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.
Item 5. Interests of
Named Experts and Counsel.
Norman D. Finch Jr., Vice President, General Counsel and Secretary of the Registrant, has passed upon on
the validity of the shares of Common Stock offered under the 2014 Plan for the Registrant. As of the date of this Registration Statement, Mr. Finch was employed by the Registrant and was the beneficial owner of approximately 25,000 shares of
Common Stock of the Registrant.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”) provides that: (1) under certain
circumstances a corporation may indemnify a director or officer made party to, or threatened to be made party to, any civil, criminal, administrative or investigative action, suit or proceeding (other than an action by or in the right of the
corporation) because such person is or was a director, officer, employee or agent of the corporation, or because such person is or was so serving another enterprise at the request of the corporation, against expenses, judgments, fines and amounts
paid in settlement reasonably incurred by such person in connection with such action, suit or proceeding, if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to criminal cases, had no reasonable cause to believe such person’s conduct was unlawful; (2) under certain circumstances a corporation may indemnify a director or officer made party to, or threatened to be
made party to, any action or suit by or in the right of the corporation for judgment in favor of the corporation because such person is or was a director, officer, employee or agent of the corporation, or because such person is or was so serving
another enterprise at the request of the corporation, against expenses reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the corporation; and (3) a present or former director or officer shall be indemnified by the corporation against expenses reasonably incurred by such person in connection with and to the
extent that such person has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in the preceding clauses, or in defense of any claim, issue or matter therein.
Our amended and restated certificate of incorporation (the “Certificate of Incorporation”) and our amended and restated bylaws (the
“Bylaws”) provide that, to the fullest extent legally permitted by the DGCL, we will indemnify and hold harmless any person who was or is a party or is threatened to be made a party to or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact that he or a person of whom he is the legal representative, is or was a director, officer, employee or agent of the Company, or
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is or was serving at the request of the Company or for its benefit as a director, officer employee or agent of another corporation, or as its representative in a partnership, joint venture, trust
or other enterprise, from and against any and all expenses, liabilities and losses (including without limitation attorney’s fees, judgments, fines and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by
such person in connection therewith. Additionally, our Bylaws provide that expenses (including attorneys’ fees) actually and reasonably incurred by a current or former director or executive officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding with respect to which indemnification may be provided pursuant to the Certificate of Incorporation and Bylaws shall be paid or reimbursed by the Company 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 executive officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Company. Such
expenses (including attorneys’ fees) may be so paid or reimbursed upon such additional terms and conditions, if any, as the Board of Directors in good faith deems reasonable and appropriate, consistent with its obligation to promptly pay or
reimburse all such expenses actually and reasonably incurred.
Our Certificate of Incorporation eliminates the liability of directors for
monetary damages for breach of fiduciary duty as directors, except for liability (1) for any breach of the director’s duty of loyalty to the Company or its stockholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) under Section 174 of the DGCL, or (4) for any transaction from which the director derived an improper personal benefit. The DGCL and our Bylaws permit the purchase by the
Company of insurance for indemnification of directors and officers. We currently maintain directors and officers liability insurance.
The
foregoing summary of Section 145 of the DGCL, our Certificate of Incorporation and our Bylaws is qualified in its entirety by reference to the relevant provisions of Section 145, the relevant provisions of the Registrant’s Certificate
of Incorporation, which are incorporated herein by reference to Exhibit 3.1 to the Registrant’s Registration Statement on Form S-3, Registration No. 333-108544, and the relevant provisions of the Company’s Amended and Restated Bylaws,
which are incorporated herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on May 28, 2014.
Item 7.
Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Reference is made
to the attached Exhibit Index, which is incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
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(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;
(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 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 a prospectus filed
with the Securities and Exchange Commission (the “SEC”) pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 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 this registration statement or any material change to such information in this registration statement;
provided
,
however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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 15(d) of the Securities Exchange Act that are incorporated by reference 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) 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 Securities Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the
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Securities 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 SEC 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 Securities Act and will be
governed by the final adjudication of such issue.
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POWERS OF ATTORNEY
Each person whose signature appears below hereby severally constitutes, appoints and authorizes Norman D. Finch Jr., William G. Stiehl and Guy
Chayoun, and each of them, as true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution for such person and in such person’s name, place and stead, and in any and all capacities to sign and execute any and
all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and
hereby grants to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as such person might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their 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.
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Signature
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Capacity
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Date
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S
/ J
EROME
A. P
ERIBERE
Jerome A. Peribere
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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June 4, 2014
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/ C
AROL
P. L
OWE
Carol P. Lowe
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Senior Vice President and Chief Financial Officer
(Principal Financial Officer)
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June 4, 2014
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S
/ W
ILLIAM
G. S
TIEHL
William G. Stiehl
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Chief Accounting Officer and Controller
(Principal Accounting Officer)
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June 4, 2014
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/ H
ANK
B
ROWN
Hank Brown
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Director
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June 4, 2014
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/ L
AWRENCE
R. C
ODEY
Lawrence R. Codey
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Director
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June 4, 2014
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ATRICK
D
UFF
Patrick Duff
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Director
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June 4, 2014
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S
/ J
ACQUELINE
B. K
OSECOFF
Jacqueline B. Kosecoff
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Director
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June 4, 2014
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/ K
ENNETH
P. M
ANNING
Kenneth P. Manning
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Director
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June 4, 2014
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ILLIAM
J. M
ARINO
William J. Marino
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Director
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June 4, 2014
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/ J
ERRY
R. W
HITAKER
Jerry R. Whitaker
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Director
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June 4, 2014
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