S-8 POS 1 rwc_s8pos.htm POST EFFECTIVE AMENDMENT NO. 2 Blueprint
 
 As filed with the Securities and Exchange Commission on June 15, 2017 
 Registration No. 333-147354
                                                                                                                               

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
 
POST-EFFECTIVE AMENDMENT NO. 2 TO
FORM S-8 REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 
RELM WIRELESS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
 
Nevada
59-3486297
(State or Other Jurisdiction of
Incorporation or Organization)  
(I.R.S. Employer
Identification No.)
 
7100 Technology Drive
West Melbourne, Florida 32904
(Address of Principal Executive Offices, Including Zip Code)
 
RELM Wireless Corporation 2007 Incentive Compensation Plan
RELM Wireless Corporation 2017 Incentive Compensation Plan
(Full Title of the Plans)
 
William P. Kelly
Executive Vice President and Chief Financial Officer
RELM Wireless Corporation
7100 Technology Drive
West Melbourne, Florida 32904
 (321) 984-1414
 (Name, Address, and Telephone Number, Including Area Code, of Agent For Service)
 
With a copy to:
Jurgita Ashley
Thompson Hine LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114
(216) 566-8928
_________________________________________________________________
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
 
Large accelerated filer
☐
Accelerated filer
☐
Non-accelerated filer
☐ (Do not check if a smaller reporting company)
Smaller reporting company
☑
 
Emerging growth company
☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act ☐
 
 
EXPLANATORY STATEMENT
 
On November 13, 2007, RELM Wireless Corporation (the “Registrant”) filed a registration statement on Form S-8 (Registration No. 333-147354) (as amended, the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) to register 800,000 common shares, par value $.60 per share, of the Registrant (“Common Shares”) available for issuance under the RELM Wireless Corporation 2007 Incentive Compensation Plan (the “Prior Plan”). The Registrant paid the requisite registration fee at that time to register the securities.
 
On June 15, 2017 (the “Approval Date”), the stockholders of the Registrant approved the RELM Wireless Corporation 2017 Incentive Compensation Plan (the “New Plan”). Under the terms of the New Plan, effective as of the Approval Date, no new Common Shares may be issued under the Prior Plan and any Common Shares that were authorized for issuance but remain unissued under the Prior Plan and any Common Shares which may be issued in connection with outstanding awards under the Prior Plan that are forfeited, cancelled, surrendered, settled in cash or otherwise terminated after the Approval Date shall become eligible for issuance under the New Plan.
 
Accordingly, pursuant to the undertaking in Item 512(a)(1)(iii) of Regulation S-K that the Registrant disclose a material change in the plan of distribution as it was originally disclosed in the Registration Statement, the Registrant is filing this Post-Effective Amendment No. 2 to the Registration Statement to reflect that, as of the Approval Date, the Common Shares available for issuance under the Registration Statement will no longer be issued under the Prior Plan and may instead become available for issuance under the New Plan.
 
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
 
The Registrant has sent or given, or will send or give, documents containing the information specified by Part I of the Registration Statement to participants in the New Plan, as specified in Rule 428(b)(1) promulgated by the Commission under the Securities Act of 1933, as amended (the “Securities Act”). Such documents need not be filed with the Commission, but these documents constitute (along with the documents incorporated by reference into the Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act.
 
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
 
Item 3.
Incorporation of Documents by Reference.
 
The following documents, which are on file with the Commission, are incorporated by reference into the Registration Statement (except for the portions of the Registrant’s Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 thereof or otherwise not filed with the Commission which are deemed not to be incorporated by reference into the Registration Statement):
 
1.
The Registrant’s Annual Report on Form 10-K for the Registrant’s fiscal year ended December 31, 2016;
 
2.
The Registrant’s Quarterly Report on Form 10-Q for the Registrant’s quarter ended March 31, 2017;
 
 
2
 
 
3.
The Registrant’s Current Reports on Form 8-K filed with the Commission on January 10, 2017, January 17, 2017, January 18, 2017, February 6, 2017, March 21, 2017, May 9, 2017 and June 15, 2017; and
 
4.
The description of the Registrant’s Common Stock, par value $0.60 per share, contained in the Registrant’s Registration Statements filed with the Commission pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendments or reports filed for the purpose of updating that description.
 
In addition, all documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than those furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K or other information “furnished” to the Commission) prior to the filing of a post-effective amendment to the Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in the Registration Statement and to be part hereof from the time of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of the Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.
 
Item 4. Description of Securities.
 
The securities to be offered are registered under Section 12 of the Exchange Act and, accordingly, no description is provided hereunder.
 
Item 5. Interests of Named Experts and Counsel.
 
Not applicable.
 
Item 6. Indemnification of Directors and Officers.
 
The Registrant is incorporated under the laws of the State of Nevada. Section 78.138 of the Nevada Revised Statutes (“NRS”) provides that, subject to certain exceptions under Nevada law, unless the articles of incorporation or an amendment thereto provides for greater individual liability, a director or officer is not individually liable to the Registrant or its stockholders or creditors for any damages as a result of any act or failure to act in his or her capacity as a director or officer unless it is proven that (i) the director’s or officer’s act or failure to act constituted a breach of his or her fiduciary duties as a director or officer and (ii) the breach of those duties involved intentional misconduct, fraud or a knowing violation of law. The Registrant’s Bylaws further provide that a director shall not be personally liable for monetary damages for any action taken, or failure to take any action, unless (a) the director breached or failed to perform the duties of his or her office as provided in the NRS; and (b) the breach or failure to perform constituted self-dealing, willful misconduct or recklessness. In addition, the Registrant’s Articles provide that the personal liability of the directors of the Registrant is eliminated to the fullest extent permitted by the NRS.
 
Under Section 78.7502 of the NRS, the Registrant may 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, except an action by or in the right of the Registrant, by reason of the fact that the person is or was a director, officer, employee or agent of the Registrant, or is or was serving at the request of the Registrant 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 the action, suit or proceeding if such person: (i) is not liable pursuant to Section 78.138 of the NRS; or (ii) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful. Further, the Registrant may 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 Registrant 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 Registrant, or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by the person in connection with the defense or settlement of the action or suit if such person: (i) is not liable pursuant to NRS Section 78.138; or (ii) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Registrant. However, indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction to be liable to the Registrant or for amounts paid in settlement to the Registrant, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper. To the extent that a director, officer, employee or agent of the Registrant has been successful on the merits or otherwise in defense of any action, suit or proceeding subject to the Nevada indemnification laws, or in defense of any such claim, issue or matter, the Registrant is required to indemnify him or her against expenses, including attorneys’ fees, actually and reasonably incurred by him or her in connection with the defense. The Registrant’s Articles and Bylaws comply with the Nevada law as set forth above.
 
 
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As permitted by Nevada law, the Registrant’s Bylaws authorize the Registrant to advance expenses (including attorneys’ fees) incurred by a director or officer in defending any civil, criminal action or proceeding in advance of the final disposition of the action or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined that the director or officer is not entitled to be indemnified by the Registrant.
 
Indemnification, unless ordered by a court pursuant to Section 78.7502 of the NRS or for the advancement of expenses as described above, may not be made to or on behalf of any director or officer if a final adjudication establishes that the director’s or officer’s acts or omissions involved intentional misconduct, fraud or a knowing violation of the law and was material to the cause of action.
 
The Registrant is authorized under Nevada law to purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a director, officer, employee or agent of the Registrant, or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, for any liability asserted against him or her and liability and expenses incurred by him or her in his or her capacity as a director, officer, employee or agent, or arising out of his or her status as such, whether or not the Registrant has the authority to indemnify him or her against such liability and expenses.
 
Under the terms of the Registrant’s directors’ and officers’ liability and company reimbursement insurance policies, directors and officers of the Registrant are insured against certain liabilities, including liabilities arising under the Securities Act.
 
Item 7.
Exemption from Registration Claimed.
 
Not applicable.
 
 
 
4
 
Item 8.   
Exhibits.
 
The exhibits to this Post-Effective Amendment No. 2 to the Registration Statement are listed in the Exhibit Index to this Post-Effective Amendment No. 2 to the Registration Statement, which Exhibit Index is incorporated herein by reference.
 
Item 9.    
Undertakings.
 
(a)  
The undersigned Registrant hereby undertakes:
 
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to the 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 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; and
 
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.
 
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the 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 Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(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 Commission such indemnification is against public policy as expressed in the Securities 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.
 
 
5
 
 
SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Post-Effective Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of West Melbourne, State of Florida, on the 15th day of June, 2017.
 
 
RELM WIRELESS CORPORATION
 
 
 
 
 
 
By:  
/s/ Timothy A. Vitou
 
 
 
Timothy A. Vitou 
 
 
 
President 
 

Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities and on the date indicated.
 
Name
 
Title
 
Date
 
 
 
 
 
/s/ Timothy A. Vitou
 
President
 
June 15, 2017
Timothy A. Vitou
 
(Principal Executive Officer)   
 
 
 
 
 
 
 
/s/ William P. Kelly
 
Executive Vice President and Chief Financial Officer
 
June 15, 2017
William P. Kelly
 
  (Principal Financial Officer and Principal Accounting Officer)
 
 
 
 
 
 
 
/s/ D. Kyle Cerminara*
 
Chairman of the Board of Directors and Director
 
June 15, 2017
D. Kyle Cerminara
 
 
 
 
 
 
 
 
 
/s/ Lewis M. Johnson*
 
Director
 
June 15, 2017
Lewis M. Johnson
 
 
 
 
 
 
 
 
 
/s/ E. Gray Payne*
 
Director
 
June 15, 2017
E. Gray Payne
 
 
 
 
 
 
 
 
 
/s/ Charles T. Lanktree*
 
Director
 
June 15, 2017
Charles T. Lanktree
 
 
 
 
 
 
 
 
 
/s/ Ryan R.K. Turner*
 
Director
 
June 15, 2017
Ryan R.K. Turner
 
 
 
 
 
 
 
 
 
/s/ John W. Struble*
 
Director
 
June 15, 2017
John W. Struble
 
 
 
 
 
 
 
 
 
/s/ Michael R. Dill*
 
Director
 
June 15, 2017
Michael R. Dill
 
 
 
 
 
*By:  
/s/ William P. Kelly
       
William P. Kelly
             
Attorney-In-Fact
            
 
 
6
 
EXHIBIT INDEX
 
 
Exhibit Number
 
 
Description of Exhibit
 
Articles of Incorporation (incorporated by reference to Exhibit 3(i) to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 1997).
 
 
 
 
Certificate of Amendment to Articles of Incorporation (incorporated by reference to Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2001).
 
 
 
 
Amended and Restated Bylaws (incorporated by reference to Exhibit 3(iii) to the Registrant’s Current Report on Form 8-K filed May 29, 2013).
 
 
 
 
Amendment to Bylaws dated December 9, 2015 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed December 10, 2015).
 
 
 
 
RELM Wireless Corporation 2007 Incentive Compensation Plan (incorporated by reference to Annex G to the Registrant’s Definitive Proxy Statement on Schedule 14A filed April 5, 2007, relating to the 2007 annual stockholders’ meeting).
 
 
 
 
RELM Wireless Corporation 2017 Incentive Compensation Plan (incorporated by reference to Exhibit 4.5 to the Registrant’s Registration Statement on Form S-8 filed June 15, 2017).
 
 
 
 
Form of Stock Option Agreement under the RELM Wireless Corporation 2017 Incentive Compensation Plan (incorporated by reference to Exhibit 4.6 to the Registrant’s Registration Statement on Form S-8 filed June 15, 2017).
 
 
 
 
Form of Restricted Share Agreement under the RELM Wireless Corporation 2017 Incentive Compensation Plan (incorporated by reference to Exhibit 4.7 to the Registrant’s Registration Statement on Form S-8 filed June 15, 2017).
 
 
 
 
Form of Restricted Stock Unit Agreement under the RELM Wireless Corporation 2017 Incentive Compensation Plan (incorporated by reference to Exhibit 4.8 to the Registrant’s Registration Statement on Form S-8 filed June 15, 2017).
 
 
 
 
Power of Attorney.