As filed with the Securities and Exchange Commission on December 16, 2013.
Registration No. ________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE STANDARD REGISTER COMPANY
(Exact Name of Registrant as Specified in its Charter)
Ohio (State of Other Jurisdiction of Incorporation of Organization) | 31-0455440 (I.R.S. Employer Identification No.) |
600 Albany Street
Dayton, Ohio 45417
(937) 221-1000
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Gerard D. Sowar Esq.
Executive Vice President, General Counsel & Secretary
The Standard Register Company
P. O. Box 1167
600 Albany Street
Dayton, Ohio 45417-3405
(937) 221-1940
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
with a copy to:
Charles F. Hertlein, Jr.
DINSMORE & SHOHL LLP
First Financial Center
255 E. 5th Street, Suite 1900
Cincinnati, Ohio 45202
(513) 977-8315
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. ¨
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.
Large accelerated filer ¨
Accelerated filer
¨
Non-accelerated filer ¨
Smaller reporting company
[x]
(Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered | Amount to be Registered (1),(2) | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee |
Common stock, $1.00 par value per share | 3,679,389 | $6.46(3) | $23,768,852 | $3,061.43 |
(1)
Pursuant to Rule 416, the securities being registered hereunder include such indeterminate number of additional shares of common stock as may be issuable as a result of stock splits, stock dividends or similar transactions.
(2)
All of the shares of common stock offered hereby are for the account of the selling security holders.
(3)
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based on the average of the high and low sale price of the Registrant’s common stock as reported on the New York Stock Exchange on December 12, 2013.
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 said Section 8(a), may determine.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE SELLING SECURITY HOLDERS 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 JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DECEMBER 16, 2013
PROSPECTUS
3,679,389 Shares
THE STANDARD REGISTER COMPANY
Common Stock
This prospectus relates to the resale by the selling security holders named herein of up to 3,679,389 shares of our common stock which we issued upon the selling security holders exercise on or about October 25, 2013 of certain stock purchase warrants which we issued to the selling security holders in connection with our purchase of the business and assets of WorkflowOne, LLC in August 2013. We are not selling any shares of common stock in this offering and therefore will not receive any proceeds from this offering. However, we will bear all of the expenses and fees incurred in registering the shares offered by this prospectus as required by the terms of the registration rights agreement between the selling security holders and Standard Register.
Our common stock is quoted on the New York Stock Exchange under the symbol “SR.” The last reported sale price of our common stock on December 12, 2013 was $6.59 per share.
The shares included in this prospectus may be sold by the selling security holders from time to time, in one or more transactions, in negotiated transactions or otherwise, at market prices prevailing at the time of sale, or at negotiated prices. See “Plan of Distribution” beginning on page 10.
INVESTING IN THE OFFERED SECURITIES INVOLVES RISKS. YOU SHOULD READ THIS PROSPECTUS, ANY PROSPECTUS SUPPLEMENT AND ALL OTHER INFORMATION INCLUDED OR INCORPORATED BY REFERENCE INTO THIS PROSPECTUS CAREFULLY BEFORE YOU INVEST, INCLUDING THE RISK FACTORS WHICH BEGIN ON PAGE 4 OF THIS PROSPECTUS.
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.
THE DATE OF THIS PROSPECTUS IS December __, 2013.
TABLE OF CONTENTS
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATION
1
PROSPECTUS SUMMARY
3
THE OFFERING
4
RISK FACTORS
4
USE OF PROCEEDS
11
SELLING SECURITY HOLDERS
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PLAN OF DISTRIBUTION
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WHERE YOU CAN FIND MORE INFORMATION
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INCORPORATION BY REFERENCE OF CERTAIN DOCUMENTS
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LEGAL MATTERS
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INDEPENDENT ACCOUNTANTS
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DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATION
All statements included in this prospectus and the documents incorporated herein by reference, other than statements of historical fact, are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended. Forward-looking statements can generally be identified by words such as “may,” “could,” “will,” “should,” “assume,” “expect,” “anticipate,” “plan,” “intend,” “believe,” “predict,” “estimate,” “forecast,” “outlook,” “potential,” or “continue,” or the negative of these terms, and other comparable terminology. Examples of forward-looking statements made herein and in the documents incorporated by reference herein include, but are not limited to, statements regarding:
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decline in traditional print and related services
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adoption of electronic health records (EHR)
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expansion in our solutions
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future pension funding requirements
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investing in our employees
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2013 priorities
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future financial condition, revenue trends, and cash flows
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projected costs or cost savings related to our restructuring plans
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2013 capital expenditures
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business strategy.
Because forward-looking statements deal with future events, actual results for fiscal year 2013 and beyond could differ materially from our current expectations depending on a variety of factors including, but not limited to:
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unanticipated problems with the integration of WorkflowOne into Standard Register
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our access to capital for expanding our solutions
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the pace at which digital technologies and EHR adoption erode the demand for certain products and services
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the success of our plans to deal with the threats and opportunities brought by digital technology and EHR adoption
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results of cost-containment strategies and restructuring programs
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our ability to attract and retain key personnel
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variation in demand and acceptance of the Company's products and services
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frequency, magnitude, and timing of paper and other raw material price changes
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timing of the completion and integration of future acquisitions
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general business and economic conditions beyond our control
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consequences of competitive factors in the marketplace including the ability to attract and retain customers
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our ability to meet debt covenants.
Although we believe the expectations and intentions reflected in our forward-looking statements are reasonable, we cannot assure you that these expectations and intentions will prove to be correct. Various risks and other factors, including those identified in this prospectus under the “Risk Factors” section and those included in our other public filings that are incorporated herein by reference, could cause actual results, and actual events that occur, to differ materially from those contemplated by the forward looking statements.
Many of the risk factors are beyond our ability to control or predict. You should not unduly rely on any of our forward-looking statements. These statements are made only as of the date of this prospectus. Except as required by law, we are not obligated to publicly release any revisions to these forward-looking statements to reflect future events or developments. All subsequent written and oral forward-looking statements attributable to us and persons acting on our behalf are qualified in their entirety by the cautionary statements contained in this section and elsewhere in this prospectus.
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PROSPECTUS SUMMARY
The following summary highlights selected information contained in or incorporated by reference into this prospectus. This summary does not contain all the information you should consider before investing in the securities. Before making an investment decision, you should carefully read the entire prospectus, including the documents incorporated by reference.
About Standard Register
The Standard Register Company (referred to in this report as the “Company,” “we,” “us,” “our,” or “Standard Register”) is a publicly-traded company that began operations in 1912 in Dayton, Ohio. Our common stock is traded on the New York Stock Exchange (NYSE) under the symbol SR.
Standard Register is a recognized leader in the management and execution of mission-critical communications. Our mission is to be trusted by the world's leading organizations to build and protect their reputations. We use a century of industry expertise, leading technologies, and a compelling portfolio of solutions to help companies advance their reputations through expert management and flawless execution of critical communications. Many of our traditional printed documents and administrative forms are being replaced by digital technology advances. Our expertise in operational workflow and specific experience in key market segments where these products have been used, is increasingly enabling us to create new solutions and access new opportunities.
We serve our customers through a combination of field-based sales, telesales, strategic partners, and the web. Each approach is customized to meet the needs of the customer being served. Our products are distributed to end-users through the U.S. Postal Service, direct shipment to the customer, through a network of couriers, or electronically. Many of our custom-printed documents require warehousing for subsequent delivery to our customers in the quantity, time, and place of their choosing. We provide a network of distribution centers across the country that allows us to optimally service our customers. Increasingly, we are supporting the migration of print to a digital network that relies less on warehousing, but leverages the range of distribution options available. Leveraging our SMARTworks technology, customers can configure, procure, distribute, and manage both printed and electronic documents from their desktop. Warehousing and distribution services are part of the products and services offered by each segment.
We operate two business units, Healthcare and Business Solutions, which are organized based upon their customer base and the principle markets they serve. In addition, in August 2013 we completed the acquisition of the business and assets of WorkflowOne, LLC, which provides a wide range of products and services including business documents, electronic print and mail solutions, branded merchandise, label solutions, sales and marketing collateral, and distribution services. We are now in the process of integrating the former WorkflowOne business into Standard Register.
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THE OFFERING
Securities Offered | This offering involves up to 3,679,389 shares of our common stock, including 2,645,945 shares which we issued to certain of the selling security holders upon their exercise of warrants which they received in connection with our acquisition of the WorkflowOne assets in August 2013 and 1,033,444 shares held by certain other selling shareholders whose holdings predated the WorkflowOne acquisition. The selling security holders may from time to time offer and sell any or all of the shares under this prospectus; however, the selling security holders are not obligated to sell the shares. |
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Capital Stock Outstanding | Both before and after the offering our outstanding capital stock is and will be 944,996 shares of Class A stock and 8,230,346 shares of common stock. |
Use of Proceeds | We will not receive any proceeds from the sale by the selling security holders of the shares covered by this prospectus. |
Risk Factors | An investment in the common stock offered under this prospectus is highly speculative and involves a number of risks. You should carefully consider the information contained in the “Risk Factors” section beginning on page 4 of this prospectus and elsewhere in this prospectus and in the information we incorporate by reference before making your investment decision. |
RISK FACTORS
Investment in any business involves inherent risks and uncertainties. In addition to the other information presented in this prospectus and our other filings with the Securities and Exchange Commission which are incorporated into this prospectus by reference, and beyond the risks and uncertainties of ordinary business operations, important factors that could cause our actual results to differ materially from our past results, include the following.
Unanticipated problems with the integration of the WorkflowOne business and assets could depress our revenues and earnings.
We completed the acquisition of WorkflowOne’s assets and business in August 2013, and are now in the early stages of integrating WorkflowOne’s personnel and business with those of Standard Register. WorkflowOne and its predecessors were long-time vigorous competitors with Standard Register. In structuring and completing our acquisition of WorkflowOne, we believed that by combining the two competing organizations we could effect significant cost savings and other synergies while retaining most of the combined revenues, thereby improving the combined company’s prospects in a declining industry. It is too early to accurately predict the success of the integration efforts, and it is possible we could encounter unforeseen problems with the integration process, for example due to incompatibilities between the two organizations or residual effects from the history of vigorous competition between the two. Any such unanticipated problems with the integration process could have a negative impact on the revenues or earnings of the combined organization.
Even if the integration of WorkflowOne is successful, the combined business may nevertheless continue to decline in the face of the overall market decline in demand for the services and products we offer.
For the reasons discussed in the other risk factors in this prospectus, our business is at risk due to declining demand for some printed transactional documents and forms as they are replaced by electronically conducted transactions and delivery. Even if the integration of WorkflowOne into Standard Register is completely successful and free of
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unanticipated problems, the combined business may nevertheless continue to decline due to external market forces beyond our control. Such declines could impact the ability meet financial covenants, attract customers or advance the business.
Electronic transactions may continue to erode the demand for our printed business documents.
Many of our custom-printed documents help companies conduct transactions, control their internal business processes and facilitate the flow of information with customers. The increasing consumer adoption of electronic transactions and delivery of information will continue to reduce the number of printed documents sold. Moreover, the documents that will continue to coexist with software applications will likely contain less value-added print content.
These factors may continue to reduce our customers’ demand for printed documents and require us to gain market share to maintain or increase our current level of print-based revenue. We operate in a very competitive industry and we may not be successful in gaining market share, in which case the rate of decline in revenue could outpace our rate of cost reduction, lowering our margins.
Excess capacity in the document printing industry may increase pricing pressure and reduce our gross margins.
As demand for printed business materials declines, the industry has excess capacity, which increases competition based on pricing. Weakened market prices negatively impact our margins. Our strategy is to provide good value for our prices and not compete based on pricing alone. As some printed documents are further commoditized, we could lose customers to competitors who price below market to gain sales.
Although we have endeavored to continually improve productivity and reduce our cost structure in an effort to maintain a competitive position, there is no guarantee that we will be able to do so successfully in the future. Consequently, our margins could be unfavorably impacted.
Our plans to deal with the threats and opportunities brought by digital technology may not be successful.
Digital technology poses a significant threat to sales of some printed documents that we offer, but it also provides significant opportunities to expand the products and services that we offer that are related to the overarching purpose of printed documents: communication.
As our traditional printed products come under increasing pricing pressure, we are endeavoring to separately price and sell related software and services. These include document design, application software, software support, consulting, program management and other services that we believe our customers need and will value.
In 2011, we introduced a market-facing strategy in those industries where we have deep experience and knowledge. We have been re-structuring our organization and its products and services around becoming more than a printing partner for our customers. We are combining our traditional printing with software and services including electronic design, delivery and measurement of communication programs to offset the decline in demand for printed documents with sales of broader technology communication solutions used in marketing, patient communication, sales and retail promotion. Some of these services have traditionally been bundled into printed product sales and others have been sold at a highly discounted price. Other services have been developed to leverage our market experience. While we believe this strategy has growth potential, success will depend on our ability to invest the required capital, and changes in behavior on the parts of our sales representatives and customers. There is no guarantee that sales of these new products and services will result in the level of sales increases needed to offset declines in printed material orders.
Market forces as well as the integration of WorkflowOne are likely to result in additional restructuring charges. Margins on traditional products could suffer if we do not successfully realize market share gains or productivity improvements in the future to offset the effects of declining unit sales and weaker pricing. We have eliminated unprofitable business and aggressively reduced costs in an effort to maintain a competitive position. These actions
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produced significant restructuring and impairment charges as we reduced staffing levels, and resulted in excess production capacity and other operating costs.
A significant downturn in the general economy could adversely affect our revenue, gross margin and earnings.
Our business could be unfavorably affected by changes in national or global economic conditions, including inflation, interest rates, availability of capital markets, consumer spending rates and the effects of governmental plans to manage economic conditions. The demand for many of our printed documents, and hence our revenue and gross margin, is strongly correlated with general economic conditions and with the level of business activity of our customers. Economic weakness and constrained customer spending has resulted in the past, and may result in the future, in decreased revenue, gross margin, earnings, or growth rates. We also have experienced, and may experience in the future, gross margin declines reflecting the effects of increased pressure for price concessions as our customers attempt to lower their cost structures. In this environment, we may not be able to reduce our costs sufficiently to maintain our margins.
Fluctuations in the cost of paper and other raw materials may adversely affect customer demand. We may not be able to pass through increases in the cost of paper costs or may experience several quarters of delay in recovering higher paper costs.
Paper is a commodity that is subject to periodic increases or decreases in price, with all major paper mills setting their prices within a narrow band at any point in time. There is no effective futures market to cost-effectively insulate us against unexpected changes in price, and corporate-negotiated purchase contracts provide only limited protection against price increases.
When paper prices are increased, we attempt to recover the higher costs by raising the prices of our printed products. Since each order is custom-printed to each customer’s specification, the price increase varies by product and customer and is accomplished by individual negotiation between the sales representative and the buyer.
In the price-competitive marketplace in which we operate, the sales representative may not be able to pass through any or all of the higher paper cost, or more likely, may experience some negotiated delay in achieving the higher price. In addition, we have contracts with some customers that limit the amount and frequency of price increases. To the extent we cannot recover the full cost increase, our gross margins would be reduced. We have generally been successful in the past in recovering higher paper costs, albeit with some delay; there is no guarantee, however, that this experience will be repeated in the future.
We may make larger contributions to our pension plans in the future, diverting cash from other corporate purposes.
Our qualified defined benefit pension plan is underfunded by $230 million. In addition, we are required to contribute $24.7 million to our qualified pension plans in 2013 and $36.4 million in 2014. Required contributions beyond 2014 are projected to decline. The funded status of our pension plan and the related level of contributions are dependent upon many factors, including returns on invested assets and the level of certain market interest rates. Declines in the market value of the securities held by plans, as experienced in prior years, could materially reduce the funded status of the plans and increase the level of expected required pension contributions in future years. Market conditions may lead to changes in the discount rate used to value the year-end benefit obligations of the plans, which could further increase the level of required pension contributions in future years. If an economic downturn were to continue for an extended period of time, our costs and required cash contributions associated with pension plans may increase in future periods. If we were unable to meet required pension obligations, we would be in default under both our term and asset backed loans, as well as lien filings by the Pension Benefit Guaranty Corporation.
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Failure to attract and retain qualified personnel may result in difficulties in managing our business effectively and meeting revenue growth objectives.
Our success in efforts to grow our business depends on the contributions and abilities of key executives, operating officers and other personnel. If we are unable to retain and motivate our existing employees and attract qualified personnel to fill key positions, we may not be able to manage our business effectively including the development of both existing and new products and services. Success in meeting our revenue and margin objectives also depends in large part on our ability to attract, motivate, and retain highly qualified personnel in sales and information management positions. Competition for such personnel is intense and there can be no assurance that we will be successful in attracting, motivating and retaining such personnel. Any inability to hire and retain salespeople or any other qualified personnel, or any loss of the services of key personnel, could harm our business.
Steps that have been or may be taken to restructure our business and align our resources with market opportunities may not be effective or could disrupt our business.
Over the past several years, we have undertaken several actions designed to restructure our business and to reduce future operating costs. These actions have included reductions in workforce, plant and office closures and internal reorganizations of our sales force to better match our resources with market opportunities. The completion of these activities or the introduction of additional restructuring programs could be disruptive to our business. Reductions to headcount and other cost cutting measures could result in the loss of technical expertise that could adversely affect our plans for growth and development of new and existing products and services.
Any additional restructuring efforts to reduce components of operating expense that may occur in the future would most likely result in additional restructuring or asset impairment charges. If this were to occur, our earnings per share or net loss per share would be adversely affected in such period.
There are inherent limitations in all control systems, and misstatements due to error or fraud may occur and may not be detected.
While we continue to take action to ensure compliance with the disclosure controls and other requirements of the Sarbanes-Oxley Act of 2002 and the related SEC and NYSE rules, there are inherent limitations in our ability to control all circumstances. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. In addition, the design of a control system must reflect the fact that there are resource constraints and the benefit of controls must be evaluated in relation to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, in our Company have been detected. These inherent limitations include the realities that judgments in decision making can be faulty and that breakdowns can occur because of simple error or mistake. Further, controls can be circumvented by individual acts of some persons, by collusion of two or more persons, or by management override of the controls. The design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Over time, a control may be inadequate because of changes in conditions or the degree of compliance with the policies or procedures may deteriorate.
Our level of indebtedness could impair our financial condition and prevent us from fulfilling our business obligations.
We currently have total indebtedness of approximately $273 million, which requires principal and interest payments. Our level of indebtedness could affect our future operations, for example by:
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requiring a substantial portion of our cash flow from operations to be dedicated to the payment of principal and interest on indebtedness instead of funding working capital, capital expenditures, acquisitions, and other business purposes;
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making it more difficult for us to satisfy all of our debt obligations, thereby increasing the risk of triggering a cross-default provision;
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increasing our vulnerability to economic downturns or other adverse developments;
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limiting our ability to obtain additional financing for working capital, capital expenditures, acquisitions, pension obligations or other corporate purposes in the future; and
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increasing our cost of borrowing to satisfy business needs.
We may be unable to service or refinance our debt.
Our ability to make scheduled principal and interest payments, or reduce or refinance, our indebtedness will depend on our future financial and operating performance, and prevailing market conditions. Our future performance will be affected in part by the impact of general economic, financial, competitive and other factors beyond our control, including the availability of financing in the banking and capital markets. We cannot be certain that our business will generate sufficient cash flow from operations in an amount necessary to service our debt. An increase in interest rates would make it more difficult to service our debt. If we are unable to meet our debt obligations or to fund our other liquidity needs, we will be required to restructure or refinance all or a portion of our existing debt to avoid defaulting and meet other business needs. Such a refinancing of our indebtedness could result in higher interest rates and require us to comply with more onerous covenants that further restrict our business operations. Further, refinancing opportunities could be restricted by another one of our debt instruments outstanding or may not be available at all.
The terms of our indebtedness impose restrictions on our operating and financial flexibility.
Our first and second lien notes and asset backed loan contain various covenants that limit our ability to, among other things:
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incur or guarantee additional indebtedness;
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make restricted payments, including dividends and prepaying indebtedness;
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permit certain liens;
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enter into business combinations and asset sale transactions;
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make investments, including capital expenditures;
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amend organizational documents and change accounting methods;
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enter into transactions with affiliates; and
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enter into new businesses.
These restrictions could limit our ability to obtain future financing, make acquisitions or incur needed capital expenditures, withstand a future downturn in our business or the economy in general, conduct operations or otherwise take advantage of business opportunities that may arise. Our first and second lien notes also contain financial covenants including a maximum leverage ratio, minimum fixed charge ratio, and minimum EBITDAP (earnings before interest, taxes, depreciation, amortization, and pension income) levels with which we must maintain compliance at all times. Our asset backed loan also contains a fixed charge coverage covenant that is only applicable below 12.5% of liquidity. Our ability to meet these financial ratios may be affected by events beyond our control, such as further deterioration in general economic conditions. Our failure to maintain applicable financial ratios, in certain circumstances, would prevent us from borrowing additional amounts, and could result in a default. A default could cause the indebtedness outstanding to become immediately due and payable. If we are unable to repay those amounts, the lenders under our credit facility could initiate a bankruptcy or liquidation proceeding, or proceed against the collateral granted to them which secures that indebtedness.
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Failure to comply with privacy laws could subject us to liability and damage our reputation.
In connection with our business we use, process and store customer information that could include confidential, personal or financial information. Privacy laws in many jurisdictions where we do business, as well as contractual provisions with our customers, require that we safeguard this information. While we have security systems, processes and procedures in place that are designed to protect against unauthorized access to such information, there is no guarantee that experienced computer hackers will not be able to gain access to our systems and misappropriate confidential information or that there won’t be a failure in our process that results in the disclosure of confidential information. Any failure to comply with these laws, or any violations of data privacy, disclosure of other confidential information or failure to comply with contract provisions could damage our reputation and business and subject us to a significant liability.
Risks Related to Our Common Stock
The price of our common stock has been and may continue to be volatile, and such volatility could adversely affect our business and cause our shareholders to suffer significant losses.
The price at which our common stock will trade may be volatile due to various factors, many of which are beyond our control, including the following:
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changes in our industry;
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increased competition and competitive pricing pressures;
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our ability to execute our business plan;
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actual or anticipated fluctuations in our financial condition or annual or quarterly results of operations;
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changes in investors’ and financial analysts’ perception of the business risks and conditions of our business;
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changes in, or our failure to meet, earnings estimates and other performance expectations of investors or financial analysts;
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changes in the market valuations of companies in our industry viewed as similar to us;
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future sales of our common stock;
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general domestic and international economic conditions; and
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realization of any of the risks described or referred to in this prospectus (or in reports we file with the SEC) under “Risk Factors.”
In addition, the equity markets have from time to time experienced significant price and volume fluctuations that are unrelated to the operating performance of particular companies. These broad market fluctuations may result in a material decline in the market price of our common stock and it may be difficult for you to sell your shares at an attractive price.
We have no present intention to pay dividends on our common stock and, even if we change that policy, we may be unable to pay dividends on our common stock.
We currently do not anticipate paying any dividends on our common stock in the foreseeable future. We currently intend to retain future earnings, if any, to finance operations and invest in our business. Any declaration and payment of future dividends to holders of our common stock will be at the discretion of our board of directors and will depend on many factors, including our financial condition, earnings, capital requirements, level of indebtedness, statutory and contractual restrictions applying to the payment of dividends and other considerations that our board of directors deems relevant.
If we change that policy and commence paying dividends, we will not be obligated to continue paying those dividends and our shareholders will not be guaranteed, or have contractual or other rights, to receive dividends. If we
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commence paying dividends in the future, our board of directors may decide, in its discretion, at any time, to decrease the amount of dividends, otherwise modify or repeal the dividend policy or discontinue entirely the payment of dividends. Under the Ohio law, our board of directors may not authorize the payment of a dividend unless it is either paid out of our statutory surplus.
The low trading volume of our common stock may adversely affect the price of our shares.
Although our common stock is listed on the New York Stock Exchange, our common stock has experienced low trading volume. Limited trading volume may subject our common stock to greater price volatility and may make it difficult for investors to sell shares at a price that is attractive to them.
We may in the future seek to raise funds through equity offerings, which could have a dilutive effect on our common stock.
In the future we may determine to raise capital through offerings of our common stock, securities convertible into our common stock or rights to acquire these securities or our common stock. For instance, we are authorized to issue up to 101,000,000 shares of common stock and up to 9,450,000 shares of Class A stock. The result of sales of such securities would ultimately be dilutive to our common stock by increasing the number of shares outstanding. We cannot predict the effect this dilution may have on the price of our common stock.
Sales of large amounts of our common stock or the perception that sales could occur may depress our stock price.
The market price of our common stock could decline as a result of sales of a large number of shares of common stock in the market or the perception that such sales could occur. These sales, or the possibility that these sales may occur, also might make it more difficult for us to issue equity securities in the future at a time and at a price that we deem appropriate. As of November 24, 2013, we had approximately 8,230,346 shares of common stock outstanding, of which approximately 68% were freely tradable on the New York Stock Exchange. After giving effect to this offering nearly all of our shares of common stock outstanding will be freely tradable on the New York Stock Exchange, although certain shares held by affiliates which are not included in this prospectus may be subject to limitations on the volume of permitted sales at any one time in accordance with Securities and Exchange Commission Rule 144.
In addition, pursuant to a registration rights agreement, we have granted the selling security holders and certain of the Majority Shareholders the right to cause us, in certain instances, at our expense, to file registration statements under the Securities Act of 1933, as amended, covering resales of our common stock held by them or to piggyback on a registration statement in certain circumstances. Collectively, these shares represent approximately 45% of our outstanding shares of common stock as of the date of this prospectus. To the extent that such registration rights are exercised, the resulting sale of a substantial number of shares of our common stock into the market could cause the market price of our common stock to decline. These shares also may be sold pursuant to Rule 144 under the Securities Act, depending on their holding period and subject to restrictions in the case of shares held by persons deemed to be our affiliates. As restrictions on resale end, the market price of our common stock could also decline if the holders of restricted shares sell them or are perceived by the market as intending to sell them.
Other Risk Factors
There are numerous other factors, many of which are outside of our control, which could adversely impact our financial condition, cash flows, and results of operations. Such factors include: adverse events such as natural disasters; large scale medical outbreaks; acts of international or domestic terrorism; and international, political and military developments. Among other things, such factors could provoke economic uncertainty which could reduce demand for, and consumer spending on, our products; price increases in commodities such as paper, which would increase our product
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costs; and legal and regulatory developments that could impact how we operate. Any of these factors could have a material adverse effect on our business.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the common stock by the selling security holders pursuant to this prospectus. All proceeds from the sale of the shares will be for the account of the selling security holders.
SELLING SECURITY HOLDERS
We are registering the 2,645,945 shares of common stock we issued to the selling security holders upon their exercise of stock purchase warrants they received in connection with our acquisition of the assets and business of WorkflowOne as well as 1,033,444 shares held by certain of the Majority Shareholders, at their request pursuant to a registration rights agreement they entered into with us, in order to permit the selling security holders to offer the shares for resale in the open market from time to time.
The selling security holders, including their transferees, pledgees or donees or their successors or others who may later hold the selling security holders’ interests, may from time to time offer and sell the shares of common stock offered by this prospectus. The selling security holders may sell all, some or none of their shares in this offering. The selling security holders are under no obligation to sell any of the shares of common stock offered pursuant to this prospectus. The selling security holders may also sell, transfer or otherwise dispose of all or a portion of the shares of common stock held by them in transactions exempt from the registration requirements of the Securities Act or pursuant to another effective registration statement covering those securities. See “Plan of Distribution.” For a description of any position, office or any other material relationship a selling security holder has had with us or our affiliates during the past three years, see our most recently filed definitive proxy statement and our annual report on Form 10-K filed with the SEC and the documents incorporated by reference herein, including our Report on Form 8-K filed with the SEC on October 24, 2013. See “Where You Can Find More Information” and “Incorporation by Reference of Certain Documents.”
The following table sets forth certain information as of November 24, 2013 (unless otherwise noted) concerning, among other things, the number of shares of common stock that may be offered from time to time by each selling security holder pursuant to this prospectus. As of November 24, 2013, we had 8,230,346 shares of common stock and 944,996 shares of Class A stock issued and outstanding. The information is based on information provided by or on behalf of the selling security holders. Because the selling security holders may sell all, part or none of the shares of common stock held by them, no estimates can be given as to the number of shares of common stock that will be held by each selling security holder upon termination of any offering made hereby. We have assumed for purposes of the table below that the selling security holders will sell all of their shares of common stock that may be sold under this prospectus, and that any other shares of our common stock beneficially owned by the selling security holders prior to the offering will continue to be beneficially owned after the offering.
Information about the selling security holders may change over time. In particular, the selling security holders identified below may have sold, transferred or otherwise disposed of all or a portion of their shares since the date on which they provided to us information regarding their beneficial ownership in transactions exempt from the registration requirements of the Securities Act. Any changed or new information given to us by the selling security holders will be set forth in supplements to this prospectus or amendments to the registration statement of which this prospectus is a part, if and when necessary.
Common Stock Beneficially Owned(1) | |||||||||
Name of Selling Security Holder | Number of Shares | Percent of Ownership | Voting Percentage(2) | Number of Shares of Common Stock Offered | |||||
DLJ Investment Partners, LP | 111,939 | 1.22% | .86% | 111,939 | |||||
DLJ Investment Partners II, LP | 251,896 | 2.75% | 1.94% | 251,896 | |||||
DLJIP II Holdings, LP | 79,415 | 0.87% | .61% | 79,415 | |||||
Fifth Third Bank, Trustee(3) | 514,382 | 5.61% | 3.97% | 514,382 | |||||
Fifth Third Bank, Trustee(4) | 519,062 | 5.66% | 4.01% | 519,062 | |||||
Silver Point Capital Fund, L.P.(5) | 916,563 | 9.99% | 7.07% | 916,563 | |||||
SPCP Group III, LLC(5) | 13,646 | 0.15% | .11% | 13,646 | |||||
SPCP Group, LLC(5) | 1,130,463 | 12.32% | 8.73% | 1,130,463 | |||||
SPF CDO I, Ltd.(5) | 142,023 | 1.55% | 1.10% | 142,023 | |||||
(1)
Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission, and includes voting or investment power with respect to shares, as well as any shares as to which the selling security holder has the right to acquire beneficial ownership through the exercise or conversion of any stock option, warrant, preferred stock or other right within 60 days of the date of this prospectus. Notwithstanding the foregoing, the table does not identify a selling security holder as the beneficial owner of shares held by another selling security holder listed in the table. Unless otherwise indicated below, to our knowledge, all selling security holders named in the table have sole voting and investment power with respect to their shares of common stock.
(2)
The “Percent of Ownership” and “Voting Percentage” amounts in the table above are as of November 24, 2013 and include both shares of Common Stock and shares of Class A Stock. As of such date, the outstanding number of shares of Common Stock was 8,230,346 shares and the outstanding number of shares of Class A Stock was 944,996. Each outstanding share of Common Stock entitles its holder to one vote per share and each outstanding share of Class A Stock entitles its holder to five votes per share. The “Voting Percentage” column shows each selling shareholder’s combined voting power percentage for the two classes voting together.
(3)
Trustee of the Trust Indenture created by William C. Sherman dated December 29, 1939.
(4)
Trustee of the Testamentary Trust created under Item III(c) of the Last Will and Testament of William C. Sherman, deceased.
(5)
Silver Point Capital, L.P. (“Silver Point”) is the investment manager of Silver Point Capital Fund, L.P., SPF CDO I, Ltd and SPCP Group, LLC (the “SP Funds”) and as a result, has sole voting and investment power over the shares held by the SP Funds. Silver Point Capital Management, LLC ("Silver Point Management") is the general partner of Silver Point. Silver Point Management is also the investment manager of SPCP Group III, LLC (“SPCP Group III”) and by virtue of such status, has sole voting and investment power over the shares held by SPCP Group III. Because Edward A. Mulé and Robert J. O’Shea are the members of Silver Point Management, they may be deemed to have voting and investment power over the shares held, directly or indirectly, by the SP Funds and SPCP Group III.
* Percentage ownership is less than 1%.
This prospectus may be used only by the selling security holders identified above to sell the shares of common stock opposite each respective selling security holder’s name in the column entitled “Number of Shares of Common Stock Offered.” This prospectus may not be used by any selling security holder not named in this prospectus, including
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transferees, pledgees or donees of the selling security holders named above, prior to the effectiveness of the registration statement of which this prospectus is a part. Prior to any use of this prospectus in connection with an offering of the common stock by any unnamed security holder or future transferees, pledgees or donees from such unnamed security holders, the registration statement, of which this prospectus is a part, will be amended, as required, to set forth the name and other information about such selling security holder. Additional information for the named security holders and the information for transferees, pledgees or donees of the named security holders will be provided by supplements to this prospectus, absent circumstances indicating the change is not material. The supplement or amendment will also disclose whether any security holder selling in connection with such supplement or amendment has held any position or office with, been employed by or otherwise had a material relationship with, us or any of our affiliates during the three years prior to the date of the supplement or amendment, if such information has not been previously disclosed.
PLAN OF DISTRIBUTION
We are registering the shares of common stock to permit the resale of the shares by the selling security holders, from time to time after the date of this prospectus. We will not receive any proceeds from the sale by the selling security holders of the shares of common stock.
The selling security holders and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions, directly or through one or more underwriters, broker-dealers or agents. These sales may be at fixed prices, prevailing market prices at the time of sale, prices related to such prevailing market prices, varying prices determined at the time of sale or negotiated prices. The selling security holders may use any one or more of the following methods when selling shares:
•
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
•
block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;
•
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
•
an exchange distribution in accordance with the rules of the applicable exchange;
•
privately negotiated transactions;
•
short sales;
•
broker-dealers may agree with the selling security holders to sell a specified number of such shares at a stipulated price per share;
•
through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
•
through put or call transactions relating to the shares;
•
a combination of any such methods of sale; and
•
any other method permitted pursuant to applicable law.
In connection with the sale of our common stock or interests therein, the selling security holders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling security holders may also sell shares of our common stock short and deliver these securities to close out their short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling security holders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares
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such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The selling security holders may also sell shares under Rule 144 under the Securities Act of 1933, as amended, if available, rather than under this prospectus.
The selling security holders may also engage in short sales against the box, puts and calls and other transactions in our securities or derivatives of our securities and may sell or deliver shares in connection with these trades.
Broker-dealers engaged by the selling security holders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling security holders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated. The selling security holders do not expect these commissions and discounts to exceed what is customary in the types of transactions involved. The selling security holders and any broker-dealers or agents that are involved in selling the shares of common stock may be deemed to be “underwriters” within the meaning of the Securities Act of 1933, as amended, in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act of 1933, as amended.
The selling security holders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933, as amended, amending the list of selling security holders to include the pledgee, transferee or other successors in interest as selling security holders under this prospectus.
To the extent required by the Securities Act of 1933, as amended, or the rules and regulations thereunder, the selling security holders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling security holder for purposes of this prospectus and may sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933, as amended, amending the list of selling security holders to include the pledgee, transferee or other successors in interest as selling security holders under this prospectus.
We are required to pay all fees and expenses incident to the registration of the shares of common stock; however, each selling security holder will pay all underwriting discounts, selling commission and similar selling expenses, if any. We have agreed to indemnify the selling security holders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act of 1933, as amended.
The selling security holders have advised us that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their shares of common stock, nor is there an underwriter or coordinating broker acting in connection with a proposed sale of shares of common stock by any selling shareholder. If we are notified by any selling security holder that any material arrangement has been entered into with a broker-dealer for the sale of shares of common stock, if required, we will file a supplement to this prospectus. If the selling security holders use this prospectus for any sale of the shares of common stock, they will be subject to any applicable prospectus delivery requirements of the Securities Act, as amended.
In order to comply with the securities laws of certain states, sales of securities offered hereby to the public in such states may be made only through broker-dealers who are registered or licensed in such states. Sales of securities offered hereby must also be made by the selling security holders in compliance with other applicable state securities laws and regulations.
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Each selling security holder and any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M under the Securities Exchange Act of 1934, as amended, which may limit the timing of purchases and sales of any of the securities by the selling security holder and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the securities to engage in market-making activities with respect to the securities. All of the foregoing may affect the marketability of the securities and the ability of any person or entity to engage in market-making activities with respect to the securities.
There can be no assurance that any selling security holder will sell any or all of the securities registered pursuant to the registration statement, of which this prospectus forms a part.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information reporting requirements of the Securities Exchange Act of 1934, as amended. Accordingly, we file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission. Our filings with the Securities and Exchange Commission are available to the public over the Internet at the Securities and Exchange Commission’s web site at www.sec.gov. You may also read and copy any document we file at the Securities and Exchange Commission’s public reference rooms located at 100 F Street, N.E., Washington, D.C.
Please call the Securities and Exchange Commission at 1-800-SEC-0330 for further information on the public reference rooms and their copy charges. Also, using our website, www.standardregister.com, you can access electronic copies of documents we file with the Securities and Exchange Commission, including our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K, and any amendments to those reports, free of charge. Information on our website is not incorporated by reference in this prospectus.
INCORPORATION BY REFERENCE OF CERTAIN DOCUMENTS
The Securities and Exchange Commission allows us to “incorporate by reference” in this prospectus certain information we file with the Securities and Exchange Commission, which means that we may disclose important information in this prospectus by referring you to the document that contains the information. The information incorporated by reference is considered to be an integral part of this prospectus, and information that we file later with the Securities and Exchange Commission will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the Securities and Exchange Commission under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, until the termination of the offering (excluding, unless otherwise provided herein or therein, information furnished pursuant to Item 2.02 and Item 7.01 of any Current Report on Form 8-K):
•
our Annual Report on Form 10-K for the fiscal year ended December 30, 2012, filed with the Securities and Exchange Commission on March 8, 2013 (as revised in our Current Report on Form 8-K filed with the Securities and Exchange Commission on December 16, 2013);
•
our Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2013, June 30, 2013 and September 29, 2013, filed with the Securities and Exchange Commission on May 7, 2013, August 9, 2013 and November 12, 2013, respectively;
•
our Current Reports on Form 8-K filed with the Securities and Exchange Commission on December 16, 2013; October 30, 29, 25, 7 and 2, 2013; August 2, 2013 (as amended October 15, 2013); May 9, 2013; April 30 and 29, 2013; March 26, 2013; and February 27 and 22, 2013;
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•
the description of our common stock contained in our Form 8-A Registration Statement effective with the Securities and Exchange Commission on May 13, 1996, including any amendment or report filed for the purpose of updating that description; and
•
all documents filed by us with the Securities and Exchange Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, on or after the date of this prospectus and before we stop offering the securities covered by this prospectus.
Notwithstanding the foregoing, information and documents that we elect to furnish, but not file, or have furnished, but not filed, with the Securities and Exchange Commission in accordance with its rules and regulations is not incorporated into this prospectus and does not constitute a part hereof.
Upon written or oral request, at no cost we will provide to each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all of the information that has been incorporated by reference in the prospectus but not delivered with the prospectus. Inquiries should be directed to:
Gerard D. Sowar
Executive Vice President,
General Counsel and Secretary
600 Albany Street
Dayton, Ohio 45417
(937) 221-1000
In addition, you may access these filings on our Web site at www.standardregister.com.
LEGAL MATTERS
The validity of the shares of common stock offered hereby has been passed upon for us by Dinsmore & Shohl LLP, Cincinnati, Ohio.
INDEPENDENT ACCOUNTANTS
The consolidated financial statements of The Standard Register Company as of December 30, 2012 and January 1, 2012, and for each of the fiscal years in the two-year period ended December 30, 2012, have been incorporated by reference herein in reliance upon the report of Battelle Rippe Kingston LLP (formerly Battelle & Battelle LLP), an independent registered public accounting firm, and upon the authority of said firm as experts in accounting and auditing.
The audited historical consolidated financial statements of Workflow Holdings LLC included in Exhibit 99.1 of The Standard Register Company’s Current Report on Form 8-K dated August 1, 2013 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Chapter 1701 of the Ohio Revised Code (the Ohio General Corporation Law) permits a corporation to indemnify its officers and directors against all expense, liability and loss reasonably incurred by reason of the fact that he or she is or was a director or officer, or was serving at the request of our company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise provided a determination is made that such indemnification is permitted under the applicable standards under the Ohio General Corporation Law. This indemnification includes the right to have our company pay the expenses incurred in defending any such proceeding in advance of its final disposition. Our code of regulations provides that the indemnification permitted under Ohio law will
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be mandatory if it is determined that the officer or director in question was not and has not been adjudicated to have been negligent or guilty of misconduct in the performance of his duty to the Company, that the officer or director acted in good faith in what he or she reasonably believed to be in the best interests of the Company’ that in any matter which is the subject of a criminal action, suit, or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful; and in the case of any amounts paid in settlement, such settlement is or was reasonable and in the interest of the Company.
The rights accruing to any person under Ohio law and our code of regulations do not exclude any other right to which any such person may lawfully be entitled, and we may indemnify or pay expenses to such person in any proper case, even though not specifically provided for by our amended and restated bylaws and our amended and restated certificate of incorporation.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions, 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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution
The following statement sets forth the estimated amounts of expense to be borne by us in connection with the sale and distribution of the securities being offering hereby (except any underwriting commissions and discounts):
Securities and Exchange Commission Registration Fee | $3,061.43 | |
Accounting Fees and Expenses | 20,000.00 | * |
Legal Fees and Expenses | 15,000.00 | * |
Miscellaneous | 798.44 | |
Total Expenses | $38,000.00 |
*Estimated
Item 15.
Indemnification of Directors and Officers
Section 1701.13(E) of the Ohio Revised Code gives a corporation incorporated under the laws of Ohio authority to indemnify or agree to indemnify any person who is or was a director, officer, employee or agent of that corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, non-profit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against expenses, including attorney’s fees, judgments, fines, and amounts paid in settlement, actually and reasonably incurred by that person in connection with 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, to which the person was, is or may be made a party because of being or having been such director, officer or employee, provided, in connection with that position, that such person is determined to have acted in good faith and in a manner 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, if that person had no reasonable cause to believe his or her conduct was unlawful, that, in the case of an action or suit by or in the right of the corporation, (i) no negligence or misconduct in the performance of duty to the corporation shall have been adjudged unless, and only to the extent that, a court determines, upon application, that, despite the adjudication of liability, but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity, and (ii) the action or suit is not one in which the only liability asserted against a director is pursuant to Section 1701.95 of the Ohio Revised Code, which relates to unlawful loans, dividends and distributions of assets.
Section 1701.13(E) further provides that to the extent that such person has been successful on the merits or otherwise in defense of any such action, suit, or proceeding, or in defense of any claim, issue or matter therein, that person shall be indemnified against expenses, including attorneys’ fees, actually and reasonably incurred by him or her in connection with that role. Section 1701.13(E) further provides that unless at the time of a director’s act or omission, the articles of incorporation or the code of regulations of a corporation state by specific reference to Section 1701.13(E) that Section 1701.13(E) does not apply to the corporation, and unless the only liability asserted against a director is pursuant to Section 1701.95 of the Ohio Revised Code, expenses, including attorney’s fees, incurred by a director in defending such an action, suit or proceeding shall be paid by the corporation as they are incurred, in advance of the final disposition of such action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director in which he or she agrees to (i) repay such amounts if it is proved by clear and convincing evidence in a court of competent jurisdiction that such director’s action, or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the corporation or undertaken with reckless disregard for the best interests of the corporation and (ii) reasonably to cooperate with the corporation concerning said action, suit or proceeding. Section 1701.13(E) also provides that the indemnification
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permitted by that section shall not be exclusive, and shall be in addition to, any other rights that directors, officers or employees may have, including rights underinsurance purchased by the corporation. Registrant’s Code of Regulations provide for the indemnification of directors and officers of Registrant to the fullest extent permitted by law. In addition, Standard Register enters into indemnification agreements with its directors.
The above is a general summary of certain provisions of Standard Register’s Code of Regulations and of the Ohio Revised Code and is subject in all respects to the specific and detailed provisions of Standard Register’s Code of Regulations and the Ohio Revised Code. Standard Register maintains insurance policies insuring its directors and officers against certain obligations that may be incurred by them.
Item 16.
Exhibits
(a)
The exhibits listed in the Exhibit Index immediately preceding the exhibits are filed as part of this Registration Statement on Form S-3.
Item 17.
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 this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
(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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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)(1)(i), (a)(1)(ii) and (a)(1)(iii) 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, as amended, 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 this registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, as amended, 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.
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(4)
That, for the purpose of determining liability under the Securities Act of 1933, as amended, to any purchaser: 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.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934, as amended (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, as amended) 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 of 1933, as amended, 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 Securities and Exchange 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 Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Dayton, State of Ohio, on December 16, 2013.
THE STANDARD REGISTER COMPANY
(Registrant)
By: /s/ Joseph P. Morgan, Jr.
Joseph P. Morgan, Jr., President
and Chief Executive Officer
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Power of Attorney
Each director and officer of the Registrant whose signature appears below hereby appoints Gerard D. Sowar and Robert M. Ginnan, and each of them individually, as his or her true and lawful attorney-in-fact and agent to sign in his name and behalf, in any and all capacities stated below, and to file with the Securities and Exchange Commission, any and all amendments, including post-effective amendments and any registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act, to this registration statement, and the Registrant hereby also appoints each such person as its attorney-in-fact and agent with like authority to sign and file any such amendments in its name and behalf.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated:
Signature | Title | Date | |
/s/Joseph P. Morgan, Jr. | President, Chief Executive Officer and Director (Principal Executive Officer) | December 16, 2013 | |
Joseph P. Morgan, Jr. | |||
/s/Robert M. Ginnan | Executive Vice President, Treasurer, Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | December 16, 2013 | |
Robert M. Ginnan | |||
/s/F. D. Clarke, III | Chairman of the Board and Director | December 16, 2013 | |
F. D. Clarke, III | |||
/s/R. W. Begley, Jr. | Director | December 16, 2013 | |
R. W. Begley, Jr. | |||
/s/J. D. Klapstein | Director | December 16, 2013 | |
J. D. Klapstein | |||
December 16, 2013 | |||
/s/R. E. McCarthey | Director | ||
R. E. McCarthey | |||
/s/A. J. DiNello | Director | December 16, 2013 | |
A. J. DiNello | |||
/s/R. A. Peiser | Director | December 16, 2013 | |
R. A. Peiser | |||
/s/J. J. Schiff, Jr. | Director | December 16, 2013 | |
J. J. Schiff, Jr. | |||
/s/J. Q. Sherman II | Director | December 16, 2013 | |
J. Q. Sherman II |
22
Item 16.
Exhibits and Financial Statement Schedules.
(a)
EXHIBIT INDEX
The following exhibits are filed with this Registration Statement:
3.1 | Amended Articles of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3.1 of Registrant’s Quarterly Report on Form 10-Q filed with the SEC on August 9, 2013). |
3.2* | Amended and Restated Code of Regulations of the Registrant. |
4.1 | Specimen Common Stock Certificate (incorporated herein by reference to Exhibit 4.1 of the Registrant’s Registration Statement on Form 10 (File No. 000-49629), which was filed with the Securities and Exchange Commission on February 13, 2002). |
5.1* | Opinion of Dinsmore & Shohl LLP, legal counsel to Registrant. |
23.1* | Consent of Battelle Rippe Kingston LLP (formerly Battelle & Battelle LLP) |
23.2* 23.3* | Consent of Dinsmore & Shohl LLP (included in Exhibit 5.1) Consent of PricewaterhouseCoopers LLP |
24.1 | Power of Attorney (included in signature page of this registration statement) |
* Filed herewith
23
Exhibit 3.2
CODE OF REGULATIONS
OF
THE STANDARD REGISTER COMPANY
AS AMENDED THROUGH OCTOBER 24, 2013
ARTICLE I
SHARES
Section I. Certificate for Shares. Each shareholder of the corporation, whose stock is paid up, shall be entitled to have issued to him in his name or in the name of a nominee of his choosing and designated by him in writing delivered to the Secretary of the corporation an appropriate certificate or certificates certifying the number of paid-up shares of the corporation's capital stock of each authorized class issued to him and registered in his name or in the name of his nominee on the corporate books. Where such shareholder's stock interests are held in trust by Trustees duly appointed, qualified and acting, such shares shall be issued in the name of such Trustee or Trustees and/or their successor trustee or trustees. The corporation will furnish and maintain, or cause to be furnished and maintained, through registrars and transfer agents appointed for the purpose, appropriate and sufficient certificates of each class of stock authorized by the Articles of Incorporation, together with stock records correctly reflecting the ownership of all shares of each class issued and outstanding. Each certificate shall be issued in the numerical order of its class, shall be consecutively numbered within its class and shall be signed by the President and by the Secretary, or in their absence, by any Vice President and by any Assistant Secretary of the corporation. Where a certificate is countersigned by an incorporated transfer agent or registrar, the signature of any of said officers of the corporation may be facsimile, engraved, stamped or printed. Although any officer of the corporation whose manual or facsimile signature is affixed to such a certificate ceases to be such officer before the certificate is delivered, such certificate nevertheless shall be effective in all respects when delivered. A full and separate record shall be maintained for certificates of each class and each certificate as issued shall be entered on the stock records of the appropriate class therefor, which records
shall show the number of each certificate, the number and class of shares represented thereby, the date of issuance, the name of the stockholder and, if the certificate be issued upon a transfer of shares, the name of the person from whom transferred and the serial number and class of each certificate surrendered for transfer. Notwithstanding anything to the contrary contained in this Article I, the Board of Directors also may provide by resolution that some or all of any or all classes and series of shares of the corporation shall be uncertificated shares; provided, however, that such resolution shall not apply to (a) shares represented by a certificate until such certificate is surrendered to the corporation in accordance with applicable provisions of Ohio law or (b) any certificated security of the corporation issued in exchange for an uncertificated security in accordance with applicable provisions of Ohio law.
Section 2. Transfer of Shares. Subject to any applicable provisions of law or of the Articles, or of these Regulations, transfer of shares of the corporation shall be made only upon its books upon surrender by the holder thereof and duly authorized by him in person or by his attorney in fact, and, if such shares are issued in certificate form, must be accompanied by the surrender of the certificates properly endorsed, containing appropriate signature guaranties, and accompanied by appropriate documentary tax stamps or funds for the payment of applicable transfer taxes. Certificates so surrendered shall be cancelled and the corporation shall make or shall cause its transfer agents to make appropriate entry of all such transfers upon the stock records of the corporation.
Section 3. Transfer Agents and Registrars. The Board of Directors may, from time to time, appoint and remove one or more agents to keep the records of the corporation's shares and to transfer or register (or both) such shares in such place, and with such powers, not inconsistent with law, the Articles or these Regulations, as the Board of Directors may deem proper.
Section 4. Lost, Destroyed or Mutilated Certificates. If any certificate for shares of the corporation becomes worn, defaced, mutilated, lost, stolen or destroyed, the Board of Directors shall have power to provide for the issuance of a new certificate in lieu thereof
2
for the same number of shares of the same class. In the case of a certificate which is worn, defaced or mutilated, a new certificate shall be issued to the person entitled thereto if the Board of Directors, or any officer or agent designated by the Board of Directors for such purpose, shall be satisfied that the worn, defaced or mutilated certificate has been surrendered for cancellation. In the case of a certificate which is lost, stolen or destroyed, a new certificate shall be issued to the person entitled thereto, but only upon presentation of proof satisfactory to the Board of Directors, or any officer or agent designated by the Board of Directors for the purpose, of the loss, theft or destruction, and upon the indemnification of the corporation and any transfer agent and registrar in an amount and in a manner deemed satisfactory by the Board of Directors, or such officer or agent.
Section 5. Record Dates. For any lawful purpose, including, without limitation, the determination of the shareholders who are entitled to: (a) receive notice of or to vote at a meeting of shareholders; (b) receive payment of any dividend or distribution; (c) receive or exercise rights of purchase of or subscriptions for or, exchange or conversion of, shares or other securities, subject to contract rights with respect thereto; or (d) participate in the execution of written consents, waivers or releases; the Board of Directors may fix a record date which shall not be a date earlier than the date on which the record date is fixed and, in the cases provided for in clauses (a), (b) and (c) above, shall not be more than 60 days preceding the date of the meeting of shareholders, or the date fixed for the payment of any dividend or distribution, or the date fixed for the receipt or the exercise of rights, as the case may be.
Section 6. Holders of Record. The corporation shall be entitled to recognize the exclusive rights of a person registered on its books as the owner of shares to receive dividends, to vote and give waivers and consents as such owner, and for all other purposes, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by applicable law.
3
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Annual Meeting of Shareholders. There shall be an annual meeting of the shareholders which shall be held at the principal office of the corporation located at 600 Albany Street, in the City of Dayton, Ohio, or at such other place within or without the State of Ohio as shall be designated by the notice for such annual meeting, hereinafter provided for, within 120 days following the close of the calendar year at 11:00 o'clock A.M., each year, but if said day be a legal holiday, such meeting shall be held at the same hour on the next succeeding business day. At such annual meeting, the Board of Directors shall be elected; the statements and records required by law to be reviewed shall be laid before the shareholders; and any other business which is properly brought before said meeting may be transacted.
Section 2. Special Meetings. Special meetings of the shareholders shall be held at the principal office of the corporation at Dayton, Ohio, or at such other place or places within or without the State of Ohio as shall be designated by the notice of such special meeting, hereinafter provided for, whenever called in writing by the President, or in the case of his absence, death, disability, or refusal, by a Vice President authorized to exercise the powers of the President; by the Directors by action at a meeting or by a majority of the Directors acting without a meeting; by persons who hold 25% or more of all the shares of any class of stock of the corporation issued and outstanding and entitled to vote there at or by the Secretary of the corporation. Such call shall state the objections and purposes of such meeting, and shall conform with the requirements of these Regulations.
Section 3. Notice of Shareholders' Meetings. Written or printed notice of every shareholders' meeting (unless waived by the shareholders as provided by law) shall be either personally delivered or sent by letter duly mailed in a United States Post Office with postage prepaid to every shareholder of record entitled to receive notice of such meeting at his address appearing on the stock records of the corporation not less than
4
ten (10) nor more than sixty (60) days before the date fixed for such meeting. Notice given by mail shall be deemed to be given at the time the notice is mailed. Notices of such meetings shall be given either by the President, a Vice President, Secretary or Assistant Secretary of the corporation; or in their absence or refusal to sign, (1) by a majority of members of the Board of Directors acting with or without a meeting, or (2) by shareholders who hold not less than 25% of all the shares of any class of stock of the corporation outstanding and entitled to vote a such meeting. Every notice of any meeting of shareholders shall specify the time and place thereof, and the purpose or purposes for which it is called, and except at an annual meeting, no business shall be transacted except that specified in the notice unless all the shareholders shall be present there at in person or by an attorney in fact duly authorized to act as fully in all respects as the shareholders might if personally present, all of whom shall consent to the transaction of such unannounced business. Notice of adjournment of a meeting need not be given if the time and place to which it is adjourned are fixed and announced at such meeting.
Section 4. Waiver of Notice of Meeting. Unless otherwise provided by law, any shareholder may waive notice of any shareholders' meeting, either by writing specifying the date and place of the meeting, and signed and filed with the Secretary of the corporation, or entered upon the records of the meeting either before, during or after such meeting, or by attendance at such meeting either in person or by proxy. Such written waiver, or such attendance either in person or by proxy shall remedy any defect in notice, and such waiver or attendance by all shareholders shall permit the holding of such meeting without notice.
Section 5. Adjournments. The holders of shares entitling them to exercise a majority of the voting power represented at a meeting of the shareholders, whether or not a quorum is present, may adjourn such meeting from time to time, and at such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified.
5
Section 6. Votes. Each share of the capital stock of the corporation shall have the number of votes provided for in the Articles and the manner of voting said shares shall be as provided in the Articles. Any shareholders, whether of Class A or of Common Stock, shall have such right to cumulate his votes and shares at any meeting as may from time to time be provided by law.
Section 7. Proxies. Subject to any applicable provisions of law, the Articles, or these Regulations, any shareholder may, by instrument in writing signed by himself or by his duly authorized attorney, authorize any other person or persons (and no such person need be a shareholder) to vote and otherwise act for such shareholder at any shareholders' meeting. Every such instrument shall, before the person authorized shall vote or act thereunder, be filed with the Secretary of the meeting; provided nevertheless, that in the absence of the Secretary, such instrument shall be filed with the presiding officer of said meeting.
Section 8. Procedure. Shareholders' meetings shall be called to order and, unless the shareholders shall otherwise order by special vote, be presided over by the Chairman of the Board, if any, or if there is no Chairman of the Board, or in his absence, by the President, or in his absence, by the Executive Vice President. The Secretary of the corporation, or an Assistant Secretary, shall keep the minutes of every shareholders' meeting, and shall include therein a copy of any request or instructions to call, and a copy of the notice calling such meeting. Such Secretary shall exhibit to such shareholders' meeting an alphabetically arranged list, or classified lists, of the shareholders of record as of the applicable record date, who are entitled to vote, showing their respective addresses and the number and class of shares held by each. Such list or lists when certified by the officer or agent in charge of the transfers of shares shall be prima facie evidence of the facts shown therein. In the absence of the Secretary of the corporation, or an Assistant Secretary, any person may be chosen by the shareholders present to keep the minutes. Unless otherwise ordered by the shareholders, the order of business at the annual shareholders' meeting shall be:
6
(a)
Reading of the minutes of the last preceding annual meeting, and of the last intervening special meeting, and the approval or correction thereof, or other action thereon;
(b)
Presentation and consideration of the annual statements required by law, and the reports of the President, Treasurer, Directors, and other officers and committees, if any;
(c)
Election of Directors;
(d)
Unfinished business; and
(e)
New and miscellaneous business.
Section 9. Inspectors of Election. At all meetings of the shareholders for the election of directors, three inspectors of election shall be selected by the presiding officer of the meeting. The inspectors shall determine the number of shares outstanding, the voting rights with respect to each, the shares represented at the meeting, the existence of a quorum, and the authenticity, validity and effect of proxies; receive votes, ballots, consents, waivers or releases; hear and determine all challenges and questions arising in connection with the vote; count and tabulate all votes, consents, waives and releases; determine and announce the result; and do such acts as are proper to conduct the election or vote with fairness to all shareholders. The decision, act or certificate of a majority of the inspectors shall be effective in all respects as the decision, act or certificate of all. The certificate of the inspectors shall be prima facie evidence of the facts stated therein and of the vote as certified by them.
Section 10. Action without Meeting. Any action which under provision of law, the Articles, or these Regulations may be taken at a shareholders' meeting, may be taken without a meeting if authorized by a writing or writings signed by all of the shareholders who would be entitled to notice of a meeting for such purpose, which writing or writings shall be filed with or entered upon the records of the corporation.
Section 11. Alternate Communications. In every instance in which Article II of these Regulations requires notice or other communication in writing, and in every instance in which Article II of these Regulations requires delivery of notice or other communication
7
either in person or by mail, notice or communication may be given by electronic, facsimile or telephone means, or by such other means deemed by the Board of Directors to be sufficiently secure and reliable, and such communication shall be deemed given when transmitted accordingly.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Number and Term of Office. Except where the law, the Articles or these Regulations require any action to be authorized or taken by shareholders, the business and the property of this corporation shall be exercised, conducted, and controlled by the Board of Directors, which shall be composed of six members, or such other number, not less than three (3), as the shareholders may from time to time by resolution fix and determine. No director need be a holder of any shares of stock of the corporation. Each director shall be elected annually at the annual meeting of the shareholders or any adjournment thereof, or at such special meetings therefore as shall be called for the purpose. Such election shall be by ballot. Directors so elected shall hold office until the next annual election or until successors shall be elected and shall qualify. No reduction of the number of directors shall have the effect of removing any director prior to the expiration of his term of office. In addition to the authority of the shareholders to fix and determine the number of directors as set forth above, the Board of Directors may change the number of directors by resolution of the Board of Directors to a number not greater than nine (9). The directors who are in office may fill any director's office that is created by an increase in the number of directors by resolution of such directors.
Section 2. Resignation and Vacancies. Any director may, at any time, resign by written resignation delivered to the Secretary, or an Assistant Secretary of the corporation, and such resignation shall, unless otherwise specified therein be effective upon such delivery. The Board of Directors may, in any case provided by law, declare vacant the office of a director. Any vacancy on the Board of Directors may be filled by the remaining directors, though less than a quorum, for the balance of the unexpired term of
8
its former incumbent by the majority vote of the remaining directors in conformance with law.
Section 3. By-laws. The Board of Directors shall have power and authority to make all such rules and to prescribe and enforce all such By-laws, not inconsistent with any application provisions of law, of the Articles or of these Regulations, as they may deem expedient.
Section 4. Compensation. For their attendance at meetings of the Board of Directors, or of any committee of the Board, directors may be paid such compensation as the Board of Directors shall, from time to time, fix; and there shall be paid to all directors their reasonable expenses incurred in attending meetings of the Board of Directors or of any committee thereof.
Section 5. Committees. The directors may at any time elect three or more of their number as an executive committee or other committee, which shall, in the interval between meetings of the Board of Directors, exercise such powers and perform such duties as may from time to time be prescribed by the Board of Directors. Any such committee shall be subject at all times to the control and direction of the Board of Directors. Unless otherwise ordered by the Board of Directors, any such committee may act by a majority of its members at a meeting or by a writing or writing signed by all its members. An act or authorization of an act by such committee within the authority delegated to it shall be effective for all purposes as the act or authorization of the Board of Directors.
ARTICLE IV
OFFICERS
Section 1. Principal Officers. The officers of the corporation shall consist of a President, an Executive Vice President, one or more Vice Presidents as the Board shall determine, a Treasurer, a Secretary and such other officers (who may include a Chairman of the Board) and such assistant officers as may be deemed expedient by the Board of
9
Directors for the proper conduct of the business of the corporation. The officers shall be elected by the Board of Directors. Any two or more offices may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity if such instrument is required by law, by the Articles or by these Regulations to be executed, acknowledged or verified by any two or more officers and, except as otherwise provided by law, the Board of Directors may, at any time in its discretion, abolish any office or offices created by it, and the term of office of any holder of such office shall thereupon terminate, anything in these Regulations contained to the contrary notwithstanding. In case of the absence or disability of any officer of the corporation, the Board of Directors may, unless otherwise provided herein, delegate to any other officer or to any director of the corporation, all, or any part, of the authority and duties of any such absent or disabled officer during the period of his absence or disability, subject nevertheless, to any written contracts of employment that may exist between the corporation and any such officer or officers. The directors may, except as otherwise required by law, leave vacant the election of any one or more of the above offices at any election as in their discretion, is deemed advisable and in the best interest of the corporation. Any officer may be removed at any time by the affirmative vote of a majority of the whole Board of Directors without prejudice to the contract rights of such officer. Otherwise the officers of the corporation shall hold office until their successors are chose and qualify in their stead.
Section 2. Compensation and Bond. The compensation of the officers of the corporation shall be such as shall from time to time, be fixed by the Board of Directors by the affirmative vote of a majority of those in office and irrespective of any personal interest of any of them. The directors shall have authority to establish reasonable compensation which may include pension, disability and death benefits for services to the corporation by both directors and officers, or the Board may delegate such authority to one or more officers or directors. Each of the principal officers of the corporation designated by the Board of Directors shall give such bond or bonds secured by adequate surety, in such amounts as may from time to time be required by the Board of Directors.
10
Section 3. Authorities and Duties.
(a)
Chairman of the Board: The Chairman of the Board shall preside at all meetings of the shareholders and Board of Directors of the corporation and shall perform such other duties as may be prescribed by the Board of Directors.
(b)
President: The President shall, if there is no Chairman of the Board or in his absence, preside at all meetings of the shareholders and Board of Directors of the corporation; shall, subject to the direction and control of the Board of Directors, be the chief executive officer of the corporation, and have general supervision and direction of all other officers of the corporation, and general charge of its business and property; shall be a director and ex officio a member of all standing committees of the Board of Directors; shall, unless otherwise ordered by the Board of Directors, as provided herein, sign all instruments of writing to which it is customary to affix the seal of the corporation; shall keep the Board of Directors informed about the affairs of the corporation; and shall make to the annual meeting of the shareholders a statement of the corporate affairs; but subject to the general control and direction of the Board of Directors, any of his authorities or duties may be delegated by him or by the Board of Directors, to any officer of the corporation; subject nevertheless, to all the terms, provisions and conditions of the contract of employment between any President of the corporation and the corporation.
(c)
Executive Vice President: The Executive Vice President, subject to the direction and control of the President and of the Board of Directors, shall have general supervision and direction of all officers of the corporation subordinate to him; and shall have general charge of the business and property of the corporation. In the absence of the President, or in the event of his inability to act, or his disability, the Executive Vice President shall have and perform the duties of the President. But subject to the general control and direction of the President and of the Board of Directors, any of his authorities or duties may
11
be delegated by him or by the Board of Directors, to any officer of the corporation; subject nevertheless, to all the terms, provisions and conditions of the contract of employment between any Executive Vice President of the corporation and the corporation.
(d)
Vice Presidents: The Vice Presidents shall be created in such number, possess such designation and identification, have such authorities and duties and report to such superior officer or officers of the corporation as the Board of Directors may from time to time prescribe; but subject to the general control and direction of the President and of the Board of Directors. Any of the authorities or duties of any Vice President, may be delegated by him or by the Board of Directors to any subordinate officer of the corporation.
(e)
Treasurer: The Treasurer, in addition to all authority and duties provided by law, shall, subject to this general supervision and control of the President and of the Board of Directors of the corporation, have custody of the corporate funds and securities; shall keep full and accurate accounts of all receipts and disbursements thereof; shall deposit all moneys and other funds of the corporation in such depositories as shall from time to time be designated by the Board of Directors, and withdraw the same for corporate purposes; and shall have such other authorities and duties as may be prescribed by the Board of Directors. Subject to the general control and direction of the President and of the Board off Directors, any of the Treasurer's authorities or duties may be delegated by him, or by the Board of Directors, to any officer of the corporation.
(f)
Secretary: The Secretary, in addition to all authority and duties provided by law, shall, subject to the control of the President and of the Board of Directors, keep and sign the minutes of all meetings of the shareholders, the Board of Directors, and the committees thereof; keep such other records as the President, the Board of Directors or any committee thereof shall require; have charge of the corporate seal, and (subject to the rules and regulations of
12
the Board of Directors and the Transfer agents and registrars, if any, of the shares of the corporation) have custody of the share certificate books and share records, and attend to the issuance of certificates for shares of the corporation; and sign all instruments to which the seal of the corporation shall be authorized to be affixed (provided, however, that certificates for shares of the corporation shall be signed as specified in Section 1 of Article I of these Regulations); but subject to the general control and discretion of the president, any of his authorities or duties may be delegated by him, or by the Board of Directors, to any officer of the corporation.
(g)
Assistant Secretaries: The Assistant Secretaries shall be assistants to the Secretary and shall perform such duties as may be delegated to them by the Secretary. In the absence or disability of the Secretary, the Assistant Secretaries in the order of their seniority, unless otherwise determined by the Board of Directors, shall perform the duties of the Secretary.
(h)
Assistant Treasurers: The Assistant Treasurers shall be assistants to the Treasurer and shall perform such duties as may be delegated to them by the Treasurer. In the absence or disability of the Treasurer, the Assistant Treasurers in the order of their seniority, unless otherwise determined by the Board of Directors, shall perform the duties of the Treasurer.
(i)
Other Offices: Other offices created by the Board of Directors from time to time, shall have such duties, powers and authorities as the Board of Directors or the principal officers, hereinbefore named, may from time to time delegate to such assistant or subordinate officers.
(j)
General Provisions: In addition to the authorities and duties hereinbefore provided, the principal officers of the corporation shall have such other authorities and duties as are usually incident to such officers in corporations engaged in business similar to that of this corporation, and such other authorities and duties as shall from time to time be conferred upon, or
13
required of, them, respectively, by the Board of Directors. Anything in these Regulations to the contrary notwithstanding, the Board of Directors may at any time provide, either for specific cases or generally, that any written instrument to be executed, signed or delivered, or any other thing to be done, in the name or upon behalf of the corporation, may or shall be so signed, executed, signed or delivered, or any other thing to be done, in the name or upon behalf of the corporation, may or shall be so signed, executed, delivered or done by any one or more of the principal officers, or by any other officer, agent or attorney of the corporation, designated for such purpose by the Board of Directors; provided, however, that certificates for shares of the corporation shall be signed as provided in Section 1 of Article I of these Regulations.
Section 4. Vacancies. If any office shall become vacant by reason of death, resignation or disqualification or other cause, the directors by the affirmative vote of a majority thereof, may elect a successor to hold office of the unexpired term in respect to which such vacancy occurred or was created; provided always, that in so doing, the directors shall observe and be bound by the applicable terms, provisions and conditions of any existing and applicable contracts between such officers and the corporation.
ARTICLE V
INDEMNITY OF OFFICERS AND DIRECTORS
Section 1. Indemnification.
(a)
The corporation shall 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 he is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of a subsidiary corporation, against expenses, including attorney’s fees, judgments, fines, and amounts paid in settlement actually and reasonably
14
incurred by him in connection with such action, suit, or proceeding if he acted in good faith and in a manner 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 no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or 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 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, he had reasonable cause to believe that his conduct was unlawful.
(b)
The corporation shall 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 he is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of a subsidiary corporation, against expenses, including attorney’s fees, actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any of the following:
(1) Any claim, issue, or matter as to which such person is adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless, and only to the extent that the court of common pleas or the court in which such action or suit was brought determines upon application that, despite the adjudication of liability, but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court of common please or such other court shall deem proper;
15
(2) Any action or suit in which the only liability asserted against the director is pursuant to Section 1701.95 of the Ohio Revised Code.
Section 2. Determination. Any indemnification under Section 1 of this Article, 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 director or officer is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 1. Such determination shall be made as follows:
(a)
By a majority vote of a quorum consisting of directors of the corporation who were not and are not parties to or threatened with any such action, suit or proceeding.
(b)
If such quorum is not obtainable or if a majority vote of a quorum of disinterested directors so directs, in a written opinion by independent legal counsel other than an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the corporation, or any person to be indemnified, within the past five years.
(c)
By an affirmative vote of the holders of shares entitling them to exercise a majority of the voting power of the corporation.
(d)
By the court of common pleas or the court in which such action, suit, or proceeding was brought.
Section 3. Expenses.
(a)
Unless the only liability asserted against a director in an action, suit, or proceeding referred to in Section 1 of this Article is pursuant to Section 1701.95 of the Ohio Revised Code, expenses, including attorney’s fees, incurred by a director in defending the action, suit, or proceeding shall be paid by the corporation as they are incurred in advance of the final disposition of
16
the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director in which he agrees to do both of the following:
(1)
Repay such amount if it is proved by clear and convincing evidence in a court of competent jurisdiction that his action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the corporation or undertaken with reckless disregard to the best interests of the corporation.
(2)
Reasonably cooperate with the corporation concerning the action, suit or proceeding.
(b)
Expenses, including attorney’s fees, incurred by a director or officer in defending any action, suit or proceeding referred to in Section 1 of this Article, may be paid by the corporation as they are incurred, in advance of the final disposition of the action, suit, or proceeding as authorized by the directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer to repay such amount, if it ultimately is determined that he is not entitled to be indemnified by the corporation.
Section 4. Additional Provisions. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which such director or officer may be entitled under any agreement, any insurance purchased by the corporation, vote of the shareholders, or otherwise; shall continue as to a person who has ceased to be such director or officer, and shall inure to the benefit of the heirs, executors, and administrators of such person. It is the intent of this Article to provide indemnification to directors and officers to the fullest extent permitted by law. The provisions of this Article shall be deemed to be a contract between the corporation and each person who serves as such director or officer at any time while this Article is in effect. It is not intended that the provisions of this Article shall be applicable to matters as to which indemnification would be in contravention of the laws of the State of Ohio or of the United States of
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America whether as a matter of public policy or pursuant to statutory provision; and to such end, they shall be construed as severable.
Section 5. Insurance. The corporation shall have the power to purchase and maintain insurance or furnish similar protection, including, without limitation, trust funds, letters of credit, or self-insurance on behalf of any person who is or was such director or officer, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of Section 1. Insurance may be purchased from or maintained with a person in which the corporation has a financial interest.
Section 6. Effective Date. This Article V shall apply to all claims made on or after April 16, 1987 by a director or officer of the corporation for indemnification whether or not the facts giving rise to the action, suit, or proceeding occurred prior to or subsequent to April 16, 1987.
ARTICLE VI
MISCELLANEOUS
Section 1. Accounting Year. The accounting records of the corporation shall be deemed to be on a calendar year basis to begin January 1st of each year and to end on December 31st of each year. Such accounting year shall continue from year to year unless and until changed by the Board of Directors.
Section 2. Principal Office. The principal office of the corporation shall be located at the plant of the corporation at 626 Albany Street, in the City of Dayton, Montgomery County, Ohio, or at such other place or places in said City of Dayton as may from time to time be designated by the Board of Directors.
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Section 3. Seal. The corporate seal of this corporation shall be circular, with the words "The Standard Register Company, Dayton, Ohio" in the outer circle, and the words "Corporate Seal" in the inner circle.
Section 4. Control Share Acquisitions. Section 1701.831 of the Ohio Revised Code shall not apply to control share acquisitions of shares of the corporation.
ARTICLE VII
AMENDMENTS
These Regulations may be changed, added to, or repealed, in whole or in part, by the affirmative vote of the holders of record of shares entitling them to exercise a majority of the voting power of the corporation.
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Exhibits 5.1 and 23.2
Charles F. Hertlein, Jr.
(513) 9778315
December 16, 2013
The Standard Register Company
600 Albany Street
Dayton, Ohio 45417
Ladies and Gentlemen:
This opinion is rendered for use in connection with the Registration Statement on Form S-3, prescribed pursuant to the Securities Act of 1933, to be filed by The Standard Register Company (the “Company”) with the Securities and Exchange Commission on or about December 16, 2013, under which 3,679,389 shares of the Company’s Common Stock, $1.00 par value, (“Common Stock”) are to be registered.
We hereby consent to the filing of this opinion as Exhibits 5.1 and 23.2 to the Registration Statement and to the reference to our name in the Registration Statement.
As counsel to the Company, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of such statutes, documents, corporate records, certificates of public officials, and other instruments as we have deemed necessary for the purpose of this opinion, including the Company’s Articles of Incorporation and Regulations and the record of proceedings of the stockholders and directors of the Company.
Based upon the foregoing, we are of the opinion that:
1.
The Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of Ohio.
2.
When the Registration Statement shall have been declared effective by order of the Securities and Exchange Commission and up to 3,679,389 shares of Company Common Stock have been issued and sold upon the terms set forth in the Registration Statement, such shares will be legally and validly issued and outstanding, fullypaid and nonassessable.
Very truly yours,
DINSMORE & SHOHL LLP
/s/Charles F. Hertlein, Jr.
Charles F. Hertlein, Jr.
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-3 of The Standard Register Company (the “Company”) of our report dated March 8, 2013 (except for the retrospective application effects pertaining to the change in pension accounting method and the impacts of the reverse stock split as described in Notes 2 and 3, as well as the additional disclosure from the adoption of ASU 2013-2 as described in Note 1, as to which the date is December 16, 2013), relating to the consolidated financial statements of the Company, which appears in the Company’s Annual Report on Form 10-K (as revised in a Form 8-K filing dated December 16, 2013) for the year ended December 30, 2012.
/S/ BATTELLE RIPPE KINGSTON LLP
(FORMERLY BATTELLE & BATTELLE LLP)
Dayton, Ohio
December 16, 2013
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of The Standard Register Company of our report dated April 30, 2013 relating to the consolidated financial statements of Workflow Holdings LLC, which appear in The Standard Register Company’s Current Report on Form 8K dated August 1, 2013. We also consent to the reference to us as experts under the heading “Independent Accountants” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Cincinnati, OH
December 16, 2013