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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 20, 2012 | ||||||
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REGISTRATION NO. 333-________ | ||||||
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION | ||||||
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WASHINGTON, D.C. 20549 ______________________________
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FORM S-8 | ||||||
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REGISTRATION STATEMENT | ||||||
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STANLEY FURNITURE COMPANY, INC. ______________________________ | ||||||
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(Exact name of Registrant as specified in its charter) | ||||||
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DELAWARE |
54-1272589 | |||||
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(State or other jurisdiction of |
(I.R.S. Employer | |||||
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1641 Fairystone Park Highway Stanleytown, VA 24168 (276) 627-2010 ______________________________ | ||||||
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(Address, including zip code, and telephone number, including area code, | ||||||
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STANLEY FURNITURE COMPANY, INC. 2012 INCENTIVE COMPENSATION PLAN ______________________________ (Full Titles of Plans)
Glenn Prillaman 1641 Fairystone Park Highway Stanleytown, VA 24168 (276) 627-2010 | ||||||
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(Name, address, including zip code, and telephone number, including area, code, of agent for service) | ||||||
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Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act, (check one):
Large accelerated filer ¨ Accelerated filer ¨ Non-accelerated filer x (Do not check if a smaller reporting company) Smaller reporting company ¨ | ||||||
CALCULATION OF REGISTRATION FEE
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Title of Securities to be registered |
Amount to be registered |
Proposed maximum offering price per share |
aggregate offering price |
Amount of registration fee |
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Common Stock, par value $0.02 per share |
1,600,000 |
$4.09(1) |
$6,544,000 |
$749.95 |
(1) Estimated in accordance with Rule 457(h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee based upon the price of $4.09 per share, which represents the average high and low prices per share of the registrant’s common stock as reported on the NASDAQ Stock Market on July 16, 2012.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of this Registration Statement on Form S-8 (the “Registration Statement”) is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”). The documents containing the information specified in Part I will be delivered to the participants in the Stanley Furniture Company, Inc. 2012 Incentive Compensation Plan as required by Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by the registrant with the Securities and Exchange Commission (the “SEC”) are hereby incorporated by reference into this Registration Statement:
(a) The Annual Report on Form 10-K for the year ended December 31, 2011.
(b) Quarterly Reports on Form 10-Q for the quarters ended March 31, 2012 and June 30, 2012.
(c) Current Reports on Form 8-K, filed with the SEC on January 31, 2012 (other than with respect to Item 2.02), March 7, 2012, April 24, 2012 and April 25, 2012.
(c) The description of the Common Stock contained in the Registration Statement on Form 8-A filed with the SEC on October 27, 1992 (File No. 0-14938), as amended by Form 8-A/A filed November 7, 1996.
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a corporation’s board of directors to grant, and authorizes a court to award, indemnity to officers, directors and other corporate agents. Accordingly, Article SIXTH of the Restated Certificate of Incorporation provides that the registrant will, to the full extent permitted by Section 145 of the Delaware General Corporation Law, as amended from time to time, indemnify all persons whom it may indemnify pursuant thereto.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law, the registrant’s Restated Certificate of Incorporation includes provisions that eliminate the personal liability of its directors for monetary damages for breach of their fiduciary duty, except for (i) 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 the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit.
In addition, as permitted by Section 145 of the Delaware General Corporation Law, Section 1 of Article VIII of the amended bylaws of the registrant provides that:
· The registrant shall indemnify each director and officer of the registrant against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed legal proceedings in which such person by reason of the fact such person was an officer or director of the registrant if the person acted in good faith or 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.
· If the legal proceeding, however, is by or in the right of the registrant, the director or officer may not be indemnified in respect of any claim as to which such person shall have been adjudged to be liable for negligence or misconduct in performance of his duty to the registrant unless a court of proper jurisdiction determines otherwise.
· The registrant is required to advance expenses, as incurred, to its directors and officers in connection with defending a proceeding, except that if required under applicable law such director or officer shall undertake to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
The registrant has entered into indemnification agreements with its directors providing for the registrant, among other things, to indemnify each director to the fullest extent permitted by law for certain expenses incurred in a proceeding arising out of service as a director of the registrant or of another company at the request of the registrant, as well as providing for the advancement of such expenses to the director by the registrant. The registrant may also, at the discretion of the board of directors, purchase and maintain directors and officers insurance to insure such persons against certain liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit Number |
Description |
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3.1 |
The Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Form 10-Q (Commission File No. 0-14938) for the quarter ended July 2, 2005). |
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3.2 |
By-laws of the Registrant as amended (incorporated by reference to Exhibit 3.1 to the Registrant’s Form 8-K (Commission File No. 0-14938) filed February 3, 2010). |
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4.1 |
Stanley Furniture Company, Inc. 2012 Incentive Compensation Plan (incorporated by reference to Exhibit A to Registrant’s Proxy Statement (Commission File No. 0-14938) for the annual meeting of stockholders held April 18, 2012).* |
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5.1 |
Opinion of McGuireWoods LLP.* |
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23.1 |
Consent of Independent Registered Public Accounting Firm.* |
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23.2 |
Consent of McGuireWoods LLP (included in the opinion filed as Exhibit 5.1). |
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24.1 |
Power of Attorney (included in the signature page to the Registration Statement). |
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* Filed herewith.
Item 9. Undertakings.
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement;
(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)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference herein.
(b) 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
REGISTRANT SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Stanleytown, Virginia, on July 20, 2012.
STANLEY FURNITURE COMPANY, INC.
By: s/Glenn Prillaman
Glenn Prillaman
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and/or officers of Stanley Furniture Company, Inc., hereby severally constitute and appoint Glenn Prillaman and Micah S. Goldstein and each of them singly, our true and lawful attorneys, with full power to any of them, and to each of them singly, to sign for us and in our names in the capacities indicated below the Registration Statement on Form S-8 filed herewith, and any and all pre-effective and post-effective amendments to said Registration Statement, and to file or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as each of them might or could do in person, and hereby ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue of this power of attorney.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on July 20, 2012.
Signature Title(s) Date
s/Michael P. Haley Chairman and Director July 20, 2012
Michael P. Haley
s/Glenn Prillaman President and Chief Executive July 20, 2012
Glenn Prillaman Officer (Principal Executive Officer)
and Director
s/Micah S. Goldstein Chief Operating and Financial Officer July 20, 2012
Micah S. Goldstein and Secretary (Principal Financial and
Accounting Officer) and Director
s/Dominic P. Dascoli Director July 20, 2012
Dominic P. Dascoli
s/T. Scott McIlhenny, Jr. Director July 20, 2012
T. Scott McIlhenny, Jr.
Exhibit 5.1
McGuireWoods LLP
One James Center
Richmond, Virginia 23219
July 20, 2012
Stanley Furniture Company, Inc.
1641 Fairystone Park Highway
Stanleytown, VA 24168
Ladies and Gentlemen:
We have acted as counsel to Stanley Furniture Company, a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration Statement”), to be filed by the Company with the Securities and Exchange Commission (the “SEC”) in connection with the registration under the Securities Act of 1933, as amended (the “Act”), of 1,600,000 shares of the Company’s Common Stock, par value $.02 per share (the “Shares”) reserved for issuance under the Stanley Furniture Company, Inc. 2012 Incentive Compensation Plan (the “Plan”). This opinion letter is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K promulgated under the Act.
Documents Reviewed
In connection with this opinion letter, we have examined the Registration Statement. In addition we have examined and relied upon the following:
(i) a certificate from the assistant secretary of the Company certifying as to (A) true and correct copies of the Restated Certificate of Incorporation and Bylaws of the Company, as amended (the “Organizational Documents”) and (B) the resolutions of the Board of Directors of the Company adopted January 31, 2012;
(ii) a certificate dated July 18, 2012 issued by the Secretary of State of the State of Delaware, attesting to the corporate status and good standing of the Company in the State of Delaware (the “Status Certificate”); and
(iii) originals, or copies identified to our satisfaction as being true copies, of such other records, documents and instruments as we have deemed necessary for the purposes of this opinion letter.
“Applicable Law” means the laws of the State of Delaware and the relevant laws of the United States.
Assumptions Underlying Our Opinions
For all purposes of the opinions expressed herein, we have assumed, without independent investigation, the following:
(a) Factual Matters. To the extent that we have reviewed and relied upon (i) certificates of the Company or authorized representatives thereof and (ii) certificates and assurances from public officials, all of such certificates, representations and assurances are accurate with regard to factual matters.
(b) Authentic and Conforming Documents. All documents submitted to us as originals are authentic, complete and accurate, and all documents submitted to us as copies conform to authentic original documents.
Our Opinions
Based on and subject to the foregoing and the exclusions, qualifications, limitations and other assumptions set forth in this opinion letter, we are of the opinion that:
1. Organizational Status. Based solely upon its Status Certificate, the Company is a validly existing corporation under the laws of the State of Delaware, and is in good standing under such laws.
2. Power and Authority. The Company has the corporate power and authority to issue the Shares.
3. Validity. When the Shares have been issued and sold as contemplated by the Plan against any payment therefor in accordance with the Plan, the Shares will be validly issued, fully paid and nonassessable.
Qualifications and Limitations Applicable to Our Opinions
The opinions set forth above are limited to the Applicable Law, and we do not express any opinion concerning any other law.
Miscellaneous
The foregoing opinion is being furnished only for the purpose referred to in the first paragraph of this opinion letter. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and for the use of our name wherever appearing in the Registration Statement.. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations of the SEC promulgated thereunder.
Very truly yours,
/s/ McGuireWoods LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 31, 2012 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in Stanley Furniture Company, Inc.'s Annual Report on Form 10‑K for the year ended December 31, 2011.
PricewaterhouseCoopers LLP
Richmond, VA
July 20, 2012