As filed with the Securities and Exchange Commission on May 5, 2006
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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 this Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act,
check the following box. [ ]
If this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under
the Securities Act, 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 $5.57(1) $11,140,000.00(1) $1,191.98
Warrants to Purchase Common Stock(3) (4) (4) (4)
(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 $5.57 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 Capital Market on April 28, 2006, 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) An indeterminate number of warrants to purchase the shares of Common Stock
registered hereunder.
(4) 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 registration statement filed with the
Securities and Exchange Commission is 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 MAY 5, 2006
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 Capital Market under the
symbol "REFR." The last reported sale price of our common stock on the
Nasdaq Capital Market on April 28, 2006 was $5.45.
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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 , 2006
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, 2005, its total net loss was $58,932,898.
In 2005 our net loss was $3,747,532 and was $4,262,741 in 2004.
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 2007 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 2006. 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. 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 room maintained by the SEC at 100 F Street, N.E.,
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 for the fiscal year ended December 31, 2005,
o the portions of the proxy statement dated April 30, 2006 for our
annual meeting of stockholders to be held on June 8, 2006 that
have been incorporated by reference into our report on Form 10-K
for the fiscal year ended December 31, 2005,
o current report on Form 8-K filed with the SEC on April 20, 2006,
o current report on Form 8-K filed with the SEC on April 28, 2006, and
o the description of the capital stock contained in the Research Frontiers
registration statements on Form 8-A under the Securities Exchange Act of
1934 dated July 31, 1995 and February 24, 2003.
All filings filed by Research Frontiers with the SEC under Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act subsequent to the initial filing of
this prospectus and prior to the termination of the offering or sale of
all of common stock offered under this prospectus 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. 13,812,559 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 Capital 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 Capital 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,
2005 and the year then ended, and the financial statements of
Research Frontiers as of December 31, 2004 and for each of the
years in the two-year period ended December 31, 2004, have
been incorporated by reference into this prospectus and in
the registration statement in reliance upon the reports of
BDO Seidman, LLP and KPMG LLP, respectively, independent
registered public accounting firms, which are also
incorporated by reference into this prospectus, and upon
the authority of BDO Seidman, LLP and 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. Joseph Harary,
an of counsel at Kronish Lieb Weiner & Hellman LLP, is a director of,
and serves as President and General Counsel of, Research Frontiers
and beneficially owns 101,774 shares of Research Frontiers common
stock and options to purchase 512,100 shares of Research Frontier
common stock having a weighted average exercise price of $11.64 per
share. Ralph Sutcliffe, an of counsel at Kronish Lieb Weiner &
Hellman LLP, beneficially owns 31,050 shares of Research Frontiers
common stock.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
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 $ 1,191.98
Nasdaq Listing Fee . . . . . . . . . . . . . . . .$ 20,000.00
Accounting fees and expenses . . . . . . . . . . $ 20,000.00
Miscellaneous expenses. . . . . . . . . . . . . . $ 1,000.00
Total. . . . . . . . . . . . . . . . . . . $ 42,191.98
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. (Filed herewith)
23.1 Consent of BDO Seidman, LLP (Filed herewith).
23.2 Consent of KPMG LLP (Filed herewith).
23.3 Consent of Kronish, Lieb, Weiner & Hellman LLP (included in Exhibit 5.1)
24. Power of Attorney. (Included on signature page)
------------------------------------
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(a) To include any prospectus required by section 10(a)(3) of the Securities
Act of 1933;
(b) 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 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(c) 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, the foregoing paragraphs do not apply if the
registration statement is on Form S-3 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, or is contained in
a form of prospectus filed pursuant to Rule 424(b) that is
part of 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.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(a) If the registrant is relying on Rule 430B:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed
prospectus was deemed part of and included in the
registration statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a
registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a)
of the Securities Act of 1933 shall be deemed to be
part of and included in the registration statement
as of the earlier of the date such form of prospectus
is first used after effectiveness or the date of the
first contract of sale of securities in the offering
described in the prospectus. As provided in Rule
430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such
date shall be deemed to be a new effective date of
the registration statement relating to the securities
in the registration statement to which that prospectus
relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no
statement made in a registration statement or
prospectus that is part of the registration
statement or made in a document incorporated
or deemed incorporated by reference into the
registration statement or prospectus that is
part of the registration statement will, as to
a purchaser with a time of contract of sale
prior to such effective date, supersede or
modify any statement that was made in the
registration statement or prospectus that
was part of the registration statement or
made in any such document immediately prior
to such effective date; or
(b) If the registrant is subject to Rule 430C,
each prospectus filed pursuant to Rule 424(b) as
part of a registration statement relating to an
offering, other than registration statements
relying on Rule 430B or other than prospectuses
filed in reliance on Rule 430A, shall be deemed
to be part of and included in the registration
statement as of the date it is first used after
effectiveness. Provided, however, that no statement
made in a registration statement or prospectus that
is part of the registration statement or made in
a document incorporated or deemed incorporated by
reference into the registration statement or
prospectus that is part of the registration
statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede
or modify any statement that was made in the
registration statement or prospectus that was
part of the registration statement or made in
any such document immediately prior to such
date of first use.
(5) That, for the purpose of determining liability
of the registrant under the Securities Act of 1933
to any purchaser in the initial distribution of
the securities: The undersigned registrant undertakes
that in a primary offering of securities of the
undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser
by means of any of the following communications,
the undersigned registrant will be a seller to
the purchaser and will be considered to offer or
sell such securities to such purchaser:
(a) Any preliminary prospectus or prospectus of
the undersigned registrant relating to the
offering required to be filed pursuant to
Rule 424;
(b) Any free writing prospectus relating to
the offering prepared by or on behalf of the
undersigned registrant or used or referred
to by the undersigned registrant;
(c) The portion of any other free writing
prospectus relating to the offering containing
material information about the undersigned
registrant or its securities provided by or
on behalf of the undersigned registrant; and
(d) Any other communication that is an offer
in the offering made by the undersigned
registrant to the purchaser.
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.
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 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.
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
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Woodbury,State of New York,
on May 2, 2006.
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)
POWER OF ATTORNEY
We the undersigned directors of Research Frontiers Incorporated
each hereby severally constitute and appoint Robert L. Saxe and Joseph
M. Harary, each individually as his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and his
name, place and stead, and in any and all capacities, to sign any and all
amendments to this Registration Statement (including post-effective
amendments, and to file the same, and any subsequent Registration
Statement for the same offering which may be filed under Rule 462(b),
with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting to said
attorneys-in-fact and agents, and each of them, full power and authority
to do and perform such and every act and thing requisite and necessary to
be done, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue thereof.
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 May 2, 2006
Robert L. Saxe (Principal Executive Officer)
/s/ Robert M. Budin Director May 2, 2006
Robert M. Budin
/s/ Joseph M. Harary President, Treasurer, Director May 2, 2006
Joseph M. Harary (Principal Financial and Accounting Officer)
/s/ Victor F. Keen Director May 2, 2006
Victor F. Keen
/s/ Albert P. Malvino Director May 2, 2006
Albert P. Malvino