As filed with the Securities and Exchange Commission on November 8, 2004
Registration No. 333-115052
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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RESEARCH FRONTIERS INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 11-2103466
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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240 Crossways Park Drive
Woodbury, New York 11797
(516) 364-1902
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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Robert L. Saxe
Chairman and Chief Executive Officer
Research Frontiers Incorporated
240 Crossways Park Drive
Woodbury, New York 11797
(516) 364-1902
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies of all communications, including all communications sent to
the agent for service, should be sent to:
Joseph M. Harary, Esq.
President and General Counsel
Research Frontiers Incorporated
240 Crossways Park Drive
Woodbury, New York 11797
(516) 364-1902
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Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box: [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Title of Proposed maximum Proposed maximum Amount of
Shares Amount to offering price aggregate registra-
to be registered be registered(2) per Share offering price tion fee
Common Stock,$0.0001
par value per share 2,000,000 shares $11.20(1) $22,400,000.00(1) $2,838.08(3)
Warrants to Purchase Common Stock(4) (5) (5) (5)
(1) The price is estimated in accordance with Rule 457(c) under the Securities
Act of 1933, as amended, solely for the purpose of calculating the registration
fee and is $11.20 which was calculated based upon the average of the high and
low trading price per share of common stock of Research Frontiers Incorporated
on the Nasdaq National Market System on April 28, 2004, which was within five
business days of the original filing of this Registration Statement.
(2) Pursuant to Rule 416 under the Securities Act, this Registration Statement
also relates to an indeterminate number of additional shares of our common
stock which may become issuable by reason of any stock split, stock dividend,
recapitalization, or similar transaction that is effected without the receipt
of consideration and results in an increase in the number of shares of our
common stock that are outstanding.
(3) Previously paid.
(4) An indeterminate number of warrants to purchase the shares of Common Stock
registered hereunder.
(5) Pursuant to Rule 457(g), no separate registration fee is required.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
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This information in this prospectus is not complete and may be changed. We may
not sell these securities until the Securities and Exchange Commission declares
our Registration Statement effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities in
any state where the offer or sale is not permitted.
PROSPECTUS
SUBJECT TO COMPLETION, DATED NOVEMBER 8, 2004
2,000,000 Shares
Common Stock
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Research Frontiers Incorporated may from time to time issue up to 2,000,000
shares of common stock, and/or warrants to purchase such common stock.A general
description of the known material terms of the securities we are offering is
included herein. We will specify in an accompanying prospectus supplement any
specific material terms of the securities offered which are unknown as of the
date of this prospectus. We may sell these securities to or through underwriters
and also to other purchasers or through agents. We will set forth the names of
any underwriters or agents in the accompanying prospectus supplement.
Our common stock is listed on the Nasdaq National Market System under the
symbol "REFR." The last reported sale price of our common stock on the
Nasdaq National Market System on November 5, 2004 was $7.50.
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Investing in our common stock involves a high degree of risk. See 'Risk
Factors' beginning on page 3.
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Neither the Securities and Exchange Commission nor any State Securities
Commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
This prospectus may not be used to consummate a sale of securities unless it is
accompanied by a prospectus supplement.
The date of this prospectus is , 2004
SUMMARY
You should read the entire prospectus, including the section entitled
'Risk Factors,' carefully before making an investment decision.
THE COMPANY
Research Frontiers Incorporated ("Research Frontiers" or the
"Company") develops and licenses its suspended particle technology for
controlling the amount of light passing through a device. Such
suspended particle devices are often referred to as "SPDs," "light
valves," or "SPD-Smart " products.
SPDs use microscopic light-absorbing particles that are either in
a liquid suspension or a film. The microscopic particles align when an
electrical voltage is applied. This permits light to pass through the
device, and allows the amount of light to be controlled. Our offices
are located at: 240 Crossways Park Drive, Woodbury, NY 11797
(telephone: 516-364-1902).
RISK FACTORS
In addition to the other information in this prospectus, you should
carefully consider the following factors in evaluating us and our business
before purchasing the shares of common stock offered hereby. This prospectus
contains, in addition to historical information, forward-looking statements that
involve risks and uncertainties. Our actual results could differ materially.
Factors that could cause or contribute to such differences include, but are not
limited to, those discussed below, as well as those discussed elsewhere in this
prospectus, including the documents incorporated by reference.
There are risks associated with investing in companies such as ours who
are engaged in research and development. Because of these risks, you
should only invest if you are able to bear the risk of losing your entire
investment. Before investing, in addition to risks which could apply to
any issuer or offering, you should also consider the business we are in
and the following:
Research Frontiers has a history of operating losses, expects to incur
additional losses in the future, and consequently will need additional
funds in the future to continue its operations. To date, Research
Frontiers' has lost money, and we expect to lose money in the
foreseeable future. Because we expect that our future revenues will
consist primarily of license fees (which have not been significant to date),
unless our licensees produce and sell products using our technology,
Research Frontiers will not be profitable. There is no guarantee
that we will ever be profitable. Since Research Frontiers was started
in 1965 through December 31, 2003, its total net loss was $50,922,625.
In 2003 our net loss was $4,772,308 and was $3,951,116 in 2002.
We have funded our operations by selling our common stock to investors.
If we need additional money, there is no guarantee that it will be available
when we need it, or on favorable terms. The Company will need to raise
additional capital no later than the first quarter of 2005 if operations,
including research and development and marketing, are to be maintained
at current levels. If the Company cannot raise additional funds,
it will be required to reduce expenses during 2004. Eventual success
of the Company and generation of positive cash flow will be dependent
upon the extent of commercialization of products using the
Company's technology by the Company's licensees and payments
of continuing royalties on account thereof.
Research Frontiers depends upon the activities of its licensees in order
to be profitable. We do not directly manufacture or market products
using SPD technology. Although a variety of products have been sold by our
licensees, and since it is up to our licensees to decide when and if they
will introduce products using SPD technology, we cannot predict when
and if our licensees will generate substantial sales of such products.
Research Frontiers' SPD technology is currently licensed to 34 companies.
Other companies are also evaluating the technology for use in various
products. In the past, some companies have evaluated our technology
without proceeding further. Also, we do not intend to manufacture
products using SPD technology. Instead we intend to continue to
license our technology to manufacturers of end products, films and emulsion.
We expect that our licensees would be primarily responsible for marketing
and manufacturing, but we are also engaging in market
development activities.
Products using SPD technology have only recently been introduced into the
marketplace. Developing products using new technologies can be risky
because problems, expenses and delays frequently occur. Research
Frontiers cannot control whether or not its licensees will develop SPD
products. Some of our licensees appear to be more active than others, some
appear to be better capitalized than others, and some licensees appear
to be inactive such as General Electric, Polaroid and Global Mirror.
There is no guarantee when or if our licensees will
successfully produce any commercial product using SPD technology.
SPD technology is the only technology Research Frontiers works with,
so that our success depends upon the viability of SPD technology which
has yet to be proven. We have not fully ascertained the performance and
long-term reliability of our technology, and therefore there is no
guarantee that our technology will successfully be incorporated into all
of the products which we are targeting for use of SPD technology. We
expect that different product applications for SPD technology will have
different performance and reliability specifications. For example, SPD
eyewear requiring batteries may need to use lower voltages than SPD
windows used in homes or offices, yet may not need to last as long or be
exposed to as harsh an environment. We expect that our licensees will
primarily be responsible for reliability testing, but that we may also
continue to do reliability testing so that we can more effectively focus
our research and development efforts towards constantly improving the
performance characteristics and reliability of products using SPD technology.
AVAILABLE INFORMATION
Research Frontiers files reports, proxy statements and other information
with the Securities and Exchange Commission. You may read and copy
such reports, proxy statements and other information at the public
reference facilities maintained by the SEC at Room 1204, Judiciary
Plaza, 450 Fifth Street, N.W. Washington, D.C. 20549 and you can
obtain information on the operation of the Public Reference Room by
calling the SEC at 1-800-SEC-0330. The SEC also maintains an internet
web site at http://www.sec.gov that contains reports, proxy and
information statements and other information regarding issuers, such as
Research Frontiers, that file electronically with the SEC. Additional
information about us can also be found at our web site at
http://www.SmartGlass.com.
The SEC allows us to incorporate by reference the information we file
with them, which means that we can disclose important information to
you by referring you to those documents. The information incorporated
by reference is considered to be part of this prospectus, and later
information that we file with the SEC will automatically update and
supersede this information. We incorporate by reference into this
prospectus our:
o annual report on Form 10-K and Form 10K/A for the fiscal year
ended December 31, 2003,
o quarterly report on Form 10-Q and Form 10Q/A for the quarter
ended March 31, 2004,
o quarterly report on Form 10-Q and Form 10Q/A for the quarter
ended June 30, 2004,
o the portions of the proxy statement dated April 30, 2004 for our
annual meeting of stockholders held on June 10, 2004 that have been
incorporated by reference into our report on Form 10-K for the fiscal
year ended December 31, 2003, and
o any future filings after effectiveness of the registration statement made
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until all of the common stock offered under this
prospectus is sold.
All filings filed by Research Frontiers pursuant to the Exchange Act after the
date of the initial registration statement and prior to effectiveness
of the registration statement shall be deemed to be incorporated by reference
into this prospectus.
This prospectus is part of a registration statement we filed with the SEC.
As permitted by the SEC, this prospectus does not contain all of the
information set forth in the registration statement and the exhibits and
schedules thereto. The statements contained in this prospectus as to the
contents of any contract or any other document are not necessarily
complete. In each case you should refer to the copy of such contract or
document filed as an exhibit to the registration statement.
We will provide each person to whom this prospectus is delivered, a
copy of any information we have incorporated by reference but have not
delivered along with this prospectus. If you would like a copy of any
document incorporated herein by reference, other than exhibits unless
such exhibits are specifically incorporated by reference in any such
document, you can call or write to us at our principal executive offices:
240 Crossways Park Drive, Woodbury, New York 11797-2033,
Attention: General Counsel (telephone: (516) 364-1902). We will
provide this information without charge to any person, including a
beneficial owner, to whom a copy of this prospectus is delivered upon
written or oral request.
No dealer, salesperson or other individual has been authorized to give
any information or to make any representation not contained in or
incorporated by reference in this prospectus or in any supplement to this
prospectus. If given or made, you must not rely on such information or
representation as having been authorized by Research Frontiers. Neither
the delivery of this prospectus nor any sale made hereunder will,
under any circumstances, create an implication that there has not been
any change in the affairs of Research Frontiers since the date of this
prospectus or that the information contained herein is correct
or complete as of any time after the date of this prospectus.
This prospectus and any supplement to this prospectus do not constitute
an offer to sell or a solicitation of an offer to buy any securities offered
hereby to any person, or by anyone, in any jurisdiction in which such
offer or solicitation may not lawfully be made.
The information set forth herein and in all publicly disseminated
information about Research Frontiers, includes "forward-looking
statements" within the meaning of Section 21E of the Securities
Exchange Act of 1934, as amended, and is subject to the safe harbor
created by that section. Readers are cautioned not to place undue
reliance on these forward-looking statements as they speak only as of the
date of this prospectus and are not guaranteed.
DIVIDENDS
Research Frontiers has never paid any cash dividends and does not
expect to pay any cash dividends for the foreseeable future.
USE OF PROCEEDS
Unless we indicate otherwise in the applicable prospectus supplement,
we currently intend to use the net proceeds from this offering for general
corporate purposes, including our internal research and development
programs, general working capital and possible future acquisitions.
We have not determined the amounts we plan to spend on any of the areas listed
above or the timing of these expenditures. As a result, our management will have
broad discretion to allocate the net proceeds from this offering. Pending
application of the net proceeds as described above, we intend to invest the net
proceeds of the offering in money market funds and other interest-bearing
investments.
DESCRIPTION OF SECURITIES
We may sell from time to time, in one or more offerings common stock and/or
warrants to purchase common stock.:
DESCRIPTION OF COMMON STOCK
Research Frontiers can issue 100,000,000 shares of common stock,
$0.0001 par value per share. 12,791,330 shares were outstanding as of
the date of this prospectus. Holders of common stock are entitled to one
vote per share on matters submitted to shareholders for their approval, to
dividends if declared by Research Frontiers, and to share in any
distribution of Research Frontiers' assets. All outstanding shares of
common stock are fully paid for and non-assessable. Holders of
common stock do not have cumulative voting rights or preemptive
rights. Therefore, a minority stockholder may be less able to gain
representation on Research Frontiers' board of directors.
Listing
Our common stock is listed on the Nasdaq National Market under the symbol "REFR"
Transfer Agent and Registrar
Continental Stock Transfer and Trust Company is the transfer agent and registrar
for our common stock.
DESCRIPTION OF WARRANTS
The following description sets forth certain general terms and provisions of
the warrants to which any prospectus supplement may relate. The particular terms
of the warrants offered, the extent, if any, to which the general terms set
forth below apply to the warrants offered, and any modifications or additions to
the general terms as they relate to the warrants offered will be described in a
prospectus supplement.
General
We may issue warrants for the purchase of common stock from
time to time, and we may issue warrants independently or
together with common stock, and the warrants may be attached
to or separate from these securities.
We will describe in the applicable prospectus supplement the
terms of the series of warrants, including:
-the offering price and aggregate number of warrants offered;
-the number of shares of common stock purchasable upon the
exercise of one warrant and the price at which these shares may
be purchased upon such exercise;
-the dates on which the right to exercise the warrants will
commence and expire;
-the effect of any merger, consolidation, sale or other disposition
of our business on the warrant agreement and the warrants;
-the terms of any rights to redeem or call the warrants;
-any provisions for changes to or adjustments in the exercise
price or number of securities issuable upon exercise of the
warrants;
-to the extent material,federal income tax consequences of
holding or exercising the warrants;
-any other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
Before exercising their warrants, holders of warrants will not
have any of the rights of holders of common stock, including
the right to receive dividends, if any, or, payments upon our
liquidation, dissolution or winding up or to exercise voting
rights, if any.
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities
that we specify in the applicable prospectus supplement at the
exercise price that we describe in the applicable prospectus
supplement. Unless we otherwise specify in the applicable
prospectus supplement, holders of the warrants may exercise the
warrants at any time up to 6:00 P.M. Woodbury, New York time
on the expiration date that we set forth in the applicable
prospectus supplement. After the close of business on the
expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering
the warrant certificate representing the warrants to be exercised
together with specified information, and paying the required
amount to the Company in immediately available funds. Upon
receipt of the required payment and the warrant certificate
properly completed and duly executed, we will issue and deliver
the number of shares of common stock purchasable upon such
exercise. If fewer than all of the warrants represented by the
warrant certificate are exercised, then we will issue a new
warrant certificate for the remaining amount of warrants. Unless
we indicate otherwise in the applicable prospectus supplement,
holders of the warrants may surrender securities as all or part of
the exercise price for warrants.
PLAN OF DISTRIBUTION
We may sell the securities being offered hereby in one or more
of the following ways from time to time:
-through dealers or agents to the public or to investors;
-to underwriters for resale to the public or to investors;
- directly to investors; or
- through a combination of such methods.
We will set forth in a prospectus supplement the terms of the
offering of securities, including:
- the name or names of any agents, dealers or underwriters;
- the purchase price of the securities being offered and the
proceeds we will receive from the sale;
- any over-allotment options under which underwriters may
purchase additional securities from us;
- any agency fees or underwriting discounts and other items
constituting agents' or underwriters' compensation;
- any initial public offering price;
- any discounts or concessions allowed or reallowed or paid to
dealers; and
- any securities exchanges on which the securities may be listed
if it is other than the Nasdaq National Market.
Underwriters, dealers and agents that participate in the
distribution of the securities may be deemed to be underwriters
as defined in the Securities Act and any discounts or
commissions they receive from us and any profit on their resale
of the securities may be treated as underwriting discounts and
commissions under the Securities Act. We will identify in the
applicable prospectus supplement any underwriters, dealers or
agents and will describe their compensation. We may have
agreements with the underwriters, dealers and agents to
indemnify them against specified civil liabilities, including
liabilities under the Securities Act. Underwriters, dealers and
agents may engage in transactions with or perform services for
us or our subsidiaries in the ordinary course of their businesses.
Certain persons that participate in the distribution of the
securities may engage in transactions that stabilize, maintain or
otherwise affect the price of the securities, including
over-allotment, stabilizing and short-covering transactions in
such securities, and the imposition of penalty bids, in
connection with an offering. Certain persons may also engage in
passive market making transactions as permitted by Rule 103 of
Regulation M. Passive market makers must comply with applicable
volume and price limitations and must be identified as passive
market makers. In general, a passive market maker must display
its bid at a price not in excess of the highest independent bid
for such security; if all independent bids are lowered below
the passive market maker's bid, however, the passive market
maker's bid must then be lowered when certain purchase
limits are exceeded.
EXPERTS
The financial statements of Research Frontiers as of December 31, 2003
and 2002, and for each of the years in the three-year period ended
December 31, 2003, have been incorporated by reference into this
prospectus and in the registration statement in reliance upon the report of
KPMG LLP, independent certified public accountants, which is also
incorporated by reference into this prospectus, and upon the authority of
KPMG LLP as experts in accounting and auditing.
LEGAL MATTERS
The legality of the securities offered hereby has been passed upon by
the law firm of Kronish, Lieb, Weiner & Hellman LLP.
TABLE OF CONTENTS
Prospectus Cover Page. . . . . . . . . . . . . . . . . . . . . . .1
The Company. . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Available Information. . . . . . . . . . . . . . . . . . . . . . .4
Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . .5
Description of Securities. . . . . . . . . . . . . . . . . . . . .5
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . .6
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . . .6
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 13. Disclosure of Commission Position on Indemnification for
Securities Act Liabilities.
As described in Item 15, the Certificate of Incorporation of Research
Frontiers provides for the indemnification of certain persons. Insofar as
indemnification for liabilities arising under the Securities Act of 1933
(the "Act") may be permitted to directors, officers and controlling
persons of the registrant pursuant to the Certificate of Incorporation or
By-Laws of Research Frontiers, or otherwise, the registrant has been
informed 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.
Item 14. Other Expenses of Issuance and Distribution.
Estimated expenses relating to the distribution of the Common Stock
registered herein are set forth below. Such expenses will be paid by
Research Frontiers.
Registration Fee under the Securities Act of 1933 $ 2,838.08
Nasdaq Listing Fee . . . . . . . . . . . . . . . .$ 20,000.00
Accounting fees and expenses . . . . . . . . . . $ 20,000.00
Miscellaneous expenses. . . . . . . . . . . . . . $ 1,000.00
Total. . . . . . . . . . . . . . . . . . . $ 43,838.08
All of the amounts set forth above, except for the filing fees for the
Securities and Exchange Commission, are estimated and subject to
future contingencies.
Item 15. Indemnification of Directors and Officers.
Article EIGHTH of Research Frontiers' Certificate of Incorporation
provides for the indemnification of Research Frontiers' 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 Research Frontiers' 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 16. Exhibits.
5.1 Opinion re legality of the securities being registered (1)
23.1 Consent of KPMG LLP (Filed herewith).
23.2 Consent of Kronish, Lieb, Weiner & Hellman LLP (included in Exhibit 5.1)
24. Power of Attorney. (1)
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(1) Previously filed as an exhibit to the Registration Statement on Form S-3
(No.333-115052) filed with the Commission on April 30, 2004.
Item 17. Undertakings.
The undersigned registrant undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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 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 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.
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 any employee benefit plan's annual report pursuant to
section 15(d) of the Securities 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.
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-3 and has duly caused this
amendment no. 1 to the registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Woodbury,
State of New York, on November 8, 2004.
RESEARCH FRONTIERS INCORPORATED
(Registrant)
By:/s/ Robert L. Saxe
Robert L. Saxe, Chairman
(Principal Executive Officer)
By:/s/ Joseph M. Harary
Joseph M. Harary, President and Treasurer
(Principal Financial and Accounting 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 dates indicated.
Signature Title Date
/s/ Robert L. Saxe Chairman of the Board, Director November 8, 2004
Robert L. Saxe (Principal Executive Officer)
/s/ Robert M. Budin* Director November 8, 2004
Robert M. Budin
/s/ Joseph M. Harary President, Treasurer, Director November 8, 2004
Joseph M. Harary (Principal Financial and Accounting Officer)
/s/ Victor F. Keen* Director November 8, 2004
Victor F. Keen
/s/ Albert P. Malvino*Director November 8, 2004
Albert P. Malvino
*By: /s/ Joseph M. Harary
Joseph M. Harary, as attorney-in-fact