporation.
Pursuant
to Rule 414 under the Securities Act of 1933, as amended (the “Securities Act”),
the Corporation, as successor issuer to LGL Indiana, adopts, as of the Effective
Date, the original registration statements on Form S-8 (Registration Nos.
333-130763 and 333-91192) (collectively, the “Original Registration Statements”)
with respect to the registrant’s 2001 Equity Incentive Plan (the “Plan”) as its
own registration statements for all purposes of the Securities Act and the
Securities Exchange Act of 1934, as amended. In addition, this
Post-Effective Amendment No. 1 to the Original Registration Statements is being
filed to reflect the succession described above and thereby amends the Original
Registration Statements.
Pursuant
to Rule 429 under the Securities Act, as 300,000 shares underlying the Plan were
initially registered under the Original Registration Statement filed on June 26,2002 (Registration No. 333-91192) and 300,000 additional shares underlying the
Plan were registered under the Original Registration Statement filed on December29, 2005 (Registration No. 333-130763), a single Post-Effective Amendment No. 1
on Form S-8 is being filed with respect to the Original Registration
Statements.
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Certain Documents by Reference
The
registrant incorporates by reference into this Registration Statement the
following documents filed by it under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”):
(1)
Annual
Report on Form 10-K for the fiscal year ended December 31,2007;
(2)
Quarterly
Report on Form 10-Q for the quarter ended March 31,2008;
(3)
Current
Reports on Form 8-K filed on February 29, April 16, and April 23, 2008;
and
(4)
the
description of the registrant’s common stock contained in its registration
statement on Form 8-A (Registration No. 001-00106), including any
amendments or reports filed for the purpose of updating such
description.
Additionally,
all documents subsequently filed with the Securities and Exchange Commission 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 that indicates that all
securities offered herein have been sold or that deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the respective dates of filing of such
documents. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes hereof or of the related prospectus to
the extent that a statement contained herein or in any other subsequently filed
document that is also incorporated or deemed to be incorporated 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
Not
applicable.
Item
6. Indemnification of Directors and Officers
The
Certificate of Incorporation of the Corporation provides that the Corporation
shall, to the fullest extent permitted by Section 145 of the General Corporation
Law of the State of Delaware (the “DGCL”), as the same may be amended and
supplemented, indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said
section. In addition, the Corporation’s Certificate of Incorporation
eliminates the personal liability of the directors of the Corporation to the
fullest extent permitted by paragraph (7) of subsection (b) of Section 102 of
the DGCL, as same may be amended and supplemented.
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Section
5.1 of the By-laws of the Corporation further provides as follows:
(a) The
Corporation shall indemnify, subject to the requirements of subsection (d) of
this Section, 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. 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 his conduct was unlawful.
(b) The
Corporation shall indemnify, subject to the requirements of subsection (d) of
this Section, 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 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 by him 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 Court of Chancery of the State of
Delaware 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 of the State of Delaware
or such other court shall deem proper.
(c) To
the extent that a director, officer, employee or agent of the Corporation, or a
person serving in any other enterprise at the request of the Corporation, has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsection (a) and (b) of this Section, or in defense
of any claim, issue or matter therein, the Corporation shall indemnify him
against expenses (including attorneys’ fees) actually and reasonably incurred by
him in connection therewith.
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(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 director, officer,
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
Section. Such determination shall be made (1) by a majority vote of
the directors who are not parties to such action, suit or proceeding even though
less than a quorum, or (2) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses
incurred by a director, officer, employee or agent in defending a civil or
criminal action, suit or proceeding may be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding as authorized by the
Board of Directors upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Section.
(f) The
indemnification and advancement of expenses provided by or granted pursuant to,
the other subsections of this Section shall not limit the Corporation from
providing any other indemnification or advancement of expenses permitted by law
nor shall it be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) The
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or who 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 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 liability under
the provisions of this Section.
(h) 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.
(i) For
the 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, 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
the provisions of this Section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
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(j) This
Section 5.1 shall be construed to give the Corporation the broadest
power permissible by the DGCL, as it now stands and as hereafter
amended.
The
Corporation is a party to an indemnification agreement with each of its
directors and executive officers whereby the Corporation is to indemnify each
such person from and against any and all judgments, fines, penalties, excise
taxes and amounts paid in settlement or incurred by such person for or as a
result of action taken or not taken while such director was acting in his
capacity as a director or executive officer of the Corporation.
The
Corporation’s officers and directors are also covered under the Corporation’s
directors and officers insurance policy.
Item
7. Exemption from Registration Claimed
Not
applicable.
Item
8. Exhibits
Exhibit
No.
Description
5.1
Opinion
of Olshan Grundman Frome Rosenzweig & Wolosky LLP.*
23.1
Consent
of Ernst & Young LLP.*
23.2
Consent
of J.H. Cohn LLP.*
23.3
Consent
of Olshan Grundman Frome Rosenzweig & Wolosky LLP (contained in
Exhibit 5.1).*
________________________
* Filed
herewith.
Item
9. Undertakings
The
undersigned registrant hereby undertakes:
(a)(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 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 a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
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(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
paragraphs (a)(1)(i) and (a)(1)(ii) 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 Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 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 registrant’s
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to 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.
(h)
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 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.
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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
Orlando, State of Florida, on the 20th day of June, 2008.
THE
LGL GROUP, INC.
By:
/s/
Robert Zylstra
Name:
Robert Zylstra
Title:
President and Chief Executive Officer (Principal
Executive Officer)
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 date
indicated.
